A tale of two tenders: Public bidding for projects on Tłı̨chǫ land an 'insult', says grand chief

Tłı̨chǫ Grand Chief George Mackenzie says the contracts for two construction projects should have been negotiated directly with Tłı̨chǫ companies, which are capable of carrying out the work involved.

N.W.T. government cancelled tender for North Arm campsites, but not one for Rae Access Road

Tłı̨chǫ Grand Chief George Mackenzie at the 2019 Tłı̨chǫ annual gathering in Gamètì, N.W.T. Mackenzie says the contracts for two construction projects should have been negotiated directly with Tłı̨chǫ companies, which are capable of carrying out the work involved. (Walter Strong/CBC)

The Northwest Territories government had two tenders out for notable construction work within Tłı̨chǫ territory this season: one was cancelled, the other was not, and the Tłı̨chǫ grand chief says neither should have been put out for public bidding in the first place. 

The territorial government had plans to build 15 campsites at North Arm Territorial Park near Behchokǫ̀, N.W.T., by the fall, and invited bids from the public. On July 10, bidders were notified that the tender had been withdrawn.

Days later, the Tłı̨chǫ Government condemned the public tendering of a different project on its land — the reconstruction of the Rae Access Road into Behchokǫ̀ — and demanded the territorial government cancel it. 

The contracts for both projects, says Grand Chief George Mackenzie, should have been negotiated directly with Tłı̨chǫ companies, which are capable of carrying out the work involved.

He said denying Tłı̨chǫ communities job opportunities close to home, and the chance to build capacity, undermines the Tłı̨chǫ land claim and self-government agreement, called the Tłı̨chǫ Agreement.   

"Getting these contracts is capacity-building for our young people. It's also capacity building to build our companies slowly so someday we will be legitimately competitive," said Mackenzie. 

"They deny us all that and say 'it is what it is.' That's an insult."

'Crumbs they're throwing at us'

Mackenzie said the Tłı̨chǫ Government raised the issue of the public tender for the North Arm campsites during talks with the territorial government over the Rae Access Road. 

The territory ultimately cancelled the campground tender. Infrastructure spokesperson Greg Hanna said in an email this was done to "allow for a review of the procurement method for this project, with details to come at a later date."

The Rae Access Road tender, however, went ahead. 

In Mackenzie's view, the cancelled campground tender is "crumbs they're throwing at us to keep us quiet on this bigger project" — the Rae Access Road reconstruction. 

A map showing the proposed route of the Rae Access Road, connecting the community of Behchokǫ̀ with N.W.T. Highway 3. (CBC)

He said the N.W.T. government can cancel the road tender without consequences, and negotiate a new contract with a Tłı̨chǫ firm. The Infrastructure minister has said cancelling could result in legal ramifications.

The territorial government's procurement policy allows it to circumvent the usual competitive contracting process and negotiate a contract with a specific company if it believes the deal will provide special benefits to northerners, create jobs and build capacity. 

Process was 'open and fair': minister

Infrastructure Minister Katrina Nokleby did not respond to requests for an interview. 

Instead, she said in an emailed statement that public procurement is "complex," and that federal funding rules for the road reconstruction job required them to put the project out to tender. It's unclear whether the North Arm campground project got federal money as well. 

Nokleby said the territorial government would need to seek federal approval to use a negotiated contract for the project, which could result in "significant delays."

Nokleby did not respond to requests for an interview. In a written statement, she said the territorial government using a negotiated contract for the project could result in 'significant delays.' (Mario De Ciccio/Radio-Canada)

"The Department of Infrastructure used an open and fair tender process on this contract in accordance with [territorial government] procurement policies and Canadian best practices," stated Nokleby. 

"The process that was undertaken does not contravene the [territorial government's] requirements with regards to contracting based on the [our] interpretation of the Tłı̨chǫ Agreement."

She went on to state that while a Tłı̨chǫ firm was one of the companies to respond to the Rae Access Road tender, after adjustments made under the business incentive policy, which gives preference to N.W.T. businesses, Tłı̨chǫ Engineering & Environmental did not come in with the lowest bid.

Without saying which company was awarded the contract, Nokleby said the Infrastructure Department will ask the contractor to look at maximizing Tłı̨chǫ involvement beyond what it committed to in its bid submission. 

To Mackenzie, though, this isn't good enough.

"[The territorial government] did nothing to ensure Tłı̨chǫ were not shut out," he said. "The [territory] could fix this by cancelling the [request for proposals] and rewriting it to protect Tłı̨chǫ jobs."