Discretionary power used to OK SNC-Lavalin's LRT bid rare, experts confirm
Background briefing follows release of bid documents
The procurement experts involved in the bidding process that saw SNC-Lavalin win a $1.6-billion LRT contract to extend Ottawa's Trillium Line say they don't know of another case where a discretionary power has been used to waive a bidder through the technical scoring evaluation, CBC learned in a background briefing Thursday.
CBC began reporting a year ago that SNC-Lavalin won the contract to extend the Trillium Line into Riverside South, even though the firm twice failed to meet the minimum 70 per cent score in the technical evaluation. Eventually, the city revealed that it had used a discretionary power to allow a proponent to stay in the bidding process — a power that councillors didn't even know existed when they voted to approve the project.
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It appears that the use of that discretionary power is highly unusual. The experts who were part of in the Trillium Line Stage 2 bid, and who have been involved of dozens of procurements, said they can't recall another instance where the clause was used in a similar way.
Score deemed close enough
That was one of the revelations from a short background briefing offered by subject experts involved in the bid to members of council and the media.
The experts agreed to answer questions related to the unprecedented release of hundreds of pages of formerly confidential bid documents, on the condition they not be named. The same experts will appear at Monday's finance and economic development committee, where their comments will be on the record.
Despite refusing to speak for attribution, the experts' comments provided glimpses into how the project was awarded to a company that the city's own technical evaluation team recommended be dropped from the competition.
For example, the experts said that because technical evaluation was by its nature more subjective than financial scoring, they felt that the fact SNC-Lavalin only missed the minimum score by three percentage points was a good enough reason to waive the normal requirements.
Mention of electric train system akin to typo
Nor did the experts seem overly concerned by the apparent holes in the technical bid, such as a lack of detail about a signalling and train control system, or the fact that an elevator was placed in the middle of a platform at Carling station.
As for references to equipment typical of electric train systems, such as an overhead catenary or traction-power substations — the Trillium Line is diesel, and would therefore have no need for such features — the experts likened the slip-up to a typo that didn't necessarily detract from the overall quality of the bid.
During the briefing, CBC also asked about the issue of apparent conflict of interest.
As previously reported, Norton Rose Fulbright was hired by the city to oversee the legal aspects of the procurement, even though the law firm routinely represents SNC-Lavalin in deals worth billions of dollars. The law firm didn't represent the Montreal-based engineering giant in the city's procurement process, and the city waived any conflict of interest concerns for the firm.
However, one of the lawyers who authored the legal opinions that ultimately led to the city's use of its discretionary power to waive SNC-Lavalin's poor technical score had personally worked for the giant company — and had not been screened for a conflict of interest.
Norton Rose Fulbright lawyer Stephen Nattrass is cited in SNC-Lavalin criminal proceedings, and was part of legal team that oversaw the company's sale of AltaLink, a deal worth $7.2 billion.
He was also one of the three Norton Rose Fulbright lawyers who wrote the legal opinions in October 2018 about allowing SNC-Lavalin to move ahead in the bidding process
Because Nattrass was part of the team that the city asked to give a legal opinion, and not someone directly involved in the evaluation process, he was not screened by the fairness commissioner.