Lawsuit risk cited as reason to waive SNC-Lavalin's low technical score: memo
City releases 100s of pages of documents on controversial Trillium Line procurement process
The city's external legal advisers warned that it could be sued if it threw SNC-Lavalin out of the bidding process for the Trillium Line extension because the technical scoring criteria weren't very clear, newly released documents show.
As CBC reported last March, SNC-Lavalin won a $1.6-billion contract to build and maintain the Trillium Line expansion, even though it failed to achieve the 70-per-cent minimum score for the technical evaluation.
"There is a lack of clarity to the grading and scoring chart" in the technical evaluation for Trillium Line Stage 2 contract, according to memo written by lawyers from Norton Rose Fulbright, the firm that oversaw the bidding process and that provided outside legal advice to the city.
"If a proponent could show that the evaluation and score which led to its proposal not continuing in the evaluation process was flawed, then there is a strong likelihood that a court would at the very least award significant damages," according to the Norton Rose Fulbright memo dated Oct. , 2018.
The legal opinion was part of hundreds of pages of documents released late Monday related to the controversial SNC-Lavalin contract. Mayor Jim Watson said he believes information contained in the documents will inspire confidence in the procurement process.
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- SNC-Lavalin failed to meet technical bar for LRT bid — twice
It was early August when the city finally admitted that SNC-Lavalin scored below 70 per cent, twice, in its technical evaluation. At the time, the city also revealed that the RFP gave the city sole discretion to allow a bidder to continue in the procurement process without meeting the technical minimum.
The city decided to exercise that discretion, based on a legal opinion from Norton Rose Fulbright. That legal advice has been confidential until now.
The memo was written by three Norton Rose Fulbright lawyers: Martin Masse, Benedict Wray and Stephen Nattrass — a lawyer who has represented SNC-Lavalin in a criminal case.
The memos says that "if a court were to scrutinize the process followed in these evaluations … it is unclear whether [the court] would consider the evaluation process fair."
While Norton Rose Fulbright lawyers advised that the scoring charts were "unclear", the law firm was hired by the city to run the Trillium Line procurement and would have overseen the setting of scoring criteria.