Top court won't weigh in on federal contract bidding case
Ice coats tree branches outside of the Supreme Court of Canada in Ottawa on December 10, 2012. (Adrian Wyld/The Canadian Press)
Colin Perkel, The Canadian Press
Published Friday, April 21, 2017 12:52PM EDT
TORONTO -- A company that argued the fairness and integrity of Canada's public-procurement process is being compromised has lost its bid to make its case to the country's top court.
In a decision this week, the Supreme Court of Canada refused to hear an appeal from Ottawa-based TPG Technology, which lost a $428-million federal contract in 2007.
TPG maintains that the winning bidder for the contract to run the main computer networks at the Public Works department was unable to deliver what it had promised. Rather than disqualify the company, the government instead helped it become compliant by way of a new contract, TPG alleged in a $250-million lawsuit its president, Don Powell, filed against the government.
The courts, however, rejected the lawsuit despite one judge's finding that the government had been unfair to TPG, prompting the company to turn to the Supreme Court.
Powell did not immediately respond to a request for comment Friday.
Allan Cutler, an Ottawa-based consultant and procurement expert, said cases such as these exposed a "loophole" in current law that the Supreme Court should have closed. The current approach, he said, allows a firm to bid dishonestly for a public-sector contract and then rely on an amended contract to correct the dishonesty.
"This means that procurement corruption will continue," Cutler said of the top court's refusal to hear the case.
In arguing against granting leave to appeal, the federal government said TPG was trying to get the Supreme Court to weigh in on factual matters particular to a specific case that had already been decided and which had no wider bearing. The government also maintained relevant procurement law was already well settled.
The decision means TPG will have to pay the government more than $600,000 in legal costs as originally awarded by Federal Court.
The case arose when TPG Technology was shut out in 2007 from running the Public Works computers, something it had done since the late 1990s. Instead, the seven-year contract, which called for delivery of a team of more than 100 qualified IT professionals, went to a Montreal-based company.
Cutler has said he knows of a case in which a limousine company lost a contract, but then discovered the winning bidder did not have the needed licences. However, the government helped the competitor repair its bid and keep the contract, he said.