Firm urges top court to fix contract bidding flaws

A company that lost a $428-million federal contract in 2007 is calling on Canada’s top court to weigh in on the long-running case, arguing the fairness and integrity of the country’s public procurement process is at stake.

The Supreme Court of Canada should decide among other things whether a winning bidder should be disqualified if it cannot deliver what it promised, and what the remedy should be if a judge finds the procurement process to have been unfair, TPG Technology says in its application for leave to appeal.

The federal government argues against reopening the case, saying TPG is trying to get the Supreme Court to weigh in on factual matters particular to a specific case that have already been decided and which have no wider bearing. In addition, the government maintains relevant procurement law is already well settled.

The case arose when TPG Technology was shut out in 2007 from running the main computer networks at the federal Public Works department, something the Ottawa-based company had done since the late 1990s. Instead, the sevenyear contract, which called for delivery of a team of more than 100 qualified IT professionals, went to Montreal-based CGI Group.

CGI presented an “audacious” bid that effectively relied on it being able to recruit TPG’s contractors, which it was unable to do, TPG argues in its application.

“The winning bidder could not deliver the very subject matter which was required in the procurement,” TPG asserts. “Yet, the winning bidder in this case was not disqualified. It was permitted, even assisted by the government, to try to become compliant.”

After several attempts at a remedy before the Canadian International Trade Tribunal, TPG president Don Powell sued Public Works for $250 million. In 2014, Federal Court Judge Russel Zinn threw out the lawsuit despite finding that the government had failed to evaluate parts of TPG’s bid fairly.