Bombardier, Metrolinx back in court
Rail manufacturer claims provincial transit agency unfairly prevented it from bidding on lucrative contract
Bombardier is taking Metrolinx to court for the second time this year, in the latest sign that the relationship between the Quebec-based rail manufacturer and the provincial transit agency has badly deteriorated.
In an application filed with the Ontario Divisional Court on Tuesday, Bombardier claims that Metrolinx, which is the government agency responsible for transit planning in the GTHA, unfairly prohibited it from bidding on a lucrative contract to operate its Toronto-area rail services.
“Metrolinx improperly, arbitrarily, unfairly, and unlawfully excluded Bombardier from participating in the Regional Express Rail (RER) operator procurement by designating Bombardier as . . . ineligible,” reads the company’s application. “Bombardier has a right to compete in this procurement process on an equal footing and with the same rights as its competitors.”
Bombardier currently holds the contracts to operate Metrolinx’s GO Transit and UPX service until 2023.
Last month, Metrolinx issued a request for qualifications (RFQ) to identify potential bidders to take over the lines after the current deals expire.
By that time, the agency plans to be well on its way to drastically expanding GO service as part of the RER program, which is expected to quadruple the num- ber weekly GO trips from 1,500 to 6,000 by 2025.
Metrolinx says it prohibited Bombardier and at least two other companies that provide maintenance for the rail lines from participating in the RFQ in order to avoid a conflict of interest.
“One of the main duties of the successful bidder will be to carry out an assessment of our current operations and service providers. A current operator cannot oversee this function objectively.
“That’s why Bombardier will not be eligible to fulfil that role,” Metrolinx spokesperson Anne Marie Aikins wrote in an email Tuesday.
A Bombardier spokesperson refused to answer the Star’s questions, on the grounds that the issue is now before the courts.
But the company’s application alleges that Metrolinx’s decision to exclude it from the RFQ violates the Crown corporation’s “statutory and other legal obligations to provide fair and equal access to procurement processes.”
Bombardier claims it would “suffer irreparable harm” if it is unable to participate, because it would miss out on a contract it estimates could be worth more than $2 billion. (Metrolinx would not confirm that figure.)
The application asks the court to quash Metrolinx’s designation of Bombardier as ineligible, to stay the procurement process and to provide the company with a “reasonable opportunity” to participate in the RFQ.
Aikins said that Metrolinx has al- ready agreed to extend the deadline by two weeks, to Sept. 12, in order to answer questions from other potential bidders.
The latest legal dispute between Metrolinx and Bombardier is separate from the bitter court battle that played out earlier this year over a delayed $770-million order for light rail vehicles (LRVs) to run on the Eglinton Crosstown and other Toronto-area light rail lines.
Metrolinx placed the order with Bombardier in 2010 but moved to cancel it last year, claiming that the company had defaulted by not delivering two prototype vehicles on time.
Bombardier denied it was in default and filed an injunction against Metrolinx in February.
In April, a judge sided with the company, ruling that Metrolinx couldn’t terminate the deal for default without first going through the dispute-resolution process set out in the contract.
That process is ongoing but, in May, the province announced it would buy vehicles from Alstom, a Bombardier competitor, as a backup for the troubled Crosstown order.
Aikins stated the decision to exclude Bombardier from the RER procurement was not retaliation for the court loss, saying in an email that the LRV dispute was a “very separate” issue.