TPG’s last kick at the can seeking lost profits
Technology firm has had to wait seven years to have its day in court
It took Don Powell nearly seven years to have his six weeks in court. On this, the final week of a civil trial in front of a skeptical federal court judge, it was heavy going for the president and owner of TPG Technology.
Powell has long maintained that his company in 2007 was robbed of a $428-million contract to provide computer services through the federal Public Works department. On Wednesday, Powell’s lawyer Peter Mantas laid out the multiple strands of a case.
“This is a big case involving a lot of money,” Mantas told Justice Russel Zinn. “This is not a case where the facts are grey. What happened here was pretty remarkable.”
A key contention is that the ultimate winner, CGI Group of Montreal, submitted a proposal that should have been discarded by Public Works because it did not meet all the technical requirements, most critically, the ability to produce 159 qualified experts in computers and software. Evidence at trial showed that CGI had been counting on using many of the workers already in place, even though they were under contract to TPG Technology.
CGI, which has thousands of employees, assembled a team of its own, 133 strong. But Mantas derided these as “place holders” for the A team — the TPG contractors who already knew their way around the government computer networks.
“There was no pretence that (the 133) was the A team,” he said.
Zinn interjected many times during Mantas’s daylong synopsis, pushing to understand the basis for TPG’s assertion that it is owed a small fortune in lost profits.
“What’s wrong with a bidder saying, ‘We’ll do our best to retain the people there’?” the judge asked in reference to CGI’s strategy of targeting the TPG workers.
Mantas responded: “CGI can’t just say I’m going to try to get the incumbents. The contracting authority (Public Works) needs to know you’re in a position to deliver.”
Mantas pointed out that IBM, in submitting its bid, got permission from TPG contractors. “CGI just assumes they’ll get it,” Mantas added. “It was an audacious assumption.”
Mantas alleged that CGI was counting on the desperation of TPG consultants who faced the loss of their jobs on Dec. 21, 2007, as the TPG contract finally wound down. Many did sign on with CGI, but not enough for the Montreal firm to be able to meet all the requirements for the contract it had just won. Indeed, CGI enlisted the help of Public Works to locate additional TPG workers.
Once Public Works realized it was dealing with a non-compliant CGI bid, Mantas asserted, it should not have worked hand-in-hand with CGI to try to make it compliant. “That’s simply not fair,” he said. The appropriate course would have been to declare CGI non-compliant, Mantas said.
The TPG lawyer also maintained that TPG Technology was hurt by an unfair evaluation. The evidence showed there was some confusion about what technical metrics should be applied to the three contenders — CGI, IBM and TPG — which had been running the government computers in question since 1999.
On the first attempt at consensus, the marks were relatively close. Then, the five evaluators realized they had applied different metrics and relaunched the evaluation process. During the second attempt to reach a consensus, TPG was awarded sharply lower marks in some technical categories — a surprising result since it was the incumbent firm.
Zinn, however, queried Mantas closely on the issue of marks, noting that second-guessing by the five Public Works evaluators is only natural.
“Where’s the unfairness?” he asked rhetorically.
“I’ve marked papers and sometimes you get to a new paper that’s different. You say, ‘Wait a minute’ — you see things in a whole new light.”
TPG was unable to produce emails or other documents to explain the apparent anomalies in the grading of the three bidders. Instead, Mantas showed how the dots lined up and left it up to the judge to connect them.
On Thursday, lawyer Peter Osborne will present the government’s final defence in what will likely be the last day of the trial.
Zinn is expected to render a written ruling in this fall.