Losing bidder seeks disclosure on GN policies for procurement
Last-minute legal 'huddle; clears way for boarding contract
The Nunavut government can sign a contract with the Nova Group of Companies to build a badly needed boarding facility in Iqaluit for patients and their families who have to come to the capital for medical treatment.
Qikiqtaaluk Corp. agreed to drop an injunction application against awarding the contract last week when lawyers for QC, the GN and the Nunavummi Nangminiqaqtunik Ikajuuti contracting appeals board got together outside an Iqaluit courtroom before a judicial review to hear the application.
The GN had verbally awarded the contract to Nova last September after receiving two bids on its request for proposals for the 90-bed facility, intended to replace the 36-bed Tammaativvik building by April 2010.
But QC, the losing bidder, appealed the decision to the NNI appeals board, and when that failed, sought a judicial review of the appeals process, including the injunction against awarding the contract to Nova until the appeal could be decided.
QC, the development arm of the Qikiqtani Inuit Association, agreed at the pre-court meeting to drop its injunction against the contract going ahead.
But it still wants proof the GN applied the NNI procurement rules properly when it awarded the contract to the Nova Group, the organization's lawyer Sylvie Molgat told Nunavut Chief Justice Beverly Browne.
Edmonton-based Nova also built and owns the Nova Inn in Iqaluit, and is building itself the Kamotiq Centre on the site of the old landmark Kamotiq Inn at Iqaluit's four corners.
Under the NNI rules the GN allows Nunavut-based businesses a seven per cent advantage in pricing on their bids on government projects. Inuit-owned firms get an additional seven per cent advantage, and local businesses get a further seven per cent again, for a maximum allowable total of 21 per cent.
The goal of the NNI policy under of the Nunavut Land Claims Agreement, is to "maximize the participation of Nunavut, Inuit, and community-based (local) businesses in Government of Nunavut contracting."
Molgat said the NNI appeals board acted improperly when it refused to disclose any information to QC about how it assessed the bids, and then declared the appeal process closed when QC said it needed more information in order to proceed.
QC says the board violated the rules of natural justice and procedural fairness by denying the corporation any disclosure.
But how much disclosure is enough, and how much is too much, is the question all three lawyers agreed they want Justice Browne to decide.
QC shares the same concerns as the successful bidder about the protection of its confidential business information, Molgat said.
"At a minimum we must be allowed to see what was done to our bid," she said. "But what if the NNI rules were correctly applied to the QC bid, but not to the Nova bid? An error could have been made in applying the rules to either bid."
When Justice Browne asked again for clarification on what QC needs, Molgat said: "I think we are entitled to see our unadjusted and our adjusted score."
As for QC's right to see Nova's unadjusted and adjusted scores, "perhaps not," admitted Molgat. But the corporation does need "some element of assurance that the rules were properly applied to both bids," she said.
Michael Chandler, a lawyer for the appeals board, told Justice Browne the board finds itself "between a rock and a hard place."
This is the first substantive appeal the board has had to deal with, Chandler said, and in addition to "a practical solution to this case," it would also like some guidance from the court about how to handle appeals and disclosure questions in future cases.
"We have no argument with the principle that the Contracting Appeals Board is bound by the rules of natural justice and procedural fairness. But what are they in this case?"
GN counsel David Savoie, noted that all bids the GN receives on requests for proposals "are given to us on a confidential basis. The Government of Nunavut favours a transparent and open process in fairness to the public," he said, "but within the principles of fairness and confidentiality."
He gave Justice Browne a sealed envelope containing information on the bids, in which he had highlighted in yellow "what we are comfortable passing to QC."
Justice Browne reserved decision, but said she would consider the contents of the envelope and decide what should be made available to Qikiqtaaluk Corp.
She would also, she added, identify some general principles for the appeal board to follow in order to "breathe some life into this process."