Summary
SUMMARY
This report concerns the contracting process for the construction of the new indoor aquatic complex at Centre Rosemont, i.e. call for tenders No. 5846.
Following the adoption of the Montréal Aquatic Intervention Plan in 2013, Ville de Montréal recently implemented one of its components, the Montréal Aquatic Program, specifically, the construction of indoor aquatic facilities component. The program is intended to select, organize and financially support the boroughs with projects to build indoor aquatic facilities.
Ville de Montréal plans to build five (5) aquatic centres in the next few years, including one at Centre Rosemont – the subject of this report – representing budgeted investments of more than
$150 million.
The investigation by the Office of Inspector General (“OIG”) focused on the choice of swimming pools for the construction of Centre Rosemont. The objective was to shed light on the procedure used by Ville de Montréal to draft call for tenders No. 5846, on the two professional firms whose services were retained following call for tenders No. 16-15580, and on the allegations of bias in favour of a certain swimming pool manufacturer.
The investigation revealed several failures on the part of some individuals working for these firms, as well as Ville de Montréal stakeholders, including the project manager. The Inspector General therefore considers it appropriate to intervene in this matter and bring these failures to the attention of City Council.
In the present case, the Ville de Montréal project team called on architectural and engineering firms to advise them on the design of Centre Rosemont, the preparation of the plans, specifications and tender documents for its construction, and on supervision of the work. They did this through call for tenders No. 16-15580, which was awarded to Poirier Fontaine architectes Inc. (“PFA”) and GBI Expert-Conseils Inc. (“GBI”) by City Council on January 23, 2017.
The investigation showed that the Ville de Montréal project team initially favoured construction of swimming pools based on one available process; namely a concrete pool with a ceramic coating. However, following the recommendation of GBI pool specialist Réjean Savard and PFA architect Daniel Fontaine, the project team changed their mind and instead chose to go with another type of pool; namely a modular pool and more specifically, a pool manufactured by one company in particular, Myrtha Pools (“Myrtha”).
Thus, as of December 2017, the Ville de Montréal project team intended to specify Myrtha products in the documents comprising call for tenders No. 5846, while allowing potential bidders wishing to propose another brand to submit an equivalency request. It is important to point out that this practice was permitted under the legal framework in force until April 19, 2018.
However, the OIG obtained evidence that in past projects involving Réjean Savard and/or Daniel Fontaine, the equivalence criteria developed by them were unattainable for bidders wishing to propose brands other than Myrtha.
Email exchanges and Réjean Savard’s testimony revealed that when he received such equivalency requests in 2011-2012, he was not familiar with the products of the other brand, i.e.
the modular pools manufactured by Natare Pool Corporation (“Natare”). He therefore contacted the Canadian supplier of Myrtha products, who listed a series of technical elements specific to Myrtha and products unique to Myrtha that Natare could not possibly replicate. Réjean Savard admitted that he then based his own equivalency evaluation criteria on these elements. In each of the past call for tenders analyzed, the equivalency requests were denied.
As mentioned, the Centre Rosemont project and call for tenders No. 5846 were on track to follow the same path: the tender documents were going to specify Myrtha products and the equivalency requests were going to be evaluated by Réjean Savard and Daniel Fontaine. What’s more, when interviewed by OIG investigators, Réjean Savard made very telling comments, saying that when a construction call for tenders is launched with his firm, a Myrtha pool will be installed, and that the market is closed.
The OIG then met with the Ville de Montréal stakeholders to relate the findings of the investigation so far and allow them to make the necessary adjustments to avoid issuing a call for tenders biased in favour of a given manufacturer. Subsequently, the Office of Comptroller General was asked to intervene in its advisory role to the administrative units and guide the Centre Rosemont project team to ensure that actions were taken to remedy the situation before the publication of call for tenders No. 5846.
It bears mentioning that between its start in 2017 and its end initially scheduled for the end of summer 2018, the drafting process for call for tenders No. 5846 was governed and greatly affected by two legal frameworks. In addition to the regime in effect before April 19, 2018 and discussed previously, which allowed a particular brand to be specified in a call for tenders, the second legal framework applicable to call for tenders No. 5846 is the one that has been imposed since April 19, 2018 under section 573.1.0.14 of the Cities and Towns Act.
This framework stipulates that if a municipality requires technical specifications for a product, service or work, it must describe them in terms of performance or functional requirements rather than in terms of descriptive characteristics. Only when this is not possible may it use the descriptive characteristics of the product, service or work sought, and in which case, it must allow equivalency requests and may prescribe how these will be evaluated. This significantly changes how calls for tenders are drafted.
Thus, at the time of its intervention in August 2018, the Office of Comptroller General informed the Ville de Montréal project team on the workings of the new legal framework. It was then agreed that the tender documents, which until then had been prepared under the former legal regime and specified several Myrtha products, had to be rewritten to remove references to the Myrtha brand and replace them with neutral performance criteria. However, the investigation revealed that these instructions were not followed.
The evidence shows that despite the interventions of the OIG and the Office of Comptroller General, both the Ville de Montréal project manager and Daniel Fontaine drafted performance criteria incorporating several features of Myrtha products and included documents which, when read together, still only allowed Myrtha products to qualify for call for tenders No. 5846.
In essence, the documents comprising call for tenders No. 5846 show that with respect to the modular pools, the tender as currently drafted is biased towards a particular manufacturer and does not comply with section 573.1.0.14. Similarly, if it had been published under the former legal regime, the facts revealed by the investigation show that it would also have been biased towards a particular manufacturer because of the unfair evaluation of equivalency requests.
Consequently, the Inspector General recommends that the documents comprising call for tenders No. 5846 pertaining to modular pools be amended so as to comply with the legal framework now in effect and allow free competition. Furthermore, a strict and impartial equivalency process is central to ensuring a balance between the client’s needs and the objective of fair competition underlying public tenders. The facts revealed by this case support the need for increased oversight of such a process.
The Inspector General would like to point out that this report is not intended as a technical analysis to determine the type of swimming pool that Ville de Montréal should select but is instead aimed at ensuring the integrity of the contracting process.