Tercon Contracters Ltd vs. British Columbia… the rest of the story.
Official Opening of Kincolith Extension Highway
May 17, 2003
B.C. Transportation Minister Judith Reid is joined by Dr. Joseph Gosnell, president of the Nisga’a Lisims Government (left), and Robert Nault, Minister of Indian Affairs and Northern Development Canada (right), cutting a cedar ribbon to offically open the road between Laxgalts’ap (Greenville) and Gingolx (Kincolith) on May 17, 2003. More than 1,000 people gathered to celebrate the official linking of the two communities by road. Construction on the 29-kilometre, two-lane all-weather gravel road started in 2000. The $34 million, jointly-funded Kincolith Extension Highway traverses some of the most geo-technically challenging and visually stunning terrain in Canada.
~ from the MOT photo galleries. The project that initiated a case spanning nearly a decade.
First today, more from the Supreme Court of Canada’s reasons for judgement, with reference to the actions of the province of British Columbia, Ministry of Transportation:
…The Province accepted a bid from a bidder who was not eligible to participate in the tender and then took steps to ensure that this fact was not disclosed.
…The trial judge found that the respondent (which I will refer to as the Province) breached the express provisions of the tendering contract with Tercon by accepting a bid from another party who was not eligible to bid and by ultimately awarding the work to that ineligible bidder. In short, a bid was accepted and the work awarded to a party who should not even have been permitted to participate in the tender process.
…The Province appealed and the Court of Appeal reversed (2007 BCCA 592, 73 B.C.L.R. (4th) 201). Dealing only with the exclusion clause issue, it held that the clause was clear and unambiguous and barred compensation for all defaults
…On Tercon’s appeal to this Court, the questions for us are whether the successful bidder was eligible to participate in the RFP and, if not, whether Tercon’s claim for damages is barred by the exclusion clause.
…In my respectful view, the trial judge reached the right result on both issues. The Province’s attempts to persuade us that it did not breach the tendering contract are, in my view, wholly unsuccessful. The foundation of the tendering contract was that only six, pre-selected bidders would be permitted to participate in the bidding. As the trial judge held, the Province not only acted in a way that breached the express and implied terms of the contract by considering a bid from an ineligible bidder, it did so in a manner that was an affront to the integrity and business efficacy of the tendering process. One must not lose sight of the fact that the trial judge found that the Province acted egregiously by “ensuring that [the true bidder] was not disclosed” (para. 150) and that its breach “attacke[d] the underlying premise of the [tendering] process” (para. 146), a process which was set out in detail in the contract and, in addition, had been given ministerial approval as required by statute.
One does not require a degree in law to know that staff of the Ministry of Transportation( MOT) behaved in a clearly underhanded manner in this particular Tercon case. In any other venue, the actions might have even been construed as criminal, perhaps of a fraudulent nature, which begged me to ask some very pointed questions in the second installment of this series.
Questions that I strongly feel that not only the official opposition should be asking, but indeed, the general public.
After all, was it not our hard-earned tax dollars being spent here, on years of litigation that would not have occurred if the province of British Columbia were operating with openness, honesty and transparency? And I urge you to recall that in the reasons for judgement, the Supreme Court did not have to address the issue of awarding that $3million dollar judgement the original trial judge had ruled, because: ” The parties advise that the question of costs has been resolved between them and that therefore no order in relation to costs is required.”
Aha. There you have it. How much did all this litigation and settlement cost the citizens of BC ? An update on that in a future installment.
Let’s go back to biggest questions everyone wants to know the answers to.
Who, within the Ministry of Transportation, called the shots on this bid? Who really orchestrated this entire debacle? And more importantly, where are they now?
The one man’s name who comes up most in the reasons for judgement in the initial trial, upheld by the Supreme Court, is Tom Tasaka – a name very familiar to most people in the design build industry in British Columbia.
Tom Tasaka ( Pacific Liacom ) was the Project Director of the Kincolith Extension project, and in essence, the go-to guy for the both the contractors and the Project Evaluation Panel( PEP) . Evidence presented in the trial identified Tasaka as the first person to have direct knowledge of the joint venture between Brentwood and the uneligible bidder, Emil Anderson. (pg.5, section 20 in the above highlighted PDF file) .
Tom Tasaka’s assistant, Nasir Kurji, also had direct knowledge of this joint venture with the ineligible bidder and along with Tasaka, is referred to many times by the judge in her reasons for judgement. It becomes clear to anyone reading those reasons, that among ministry officials involved along the entire process, that the issue of the clearly proposed joint venture with a ineligible bidder was a subject of much consternation. Although Tom Tasaka and his assistant Nasir Kurji were well apprised of what was going on, they still did not hold the sole capacity to make the decisions of how to handle this by themselves.
This leads us to the chair of the PEP ( project performance panel) and the IRP ( independent review panel)
The paragraph on page 9, section 52 of the highlighted document above clearly shows that the entire pep was aware of the joint nature of the bid between Brentwood and the ineligible bidder, Emil Anderson. It is without doubt, that the chair of the PEP was implicitly involved in the determination of how to disguise the issue and presence of this ineligible bidder in the above PDF document, as was the chair of the IRP and the IRP itself.
( At this point I highly suggest interested partied to read the original trial judges reasons for judgement, from sections 55 through to the end, with emphasis on section 69 . The duplicity and determination with which ministry officials set out to ensure all documents did not reflect the joint venture with an uneligible bidder is staggering. )
So, we have the project director involved in hiding the true nature of the bid components – Tom Tasaka.
Tom is now with SNC- Lavelin and has had a hand in many major projects in British Columbia, as well as consulting regularly for the MOT. He was the project director on the William R. Bennett Bridge in Kelowna , which has come into the news again recently because the MOT still hasn’t produced a report into why one of the expansion joints wore out and needed to be replaced only 14 months after opening. http://www.kelowna.com/2010/01/06/still-no-word-on-cause-of-faulty-bennett-bridge-joint/
We have his assistant, Nasir Kurji.
Nasir Kurji also moved onto SNC- Lavalin for a time, and his name has popped up in relation in many MOT related companies such as Miller Capilano Maintenance, the company running the checkpoints on the Sea to Sky.
We have the Chairman of the Project Evaluation Panel – Dirk Nyland – ( page 10 article) .
Dirk Nyland is the Chief Engineer for the province of B.C, and interestingly enough, penned a little article about the success of the Kincolith project here, on page 4 of this newsletter http://www.th.gov.bc.ca/Publications/roadrunners/rr03-fall-02.pdf Notice nowhere does he mention the extraordinary efforts of the ministry staff involved in ensuring the preferred bidder got the contract in the first place. ( did Tom Tasaka and Nasir Kurji get cash awards for a job well done? Perhaps not, considering where the case has ended up)
And don’t forget, the transcripts clearly indicate that the entire PEP was aware of the deception, as was the chair of the IRP, if not the entire panel.
Herein lies the problem in determining where the buck stops on this kind of unethical manner of conducting government sanctioned business.
This was not a cut and dried case where one person clearly committed some form of deception and was fired as a result, once the offensive behavior was revealed.
This was an entire team of ministry officials charged with the responsibility of ethically, honestly and transparently handling public procurement. On behalf of the government of British Columbia, and by that respect, the people of British Columbia no less!
Is it possible to place the onus on just one person, for which the responsibility for all of this rests?
Surely, the ultimate responsibility would rest upon the shoulders of the Minister in charge at that time, none other than Judith Reid, whose name comes to us recently again with regards to the Basi-Virk trial. Of course, another in the list from the top down, is Dan Doyle , who was appointed Deputy Minister right around this time , following an already long career in ministry. Dan is most recently newsworthy for being the executive vice president of VANOC, and was appointed as chair of BC Hydro last year.
But time marched on, as did this case, through another Minister- Kevin Falcon. Surely he must have been aware of this case proceeding to Supreme Court? And now Shirley Bond. All of these other players have fared extremely well in the years since the Kincolith Extension Project was first conceived and put out to bid, which would indicate to me a fair acceptance of this kind of behavior by the government.
(It is also worth noting that the ineligible bidder that was the source of all the MOT’s egregious behavior in the Kincolith Extension project has gone onto win a wide variety of lucrative bids with the MOT and most recently VANOC. In fact, they built the 201o most talked about venue in the media recently, the Whistler Sliding Centre. )
I spoke with Ministry spokesperson Dave Crebo by phone this afternoon, advised him former Tercon Chairman Glenn Walsh had given me a statement and asked for a response to the Supreme Courts ruling. He had this to say:
” Generally speaking, we are still looking at this. The decision just came down on Friday and this was something that happened nearly 10 years ago, but I can tell you that the Ministry rarely used that exclusion clause. But we are still looking at it, and we need to look at it more before we can comment further. ”
I also contacted the NDP’s transportation critic rep for a comment, but nothing was received by the time I posted this.
I will be watching closely to see how the government plans to address this issue – both the Liberals and the official opposition – because of the continuing complaints of many contractors who say tendering ” irregularities” like this case have been happening for years, in all areas of procurement.
What is needed is a full and independent inquiry into the actions of the ministry then, and now, to reveal the truth of what is going on in that portfolio. If the government intends to stand by its claim of administering an honest and open government with integrity, let it start with the Basi- Virk trial upon our doorstep, and end with the Tercon Judgement. The integrity of the entire bidding process, the future of local industry in our province, and what little faith we may have remaining in our elected officials, depends on it.