Chicken tenders?

Can you believe what Rossland City Council has done now? After months of promises that there would be a full, open discussion about the options for the Columbia Avenue infrastructure project after tenders provided hard numbers to consider, Council decided to turn the decision making over to CAO Victor Kumar.

Council has ignored, delayed, deferred, postponed and cancelled opportunities to decide what the Columbia Avenue project would include since last summer.  All the citizens of Rossland have heard from Council is rhetoric about how Council had to know what the hard numbers were before they could decide what they’d include and what they’d delete.  And now that the numbers are finally in, instead of the public discussion about what to include in the project, Council holds an in camera meeting to get their marching orders from Mr. Kumar.

I can only guess what went on in the in-camera meeting.  I can imagine CAO Kumar saying something like “OK folks, listen up.  Tenders have come in way over the estimates the consultants ISL came up with.  I’m the only one who can sort out the mess.  So we’re going to go back into a regular meeting and you’re going to give me the authority, without any discussion, to negotiate with the bidders to get a better deal.” 

In his memo to Council, Mr. Kumar said giving him the authority “ . . . allows for the discussion and negotiations as might be required to occur with the successful bidder without the potential to incur litigation from other bidders on the project including the successful bidder.”

Who is the successful bidder? Did Council decide in the in-camera meeting who the successful bidder is? Or is Mr. Kumar going to decide?  What is the basis for deciding who the successful bidder is? Who is Mr. Kumar going to negotiate with--all the bidders?

Mr. Kumar, in his memo, says giving him the authority, “...is to comply with the court rulings on the award of tenders and subsequent negotiations without compromising the integrity of the tender process. But what is there to negotiate?

Competition rather than negotiation is the basis of the tendering process.  Procedural fairness and good faith are essential to the integrity of the competitive process.  The tendering process is governed by the law of contract, subject to an obligation on the part of owners (the City) to accept only compliant bids and to treat all bidders fairly.   The only post-tender negotiation that should take place prior to contract award is about bid clarification.  If any such bid clarification results in significant changes to the tender, all bidders must be notified and in some cases the tender documents may need to be revised and new tenders called.

Key principles in the law of tendering include: (1) Only a compliant tender can be accepted by an owner; (2) The lowest compliant tender should be accepted; and (3) The owner owes bidding contractors a duty of fairness in analyzing the tender bids.  These principles limit the discretion of the owner in awarding the contract and ensure the fairness and transparency of the tendering process.   These are the principles that have been established by the courts.

The tender documents spelled out what the City wanted contractors to bid on.  Contractors based their bids on providing the services required by the City.  The tender included the possibility of the City deleting a few components of the project if bids came in over budget.  All the bidders knew that.  The bids all came in over budget.  There has been no indication that any of the bids were non-compliant.

If that is the case, the contract should be awarded to the lowest bidder subject only to Council’s decision, not Mr. Kumar’s, about what optional items would be eliminated from the project.  There is nothing left to negotiate so why is Mr. Kumar taking the responsibility for awarding the contract away from Council?  And why is Council letting him take it?  What optional items will Mr. Kumar delete from the project?

He might eliminate any work on Washington Street because that was an optional item.  Many of the streetscape features could be eliminated because they were optional.  It won’t be the parallel parking or bump outs which severely reduce the available parking in the downtown core because those are not optional items even though Council members have been assuring citizens that they were.  It won’t be the wider sidewalks that are eliminated even though there might not be anything to put on the sidewalks.  However, not having street furniture on the sidewalks might be a blessing in disguise because then there will be lots of extra room for skateboarders and dogs.

The Columbia Avenue project has been a series of screw-ups right from the beginning.  There is no indication that this will change any time soon.

Laurie Charlton is a retired chemist who was a Rossland city councillor for 17 years between 1975 and 2011.