Summary investigation report by the independent committee on the events relating to the award and execution of contract 60103 – Design-build project to replace the deck on the Jacques Cartier Bridge (2000–2002)

Table of Contents

Letter to the Deputy Minister of Transport, Infrastructure and Communities

artistic sketch of a bridge

Les Ponts Jacques Cartier et Champlain Incorporée
The Jacques Cartier and Champlain Bridges Incorporated Canada

Deputy Minister of Transport
Ref. XM-2014-420585

Louis Lévesque
Deputy Minister of Transport, Infrastructure and Communities
TRANSPORT CANADA AND INFRASTRUCTURE CANADA
Place de Ville, Tower C
330 Sparks Street, 29th Floor
Ottawa, Ontario  K1A 0N5

Dear Deputy Minister:

This letter acknowledges receipt of your letter dated March 14, 2014, concerning allegations reported by the program Enquête, and submission of the results of the investigation into this matter by an independent review committee that I set up on March 4, 2014.

I would first like to reiterate that I am well aware of how important your department considers this investigation. Therefore, enclosed is the investigation report prepared by the independent committee, which consisted of Jean Tremblay, Denis Hamel (CPA, CA), and the Chair, the Honourable Daniel H. Tingley, a recently retired judge of the Superior Court of Quebec.

Sincerely,

[original signed by]

Paul Kefalas
Acting Chair of the Board of Directors

Summary investigation report by the independent committee on the events relating to the award and execution of contract 60103 — Design-build project to replace the deck on the Jacques Cartier Bridge (2000–2002)

March 19, 2014

Strictly Confidential

Paul Kefalas
Chair of the Board of Directors
Jacques Cartier and Champlain Bridges Incorporated
1111 St. Charles Street West
West Tower, Suite 600
Longueuil, QC  J4K 5G4

SUBJECT: Summary investigation report by the independent committee on the events relating to the award and execution of contract 60103 – Design-build project to replace the deck on the Jacques Cartier Bridge (2000–2002)

Dear Mr. Kefalas:

Further to our appointment on March 4, 2014, to the Independent Committee set up to investigate the matter mentioned in the subject line, we are pleased to present our summary report below.

MANDATE

  • 1) In a letter dated February 19, 2014, Louis Lévesque, the Deputy Minister of Transport, Infrastructure and Communities, stated that "[TRANSLATION] during the Radio-Canada program Enquête on February 13, 2014, serious and troubling allegations were made about ████, former chair of the board of directors and chief executive officer of the Federal Bridge Corporation Limited and former chair of the board of directors of Jacques Cartier and Champlain Bridges Incorporated" (JCCBI). The Deputy Minister asked you to (1) "[TRANSLATION] investigate (these) allegations (…)," (2) "provide (him) with the results of your investigation as soon as possible," and (3) "submit a report (to him) on all the policies and control measures in place or that you plan to put in place to prevent any acts of this type."
  • 2) On February 24, 2014, you provided an answer to the Deputy Minister regarding certain requests made in item (3) above. Regarding the rest, as you informed the Deputy Minister, you set up a committee consisting of three independent members with combined expertise in procurement, law and forensic accounting ("the Committee").
  • 3) You commissioned us with a mandate to investigate the procedures in place at the Corporation during the period from 1999 to 2002 for the award of Contract 60103, to verify that these procedures had been followed by the key players at the time and to report our findings and conclusions.

THE INVESTIGATION

  • 4) The Committee initiated its investigation on March 5, 2014, after receiving a number of documents related to Contract 60103. We continued to receive additional documents daily between March 5 and 13, 2014. During this period, we also interviewed the key players at the time who are still associated with JCCBI: ████, director of procurement; ████, a member of the board of directors; ████, assistant director of engineering (on secondment with Transport Canada); and ████, managing director and a member of the board of directors (from 2000 to 2002), as well as ████, external advisor, and ████ internal advisor responsible for procurement and corporate secretary (from 2000 to 2002).
  • 5) The Committee conducted these interviews informally, with no oaths or recordings taken.
  • 6) The interviews focused on the procedures in place for awarding Contract 60103 and how these procedures are currently followed. All of the interviewees answered our questions frankly, cooperatively and without hesitation to assist the Committee with its task.
  • 7) More than 100 boxes of documents covering the period from 1995 to 2003 were made available to us. Of these documents, we identified and processed more than 300 as being relevant to our work. These included the Contract itself, the minutes of the meetings of the board of directors and its sub-committees (steering, monitoring, evaluation), the correspondence relating to the deliberations of the evaluation committee and the contractor's two claims, including the signed memoranda of understanding.

RESERVATIONS

  • 8) We reserve the right, but not the obligation, to review our findings in the light of any facts that may be submitted to us at a later date.
  • 9) We understand that this report can be communicated only to the Deputy Minister, unless its disclosure is required by law.
  • 10) Our report must be taken as a whole. Specific parts of the analysis or the report, or factors that we have not taken into account, when viewed in isolation, may mislead the reader. Any questions about this report can be sent to the Honourable Daniel H. Tingley (████).
  • 11) We assumed that the information, documents and explanations provided to us were complete and accurate. We had no obligation and made no agreement to investigate the truth of all of the information received, and we did not conduct all of the investigation and verification procedures for all of the documents and information submitted in order to independently confirm the accuracy of this information.

FINDINGS

  • 12) In the light of the information and documents that we reviewed, as well as the explanations provided during the interviews (which we held with key managers at JCCBI who were there when the contract was awarded and executed), and given the reservations, the limits and the scope of the work indicated in this report, our findings are as follows:
    • Given that the deck of the Jacques Cartier Bridge needed to be replaced, JCCBI faced a new challenge. Not only was the recommended construction method relatively new, but the scale of the work and especially its costs would reach an unexpected level.
    • One thing was clear: JCCBI By-law #1 and certain directives needed to be amended. Following a review, the executive proposed some options to the board of directors, which, after modifications, accepted the proposals. The rules thus adopted were to help with the execution of work using the design-build method, while meeting the planned deadline of two years and the established budgets.
    • Although extras in the amount of $12,000,000 were paid to the contractor, this amount appeared justified and within the acceptable standards for a project with an initial value of over $109,000,000.
    • The executive (administrators and directors) took considerable efforts to implement directives and procedures adapted to managing a large-scale construction project. This included consulting experts within organizations that had previously carried out this sort of project successfully.
    • The directives and procedures were submitted to the board of directors by the executive when the project was launched.
    • Although an evaluation committee was set up, the board of directors preserved a degree of latitude with regard to the selection of the successful bidder, as indicated by the following findings:
      • The board of directors did not clearly define the weighting factor between the bidders' technical and financial proposals.
      • The board of directors appointed one of its members, ████, as an observer on the bid evaluation committee.
      • The minutes of the evaluation committee meetings were sent to the president of JCCBI, ████.
      • After reviewing the minutes of the fourth committee meeting, ████ sent a memorandum to ████, dated May 15, 2000, containing his opinion of the bid evaluation criteria. He asked ████ to review the weighting of certain evaluation criteria.
      • ████, the chair of the board and president of JCCBI, intervened at the beginning of the sixth evaluation committee meeting to inform the members of his concerns and priorities with regard to selecting the bid that had the best value for JCCBI. He told the committee members about five key elements to take into consideration when selecting a bidder.
      • By his own admission, the observer made use of his presence during the committee's deliberations to "convey messages" and openly share his opinions.
    • On September 28, 2001, the board of directors set up an ad-hoc committee to analyze the contractor's claim of $18,700,000. The committee consisted of ████ and ████, both members of the board of directors. On the ad hoc committee's recommendation and the subsequent approval by the board of directors, managing director ████ signed a memorandum of understanding in the amount of $8,350,000 on April 2, 2002.
    • The board of directors did not set up an ad-hoc committee to analyze the contractor's second claim, in the amount of $9,804,810. ████, supported by Revay and Associates (consultants) and the project manager, ████ of Genivel BPR, analyzed the claim further to a decision by the board of directors dated February 5, 2003. On the recommendation of ████, the board of directors approved the settlement of the claim in the amount of $3,000,000. ████, president, and ████, senior counsel, signed the memorandum of understanding on July 9, 2003.
    • We found that the board of directors did not follow the same procedure for both of the contractor's claims, which does not contravene policies and procedures because they are defined by the board of directors.
    • We also found that, although the bid evaluation committee members possessed technical expertise,1 the board of directors, chaired by ████, exerted influence over the committee, which seems to us to run counter to best practices in terms of the independence and rigour of the bid evaluation process.
    • Some members of the evaluation committee were in a position of authority in comparison to other members. However, nothing suggests to us that the committee members did not all have the opportunity to evaluate the criteria with diligence and rigour.

CONCLUSIONS

  • 13) In the light of the documents consulted, the interviews held and the review of the design, award and execution of Contract 60103, we conclude that the procedures and directives put in place for this project were followed and complied with in their entirety.
  • 14) On analysis, however, we can agree that these rules have certain shortcomings, including the deficiency of the weighting to be applied to the technical and financial aspects of the bids. In his interview, ████ himself stated in retrospect that, in spite of his efforts, the rules at the time were not "as firm as they could have been." However, we understand that these shortcomings have been addressed by JCCBI, and we have not been commissioned to deal with this.
  • 15) The documentation we studied was faultless and appropriately reflected the decisions made over the course of the project.
  • 16) Our analysis also revealed that the procedures and directives in place reflected the board of directors' intention to retain a measure of control over critical decisions concerning the award of Contract 60103, the authorization of amendments and the negotiation of claims.

THE INDEPENDENT COMMITTEE

[original signed by]

The Honourable Daniel H. Tingley, cr
Chair of the independent committee

[original signed by]

Maitre Jean Tremblay, lawyer

[original signed by]

Denis Hamel, CPA, CA, CA*EJC, CFF, CFE, CIRP
Associate in Forensic Accounting, MNP SENCRL, LLP

Notes

[1] The committee is chaired by ████, managing director, and consists of ████, outside expert; ████ director of engineering and construction; and ████, assistant director of engineering and construction.

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