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RMOW still to respond to composting lawsuit

Extension given until Jan. 27 to file response in B.C. Supreme Court
Photo courtesy of the RMOW

The municipality is fighting a new legal challenge in court over a lawsuit, which alleges nepotism and unfair bidding practices for Whistler's $5 million composting contract.

On Oct. 29, Sea to Sky Soils and Composting Inc. and Net Zero Waste Inc. filed a Notice of Civil Claim in the Supreme Court of B.C., alleging, among other things, that the Resort Municipality of Whistler (RMOW) awarded them the $5 million contract first after "a thorough evaluation" and rescinded it in the course of the same day. The claim also asserts favouritism for long-standing municipal contractor Carney's Waste Systems, which was ultimately awarded the contract, despite being more expensive. The contract was for the operation and maintenance of the municipal compost facility.

"The inexplicable assessment of RFP criteria demonstrates a hidden, underlying advantage in favour of the incumbent 'rival tender' that rendered the process unfair," states the claim.

It continues: "RMOW's assessment and its conduct in repudiating its approval is an affront to the integrity and business efficacy of the tendering process, arbitrary and highly reprehensible, and a marked departure from the ordinary standard of decent behavior (sic) as part of the bidding process, deserving of the court's rebuke."

The plaintiffs are asking for damages for breach of contract and duty of procedural fairness, compensatory damages, damages for loss of profits and loss of opportunity, punitive damages, interest and costs and any other relief that the court deems just.

"This is the last thing we wanted to do," said Mateo Ocejo, director of Sea to Sky Soils, of the lawsuit. "We just wanted to be treated fairly."

The municipality has hired John Logan, partner with Jenkins Marzban Logan, to represent them. It asked for and was granted an extension until Jan. 27 to file its response in court to the civil claim. It is not clear why Whistler asked for an extension beyond the typical 21-day response.

"We are not able to comment further as the RMOW does not comment on the substance of legal matters," said RMOW communications manager Michele Comeau.

The composting contract was awarded in May to Evergreen Projects, also known as Carney's Waste Systems, at the same time as it was also awarded a $6.4 million five-year garbage contract.

While Carney's was the lone bidder for the garbage services, it had stiff competition for the composting services from Sea to Sky Soils.

The civil claim alleges a timeline in which it states the RMOW informed them on April 29 at 8 a.m. that their proposal had been selected as the "best overall proposal."

What followed, they allege, was a series of phone calls and questions to clarify pricing elements of the proposal for clean wood. This clarification, they allege, resulted in the "RMOW erroneously add(ing) an annual operating cost of $76,650 to the Proponents proposal, resulting in the loss of the operating contract to the Proponents."

It was the lowest bid, even with the additional costs — cheaper in its unit rate for bio and food waste, cheaper in handling costs, cheaper in transportation costs.

In total Sea to Sky Soils was roughly $50,000 cheaper (even with the recalculation), or over the course of the five-year contact more than $211,000 cheaper.

But it was awarded fewer points in the decision-making matrix under its experience and qualifications.

By the end of the business day, the multi-million-dollar decision had been reversed. Sea to Sky Soils, and company, was no longer the preferred proposal.

The RMOW ranked the operation lower in several areas including: proven performance and relevant experience, the team's experience in providing similar services, management capability, capacity, skills and qualification and its resources.

The civil claims states that Sea to Sky Soils operates 10 composting facilities including four in B.C., whereas Carney's operated just in Whistler, having closed down its Squamish operation due to odours.

The claim added: "The Proponents, owing to the effort and cost of the tender process, would not have submitted a bid had it know all tenders were not treated fairly and equally — criteria integral to the integrity of the bidding process."

Claims have not been proven in court.

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