CFBB is pleased to have the opportunity to comment upon the long awaited and recently released Rust-D’Eye Report. Given the fact that CFBB was formed initially three plus years ago due to what we considered a flawed RFP and contract award for the City Hall expansion, we have been following this project with more than a keen eye. We have made numerous submissions to Council and the media on various concerns throughout the process, and continue to do so today. We have submitted a more detailed summary to all Council members for your review.
1) We add our voice to the chorus of upraised shouts in the community and beyond saying that this report lacks credibility. It is largely based on a series of interviews and discussions with staff (some already departed) and consultants, all of whom were deeply involved in the development of the ‘Competitive Dialogue’ process and contract award through to the actual construction and partial occupancy of the City Hall expansion. With a lawsuit hanging over their collective heads, why would anyone admit to a flawed, little understood process, or that the process could have been implemented better, or that staff acted improperly, or without authority? Shouldn’t Council have been able to anticipate the outcome without spending an inordinate amount of taxpayer money, to this point according to the media having reached $268,000?
No attempt seems to have been made to interview outside groups like ourselves that might have had a different view or perspective based on Proposal Call and development experience. That seems an obvious shortcoming. A listing of those interviewed should have been included as an Addendum.
Mr. Rust-D’Eye appears to have had an altogether similar experience in the neighbouring community of Oshawa, where his report there enraged the public and garnered charges of “whitewash”. Perhaps if Councils could set different parameters for these ‘investigative’ reports and how they should be mandated and prepared, credibility of the ‘fact finding’ could be improved. Best practice would have been to hire a well-known specialist in municipal procurement rather than a lawyer whose firm had past connections with the City. It would have allayed any sense of conflict of interest.
2) It seems very hard to understand why the City needed to go to the expense of hiring a highly paid consultant to recommend and help implement the ‘Competitive Dialogue’ RFP process, a European import procurement concept which was totally unfamiliar in Canada. It was only instigated in the U.K. in 2006 to be used in large and complex projects. To date, so few have been completed that there is limited experience with its success or legal exposures. The interpretation of the process by staff and the Canadian consultant resulted in extreme secrecy and control of information, shutting out even the elected politicians as well as the public. In our opinion, it was simply an inappropriate, costly, and unduly complicated concept to be used in Brampton to build its relatively small, straight forward City Hall expansion project for which the public demanded transparency and accountability. Too much authority and latitude was delegated to staff who were themselves unfamiliar with the process and seemingly not schooled in development matters.
And yet, Mr. Rust D’Eye has no trouble exhorting the concept and process as being unflawed, well implemented and appropriate for Brampton. We believe he is a little out of touch with reality here in Brampton.
3) When 40 plus RFP packages were taken out by a variety of interested parties, but only three applications were received, why didn’t the alarm bells sound that there just might be something wrong with the Call. After all, the City Hall expansion project should have been seen as an attractive opportunity by the development community, particularly with a solid Brampton city tenancy in an economically difficult climate at the time.
We can speculate on why the response was so completely poor – process too secretive, terms too unfair and one-sided, Brampton past reputation for Calls, a feeling that the outcome was known in advance. Whatever, only three replied; surely a minimum number to indicate a successful competition, and one of those was disqualified. Imagine! Only two potential players remained. Had it not been for Brampton tenant requirements, this RFP should have been cancelled.
Clearly, this RFP Call is seen here and elsewhere as an abject failure. The Brampton public never had the opportunity to see refreshing creativity with the efforts of an enthused development community.
So Mr. Rust D’Eye’s enthusiastic description of the process and outcome carries little weight, and in fact, suggests a not very informed view.
4) The report includes the report of Fay Booker, a financial consultant, retained to analyse the entire financial arrangement and whether it represented “value for money”. Her findings in our view are the real Achilles heel for Mr. Rust-D’Eye’s positive conclusions, for she makes it clear that Brampton overpaid by approximately $36 M going the route that they did with the selected contractor, Dominus. That parallels conclusions that CFBB reached a few years ago. Once we were able to find out the areas of the component parts of the project (not from the City but from Freedom of Information Ontario!), we used industry standard and published construction cost information and ascertained that the Dominus project development cost was in excess of 20% higher than it should have been. That, of course, translates into higher annual rental payments.
For Mr. Rust-D’Eye to reach the conclusion that, faced with the Booker analysis, the deal with Dominus represented good “value for money” is quite beyond comprehension. No matter what the report says, the Brampton taxpayer has been “shafted” because of previous Council decisions on this project. They, perhaps, unwittingly allowed it to happen on their watch. What a legacy to leave for the citizens of Brampton who will be paying for this lapse in good judgement for the next 25 years.
5) The so called ‘Option Agreement” regarding a small piece of land needed for Phase Two (Library Phase) appears to be one of the great “sleight of hand” moves. Apparently, through a little known capital acquisition fund mentioned in Addendum One of the RFP, staff have the right and authority to make land acquisitions without specific Council approval. Staff used that fund to pay a fee for a three year, irrevocable land option for $480,000 to secure the land for Dominus, unbeknownst to Council. The question we would have: Is use of this fund legitimate to purchase an option only, money which would be lost unless Phase two proceeded and which would require a further outlay of $2M to actually purchase the land in three years’ time, all without verification by Council?
The Rust-D’Eye report seems to sanction and not be troubled by this move. We are not so sure. Why should Council not have been informed, just to be open and accountable? But that seems to be the way with this whole project.
6) The former CAO has stated that staff had the authority to transfer the Dominus lease agreement (and, presumably, the original agreement with Dominus) to the new landlord Fengate without ever advising Council. That seems to us to be a real stretch, given that the deal with Dominus described them as “the long term partner with the City”. Did staff assume authority to, in effect, free wheel with formal agreements using their own best judgement? Did Council even know about their new “long term partner” before the deal was papered? And shouldn’t it have? Mr. Rust-D’Eye seems not to have been bothered by this extraordinary assumption of power by staff.
By the same token, staff along with the Mayor, agreed to cap the penalty for Dominus for missing delivery dates. Shouldn’t that have been a Council decision?
Had substantial completion been achieved last summer and so certified by the architect when Dominus decided to depart the project and sell their interest to Fengate? Was the building ready for tenant occupancy with appropriate occupancy permits issued to allow tenants to occupy the space without liability and for rental payments to commence?
So many questions arise when the Council and the public are not made privy to basic information to which they should be entitled or be made aware. Secrecy begets secrecy, and trust is easily eroded.
For us, the conclusions of the interim Auditor General’s report on a whole host of accounts does not stand muster. It lacks credibility, particularly so because it ignores the Booker findings that show the Dominus deal to have been far more expensive than a more traditional and transparent arrangement to build the needed facilities. Additionally, to have found and supported interviewee accounts of implementation perfection defies reality.
A process to improve our SWQ really began in 2005, that’s 10 years ago! It regained momentum in the summer of 2009 and almost 6 years later we still don’t have a project that is complete, a project that actually re-developed the SWQ of the Downtown, a project that ignored any architectural integrity and design, didn’t involve the public or elected officials, was too expensive, has made re-development of the actual SWQ more complicated, was secretive and filled with controversy. We have only one comment…..…WHY?
Many of you ran for elected office on the promise to “clean up” City Hall, make it more open and transparent, more accountable and to restore business community and taxpayer confidence. Quite frankly, if it wasn’t for the efforts of a few Council members, a few concerned residents and business owners, and one reporter, the sweeping change of voter sentiment that helped you get elected might have never happened.
We believe everyone here is familiar with the saying, “you learn from your own mistakes”. So please tell me how can the city of Brampton move forward and become a leader, a model for accountability and transparency if we don’t even admit that any mistakes were made?
Doug Bryden and Chris Bejnar, and John Buch
Co-Chairs – CFBB