Government Operations Committee on June 10th, 2008

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

We also had testimony from Liliane saint pierre, François Guimont, and others.

[Donald Powell]

I will tell you this. There has been no testimony under oath by anybody who was directly involved in the evaluation.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

So are you suggesting their testimony here at this committee was false?

[Donald Powell]

You'd have to tell me exactly what they said. Minister Fortier, for example, said everything was fine because somebody else told him it was fine. He didn't go and check that it was fine.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

We heard testimony directly from a number of witnesses on this matter, and they are on the record here. Obviously their testimony is there to be evaluated and supported and corroborated or you've had an opportunity to take issue with it. If at some particular point they're all wrong and you're right...and I'm not suggesting that is the case. And I'm not suggesting that, because obviously I do appreciate your coming here. You're obviously a person who stands up for what you believe is right, and you have your own convictions on that.

[The Chair, Liberal, Diane Marleau]

Thank you, Mr. Kramp. You'll get another turn if you wish.

Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Madam Chair.

I'm very pleased to follow up on my colleague, who said there was a lot of testimony on the record. I think that's where we begin to see how this case is not really passing the smell test.

This was a very controversial contract. It was commented on many times in the media whether or not there was direct interference or the possible appearance of interference. It was really the role of the minister to lay down some clear public markers, because Mr. Fortier had financial connections to CGI, and some key people were involved, as you pointed out.

We had Mr. Fortier before the committee, and I would like to read his testimony from the record. Mr. Kramp definitely says that being on the record is important.

I asked Mr. Fortier a number of simple questions. I said, “So do you use fairness monitors in your internal reviews of how contracts are awarded?” He said, “In some cases.” I said, “What is the threshold for a fairness monitor? A $400 million contract doesn't warrant one?” He said, “Not necessarily, no.”

Then I said, “...you have a $400 million contract that drew public allegations, and you don't have any kind of fairness monitor system in place. No offence, Mr. Fortier, but I think that's incredibly lax.” He said, “Absolutely not. We have fairness monitors when the situation warrants.”

I said, “So is it a personal choice? At what point do you include a fairness monitor?” He said, “It depends on the situation.”

We were taking the minister at his word, because I can't see why the minister would come to this committee and either not know his facts or misrepresent them. Yet when I looked at the guidelines for a fairness monitor, it said that fairness monitors must be considered for all procurements over $250 million. That wasn't an option, so Mr. Fortier misrepresented or did not know the facts on the fairness monitor. I think that's a key issue.

I had the opportunity on May 27 to ask Mr. Shahid Minto a question. He's our new procurement ombudsman and was the chief risk officer for Public Works. He said he had been involved in the establishment of the fairness monitor, so I asked him if the fairness monitor was optional. He said no. He said if the department decides not to use it, there had better be a very clear reason.

We didn't hear that reason from Mr. Fortier. He seems to believe he has the right and the power as minister to override the fairness monitor whenever he chooses. Where do you feel that puts you, having assumed that in a contract of this size a fairness monitor should have been in place?

[Donald Powell]

I think that's an excellent point. I believe a lot of things would have been different if there had been a fairness monitor. I think someone made that decision consciously for whatever motives they may have had.

In fact, talking about Mr. Minto, we did get a copy of the ETS evaluation that was referred to. It says in there that not having a fairness monitor was a violation of their internal policy—the policy that had only been in place for a year or something—and they chose not to do it.

The rationalization was that it was a repeat requirement. In other words, it was re-competing the same contract. But I don't understand why that shouldn't be just as fair, whether it's a new one or a repeat. It should have fairness associated with it.

So I agree absolutely with what you are saying.

[Charlie Angus, NDP, Timmins—James Bay, ON]

We have very clear guidelines for the fairness monitor, yet the minister came here and misrepresented what the fairness monitor requirements were. He said he could choose to ignore them. On a very controversial case, where the National Post said he was very cozy with your competitor, he chose to overrule it.

I would like to ask you a second question. I asked Mr. Fortier if Public Works was involved in trying to poach your staff. He said very clearly, “No, and we do not do these things.” He was basically calling you a liar. Do you have any proof that his staff were trying to poach your staff in order to fulfill this contract?

[Donald Powell]

Certainly we have lots of proof. The document that was sent by the PWGSC contracting authority internally was prepared by CGI, and it was called a potential employee form. They were pressuring us to have our people show up at CGI for interviews.

We had numerous e-mails back and forth with someone from Public Works calling our person and saying, “If you want a job, you'd better call CGI.” Our person said, “Yes, but I'm a TPG person and I want to stay with TPG.” Then CGI said, “We're not dealing with TPG. You have to come to work for us directly.” That is how it went. We have probably a dozen e-mails, and I'm sure we could get far more witnesses if we needed them. I don't know the number of people involved, but they probably hired 100 of our people, or something like that.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Again, I find it very surprising that the minister would come here and, point blank, say that his staff weren't involved in poaching your staff if you say you have written evidence and e-mails saying that your staff were being poached.

[Donald Powell]

Not only that, but we sent letter after letter after letter throughout that period to the lawyers in Public Works saying that this was unlawful and they shouldn't do it. We sent them lists of names of people who were covered by agreements with us. They just ignored those.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Another question I have, based on testimony we received from Mr. Fortier and Madame saint pierre, is on the debriefing. Now again, that's not something the minister can choose. He might think he can choose, but debriefing is actually in the procurement rules, right?

You were not given a debriefing. Did you request a debriefing?

[Donald Powell]

Here's what happened. As I understand it, it is a requirement. There may be some discussion about what actually constitutes a debriefing. At the point of contract award, we got a one-page letter from the department saying the contract had been awarded to CGI; our score was this, their score was that, and they were not having debriefings. That's what the first letter said.

So I wrote back with a bunch of detailed questions that I wanted answered and a request for documents. They didn't answer any of the questions, and they said I had to go through access to information.

Then IBM, which had also lost, sent in a request for more information, and they told me they did get some of the documents they asked for. So I wrote back yet again--this would have been in late November or early December--asking why they wouldn't give us the documents when they had given them to IBM, and saying that we wanted these documents and we wanted a face-to-face debriefing. I didn't hear back on that one at all.

Let me qualify that. They may have replied in late February, after more things were blowing up, but certainly for three months we heard nothing.

The reason given by Minister Fortier in this meeting--that is, because it was before the courts--was new to me. Nobody had told me that. Nobody came back and said we couldn't have a debriefing because we were in front of the CITT. As it evolved, the last of the CITT issues was settled probably in January, and there was still no debriefing.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Well, this is again what I want to understand, because for someone to come to our committee and provide testimony, it has to be accurate, and yet when I asked Madame saint pierre, she said they didn't debrief you because you were already involved in a trade dispute. But you're telling me you got a letter before anything happened, and that was the full extent of it.

Then she said, “Well, if he had specifically requested a debriefing...”. You had specifically requested a debriefing--

[Donald Powell]

We did. It was a few weeks later, but we did. We sent a letter saying we wanted those documents and then we wanted a sit-down debriefing so we could discuss them.

[Charlie Angus, NDP, Timmins—James Bay, ON]

The procurement rules say that “on request of a supplier whose tender was not selected for award, provide pertinent information to that supplier concerning the reasons for not selecting its tender, the relevant characteristics and advantages of the tender selected and the name of the winning supplier.” That's what happens in a briefing. Madame saint pierre said they did not give you that briefing because you were already in court, but you're telling me you weren't.

[Donald Powell]

Well, CITT complaint number four probably hadn't been ruled on at that point, but it was late December, maybe. The gentlemen mentioned December 20. It was in that timeframe. So at that point, all of the CITT issues were settled, and we didn't file the damage suit until the end of March. So there was a period of months in there when presumably there was no real legal action that this could be attributed to.

[The Chair, Liberal, Diane Marleau]

Thank you, Mr. Angus. We'll have to get back to you.

Madame Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I'm going to continue in the same vein as my colleague who talked about the tribunal. You requested a debriefing. You mentioned that, when you requested the information, you had a case before the tribunal.

Is that correct?

[Donald Powell]

No, I didn't. This issue of it being before the courts as a reason for no debriefing was brand new to me. Until I read it in the testimony here a couple of weeks ago, I had never heard of such a thing.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

At that stage, you can therefore conclude that some businesses received more information than documents provided by PWGSC than you.

[Donald Powell]

Yes, certainly IBM asked for certain things. They were the other losing bidder, and they got them. I assure you that was pretty annoying to me at the time, because they wouldn't give us anything.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mention was made of the involvement of Mr. David Marshall, who was deputy minister of Public Works and Government Services Canada between 2003 and 2007. I believe he resigned shortly after that controversy.

Can you recall for us the link between Mr. Marshall and CGI? Was it a political link?

[Donald Powell]

The only thing I know about Mr. Marshall and CGI comes from a story that broke in the Citizen, probably before this RFP came out, that he was a guest at a function at the National Arts Centre. This violated his own internal policy, so he was kind of embarrassed by it. That was a big story in the paper.

That's the only connection that I'm aware of between Mr. Marshall and CGI.