From: "John Sewell"
Patsy Morris: Attached is the June 10 brief of Save Union Station Committee for the special meeting of the Administration Committee on June 17. Please list me as a deputant for the group. Also attached is our Bulletin of May 27 which should be attached to our brief. Thanks, John Sewell.
416 977 5097. SAVE UNION STATION c/o 50 Baldwin Street, Toronto, ON M5T 1L4 www.saveunionstation.ca
June 10, 2003.
To: Administration Committee City of Toronto Attention: Patsy Morris, Secretary
Please list our group as a deputant at the special meeting of the Administration Committee on Tuesday June 17, 2003, 1 pm in Committee Room 2.
Our group has very strong reservations concerning the process that has been used to reach the current situation with respect to Union Station. The flaws in the process are well identified in the report of Mr. Osborne, and these are outlined in our Bulletin dated May 27, which is attached. We believe there are strong and compelling reasons to abandon the current bid process and start again.
But whatever disagreements there might be about the interpretation of the Osborne report, we must not lose sight of the fundamentals at issue - what happens to Union Station in the short, medium, and long term. The Station must be seen as the key transportation hub in the downtown. Addressing this issue is most critical. We ask committee and council to endorse the following principles to shape the process and the way in which the Station is improved:
A. A Strong Role for the Public
1. All materials relating to the bids, in the past and in the future, must be made public before decisions are taken, and the decision-making process must be conducted in public, with public input.
2. All heritage decisions respecting Union Station, including those in the purview of the Federal Government and its agencies, must be made in public, with public notice and input.
B. Strengthening the Downtown’s Key Transportation Hub
3. Council must be provided with a professional report outlining the number of Station users resulting from the expected increases in regional and intercity rail travel over the next three decades, and confirming that the design agreed to provides the flexibility needed to reconfigure the tracks and the platforms to meet this demand. 4. Since Union Station is the hub of different modes of transportation, council must establish some means of informed co-ordination – perhaps an advisory board of expert citizens, perhaps a strong designated city staff person expert in transportation issues – capable of requiring agencies to work together for the public good. 5. Train platforms must be brought into compliance with reasonable standards of safety no later than 2013.
6. Escalator access from the concourses to the platforms serving most passengers, must be installed no later than 2013.
7. To enhance the experience of train travel in and out of Toronto, improvements to the roof over the tracks must be undertaken to make it attractive and structurally safe, or it must be replaced in whole or in part, by 2013.
C. Making Sound Business Contracts
8. Any lease term for Union Station should be commensurate with normal commercial practise for return on capital, that is, for a term no more than a maximum of 20 years including any right of renewal.
9. Any lease must provide the city a reasonable return on its asset, Union Station.
Without these kinds of principles underlying the process and any contract, we believe the public interest will be poorly served. Whatever decisions are made about the process so far, we urge council to adopt these principles regarding the disposition of Union Station.
Yours sincerely,
Save Union Station Committee
Noel Copping, 416 598 0055 x 308 Laura Cooper, 416 214 1680 Andrew Jeanes, 416 652 8076 Cathy Nasmith, 416 598 4144 Wayne Olson, 416 693 9717 Alison Reid, 416 703 0285 John Sewell, 416 977 5097 Linda Sheppard, 416 691 8894 Bobbi Speck, 416 920 1958 Noelle Zitzer, 416 957 1576
Attached: May 27 Bulletin. SAVE UNION STATION, Bulletin No. 14, May 27, 2003 Our website is http://www.saveunionstation.ca
THE OSBORNE REPORT
It is surprising that Judge Osborne’s report is being interpreted as giving the green light to the Union Pearson Group for Union Station. The report itself says anything but that the Union Pearson bid was the best bid. Osborne could find no criminal activity, but he sure found lots of problems with the process. And that raises the big question: has this process been good enough to justify leasing away the Station for 100 years to a company that was not the preferred choice from many points of view, with a proposal that, because mostly of poor terms of reference by the city, does not address the key transportation issues?
Mr. Justice Coulter Osborne was asked by City Council on February 6 to report on the process used to award a 100 year lease for Union Station. His report was released May 22, and it contains disturbing new information, and much criticism of the city’s process. It is anything but a vindication of the way this bidding process has been handled. For instance:
* Osborne terms Paula Dill’s voting on the LP Heritage proposal “patently unreasonable.” He says her action, while not corrupt, “does not, of course, exclude the possibility that Ms. Dill on her own sought to secure a particular result.” * The Selection Committee’s first vote – this vote has been kept secret until now - favoured the LP Heritage + bid. If Paula Dill’s vote were excluded (since it is patently unreasonable), the second vote would also favour LP Heritage +. Those are the only two votes held. (See Section 4, below.) So why would city council award the contract to the second place Union Pearson? * Osborne did not look at the transportation issues at the heart of the future of Union Station, the very issues excluded from the bid – wider platforms, realigned tracks, escalator connections between the concourses and the platforms, new roof over the tracks – saying they were outside of his terms of reference. * Osborne expresses concern about the secrecy of the process, stating his preference that the public should have been informed early in the process.
Osborne concluded that the evaluation process “was, on balance, fair to both proponents”, without saying whether it was in the public interest, or fair to the public. Some councillors like Doug Holyday have seized on this conclusion to suggest it is “full speed ahead” to award the contract to Union Pearson.
This Bulletin provides a review of the Osborne Report. The fear is that without addressing the important transportation issues, without making all the information about the existing bids public, Council will use this report to sign the 100 year contract with Union Pearson, the losing bidder. This Bulletin also suggests a course of action to ensure the public interest prevails.
The full report (it is 97 pages long) can be found on the city’s web site, http://www.toronto.ca/union_station/index.htm
2. Osborne’s terms of reference from City Council
On February 6 city council requested Mr. Justice Coulter Osborne to review the following: * the full process for developing the Request for Proposal (RFP) terms, * the evaluation of the RFP submissions and the Selection Committee’s process for the selection of the preferred proponent * issues about the disclosure of information * possible conflicts of interest
Each will be analyzed in turn.
3. Developing the Request for Proposal terms.
For reasons not explained, the judge decided that looking closely at terms of reference for the RFP were not part of his study. He states (page 14) “The Request for Expressions of Interest (the first stage of the RFP) is not part of my terms of reference.” He makes a sketchy description of the RFP process (pages 15 – 24), not mentioning that it was drafted by the mayor’s executive assistant while assigned to the Chief Administrator’s Office, and not dealing with the question of how narrow it was. He states (page 22) that “the Save Union Station Committee .. expressed the view that broader planning issues, including the connection between Union Station and the waterfront and transportation issues involving GO, VIA, and the TTC should have been addressed by the RFP.”
Indeed, our group has made no secret that we think any long term arrangement for Union Station must include long term planning issues. That includes: widening the train platforms to make them safe; re- aligning the tracks to accomplish this widening; installing escalators from the concourses to the platforms so that commuters are not required to walk up three flights of stairs; and installing a new roof over the tracks to replace the current dirty and unsightly roof. If these changes are not agreed to before a long term lease is entered into, they will probably never be made, or will only be made at significant extra public cost. Our group has said it made no sense for the RFP to specifically exclude any of these issues, and it is completely wrong that one bidder, LP Heritage +, was, according to Patty Simpson, the city’s co-ordinator of the bid process, penalized for suggesting these improvements.
But the judge decided not to look at the limitations of the RFP. He says (page 22), “The scope of the Request for Proposals (RFP) does not fall within the ambit of this Review which focuses on the fairness of the RFP.”
He interpreted his role as focussing only on fairness of the RFP to the bidders, and so states several times. On page 95, for instance, he states, “this Review mainly concerns the fairness of the RFP.”
Whether the judge properly interpreted the council request hardly matters at this time. What’s important is that the bidding process has excluded the key transportation issues so that a 100 year lease for Union Station will be signed without any arrangement to improve the platforms, install escalators, realign the tracks and put on a new roof. This makes no sense. The public interest will not be protected until these issues are fairly addressed.
4. Evaluation of the bids and the actions of the Selection Committee
Judge Osborne is critical of almost every phase of the evaluation process, and the body of his report is at odds with his general conclusion which reads: “Although the evaluation process was not perfect, it was, on balance, fair to the proponents.” His criticisms include: * He did not agree with the committee’s decision on the scoring of submissions about `additional density’, that is, building new structures. He says (page 31) “if I had been determining this issue I would not have included additional density in the evaluation process.” He says “in future, RFPs should generally set out with reasonable precision what will and will not be evaluated.”
* He did not agree with the scoring, which involved awarding a score of between 0 and 5 on a set of criteria and then multiplying each score. He says (page 33) “I think it would have been better had zero not been an available score” since zero multiplied by any number is still zero, making a mockery of the multiplier.
* He disagrees with the way the committee did its business, and that committee members should have discussed their scoring with each other rather than doing it privately. He says (page 34) “My preference… would be to include the proposed marks of individual members of the committee as part of the committee’s deliberations.”
* In terms of the actual evaluation, the judge reveals information that until now has been kept secret (pages 40 – 44.) The committee first voted on the proposals on May 8, 2002. LP Heritage + won the bid over Union Pearson by a score of 2952 to 2753 (page 43.)
A few days later new financial information about a partner of LP Heritage + came forward, and the committee reconsidered its decisions. It took a second vote on June 17 (page 48ff). That’s when Paula Dill, Commissioner of Urban Development Services, awarded LP Heritage + three zeros on her score card for financial criteria.
Osborne says Dill’s decision was (page 55) “something of an overreaction – a misguided response” and “patently unreasonable.” The judge then goes into a complicated discussion about how to assess scores when a member of the committee has acted in this manner. For reasons that are not clear, he does not consider the most straightforward way of proceeding – exclude Dill’s scores altogether. She has acted, as he concludes, patently unreasonably: why pay attention to any of her votes?
If Dill’s scores had been excluded for both bidders on this second vote, LP Heritage + would again have won over Union Pearson, 2366 to 2215. (Do the math yourself from the chart on page 57.)
The results of these two votes by the Selection Committee raises the most difficult question of all: what is fair about a process that had two votes, the first undisputedly favouring LP Heritage +, and the second which can reasonably be interpreted as favouring LP Heritage +, yet awards the contract to Union Pearson which can be said to win one vote only after a complicated and controversial computation? What’s fair about that?
Unexplained is that on that second vote, another member of the Selection Committee, Joseph Pennachetti (the city treasurer), changed his votes in four categories, marginally favouring Union Pearson, even though the reconsideration was supposed to be around the financial condition of the LP Heritage + bid. The judge does not explain this (page 51), just calls it `complicated.’
There’s a further point to be made about this second vote. The financial questions of LP Heritage + that provoked the second vote have since been cleared up to everyone’s satisfaction. Should there now be a third vote since the situation has changed? Should the second vote be now set aside? These questions indicate how slippery this process has been, and why it makes no sense to rely only on the dubious results of the second ballot where one person’s actions were “patently unreasonable.”
* Osborne says (page 66) next time council should appoint a Fairness Commissioner to oversee evaluation processes on an RFP.
5. The public disclosure of information
Osborne says (page 94), “it would have been better had more information been made available to the general public before the determination of the preferred proponent… I see no valid reason why disclosure of competing design concepts should not only be permitted, but also encouraged.”
At this time, the public has still not been permitted to see both bids. Not even city councillors have seen them. The only group which has seen and studied both bids are the six members of the Selection Committee. Yet he says (page 84) that council had been “appraised of all relevant information.”
The shredding of documents by Patty Simpson, he says (page 62), was “a significant error in judgment.”
6. Conflicts of Interest
Mr Osborne states (page 90) “I see no merit in the allegations of conflict (of interest) as related to either the Mayor (Mel Lastman) or (his son) Dale Lastman.” Yet he makes no reference to the Municipal Conflicts of Interest Act, which seems to clinch the issue and explains why Mel Lastman declared a conflict, albeit six weeks after his son announced he was formally involved with one of the Union Pearson partners. No reference is made in the report to the role of Al Leach, who has an annual $100,000 retainer with SNC Lavalin, one of the Union Pearson partners, while being a board member of GO Transit, a key Union Station user. Marshall Macklin Monoghan is cleared of Conflict of Interest allegations.
7. Conclusion
The Osborne report demonstrates what a mess the process to lease Union Station to the Union Pearson Group has become. The report is certainly not a vindication for council or city staff. This is not a report which justifies leasing Union Station to a private company for 100 years.
What it might do is muddle the issues. The larger issues have still not been dealt with – platforms, tracks, escalators, roof. The smaller issues have been caught up in this badly confused process that the judge criticizes, a process that, in all fairness, favoured the LP Heritage + bid, not the Union Pearson bid.
But these larger issues require that the bid be given to neither firm, and that a proper new process be undertaken without delay.
This matter will next come before a special meeting of the city’s Administration Committee, chaired by none other than Doug Holyday. One fears that the Committee will dismiss the larger issues (as it has done in the past,) refuse to understand and act on the strong criticisms of the report, and push the agreement with Union Pearson through to completion no later than the July council meeting. Yet the current proposal of Union Pearson does not address the larger issues. It’s financial offer is simply not good enough.
We must help councillors to realize they must do better on the public’s behalf. The best course of action is to stop this process that has been in limbo for four months. The current RFP does not obligate council to award a contract to any of the bidders. Perhaps council has a moral obligation to pay for some of the hundreds of thousands of dollars each bidder spent on this messy process (and maybe it should do that) – but it has no legal obligation to do so.
Now is the time to start over and do it right. Maybe this city council can’t do it right – but a new council with a new mayor will be elected in November. We must push to ensure no decision is made in favour of the current bids, but that the process is terminated and a new start undertaken. *** Please consider sending this Bulletin to a friend. If you have not received this Bulletin directly from the site and wish to subscribe, send a short note to [email protected] . Our address is [email protected] , our web site is www.saveunionstation.ca . - end -