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RMOW responds to composting lawsuit

Municipality claims no contract was initiated with Sea to Sky Soils

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The municipality has outlined its side of the story in the legal fight with a local composting company.

Court documents, filed in the Supreme Court of British Columbia on Jan. 12, detail the municipality's facts in response to a legal challenge from Sea to Sky Soils and Composting Inc. and Net Zero Waste Inc.

The claim is over the handling of a $5 million contract for the operation and maintenance of the municipal compost facility — a five-year contract the soils companies claim they were initially awarded only to be informed hours later that it was rescinded.

The lawsuit, filed by the composting companies, alleges "a hidden, underlying advantage" in favour of longstanding Whistler garbage contractor Carney's Waste Systems, which was ultimately awarded the contract.

This week the proponent, Mateo Ocejo, reiterated that the lawsuit was a last resort.

"We attempted to resolve the issue at the staff level and it's unfortunate there was insufficient time to get an investigation done by the municipality," he said. "Facing a six month statute of limitations period, we were forced to enter into litigation with the RMOW to have our case heard. We look forward to the municipality investigating this and to restoring the integrity of the bidding process so taxpayers of the RMOW will see competition and fair pricing in the years ahead."

Two teams submitted bids for Whistler's contract on April 22, 2014. Longstanding garbage contractor and current composting contractor Carney's was one, while Sea to Sky Soils/Net Zero joined forces with Walker Environmental Group for a joint submission.

The municipal response to the lawsuit states: "The RFP was not a competitive tender and RMOW did not intend to initiate contractual relations by receiving the RFP Responses." It added it conducted "a thorough review and evaluation" of the two RFP responses.

On April 29, seven days after the submissions, the municipality contacted the Walker proponents "to inform them that the Walker Response was considered the best overall proposal and that the next step was to negotiate a contract for the Work."

Later that same day, the municipality realized parts of the Walker Response were "unclear with respect to price" and staff sought clarification. That clarification upped the price of the bid, and though it remained lower than Carney's, it was not low enough to counter Carney's points on experience.

"Later on April 29, 2014, RMOW informed Walker, Sea to Sky, and Net Zero that it considered the Carney's Response to be the best overall proposal and that it would be negotiating a contract with Carney's to perform the Work."

The Carney's contract was executed on June 4 at the same time as its $6 million garbage contract.

In the legal basis for its defence, the RMOW states: "The RFP was a request for proposals and not a contractual tender call.

"The parties did not intend to initiate contractual relations by the submissions of a proposal and no (contract) was formed as a result of the submission of the Walker Response.

"There is no freestanding duty of fairness in the bidding process independent of the implied contractual duty in (the contract)."

Sea to Sky Soils has a different take on the matter as outlined in its lawsuit:

"It is a matter of public policy that the tender process, especially those involving taxpayer-funded municipalities, necessarily implies a term that all bidders are to be treated fairly and equally, so as to encourage potential bidders and increase competition for public contracts."

Sea to Sky Soils and Net Zero Waste are looking for damages, including damages for breach of contract, for loss of profits and loss of opportunity.

The municipality states in its response to the civil claim that the companies have failed to look for or get more work in the months following Whistler's decision to go with Carney's.

"In the event there was a breach of contract by RMOW, which is specifically denied, the plaintiffs have failed to mitigate their damages by failing to seek or obtain work on other projects as quickly and efficiently as reasonably possible."

The claims have not been proven in court.

The municipality would not comment as the matter is before the court.

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