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The legal documents exposed lines of attack by an aggrieved bidder, potentially leading to court applications for a procurement injunction or for monetary damages.

There were three potential problems with the city’s booting the SNC-Lavalin bid, according to the legal analysis.

For one, there were pitfalls in how the technical scoring was carried out and how it matched up to the evaluation framework.

Second, the fact that SNC-Lavalin was initially deemed in conformance with the technical requirements, but then failed the technical evaluation, could call into question the fairness of the contract competition.

Finally, the law firm warned that there could be “subjective commentary” by evaluators that doesn’t speak to the requirements listed in the request for proposals.

Norton Rose Fulbright used the example of commentary suggesting the proposal is “poorly written.” In fact, in previously released evaluation documents, it was revealed that the technical evaluation team wrote that the SNC-Lavalin proposal narrative was “generic, not project-specific, and poorly written.”

Perhaps the most perplexing part of the legal analysis is that Norton Rose Fulbright was competitively hired by the city for its top-notch procurement expertise to help write the contract competition, yet the firm found potential snags in the Trillium Line procurement evaluation process.

The legal advice doesn’t say the city should take a specific course of action, but it does underscore the risks of dumping a bidder that failed the technical evaluation. The procurement rules gave the city discretion to keep a bidder alive in the contract competition, despite receiving a low technical score.