The City of Nanaimo has struck back at a lawsuit filed by Brisbin Brook Beynon Architects by alleging that the firm tried to discourage the municipality from a public procurement process for multiplex work.
According to a response to civil claim filed in the Supreme Court of British Columbia last month, the City of Nanaimo alleges that not only did BBB Architects try to discourage the municipality from undertaking a public procurement process in 2016 for Phase 3 work on the proposed event centre, but that the firm didn’t listen and conducted design work without authorization.
Brisbin Brook Beynon Architects’ civil claim, filed earlier this year, accuses the city of failing to pay more than $154,179 for Phase 3 work between January and February 2017. That claim alleged the city failed to notify the architects about the public procurement process for Phase 3 and accused Tracy Samra, the city’s former chief administrative officer, along with Victor Mema, the city’s former chief financial officer, Coun. Bill Bestwick and other staffers of assuring BBB that it would be selected as the successful contractor for the project.
The city, according to court documents, denies the majority of BBB’s claims including the assertion that Samra, Mema, Bestwick and other staffers assured the architects that they would receive contracts throughout the project. However, the city does acknowledge that it did authorize BBB or its subcontractors to conduct “limited and specific” work after December 2016 and was willing to compensate them for the work.
According to the city’s version of events, in September 2016, the city began exploring its options for a proposed event centre and decided to divide the work into two phases as well as issue a request for fee proposals related to the event centre, which included a clause that allowed the city to proceed with all or portions of the winning proponent’s proposal. Phase 1 would focus on short-term feasibility and an overview of financial, physical and planning realities associated with the project, while Phase 2 work included “in-depth” market research, economic impacts, conceptual designs, capital costs as well as a “formalized meeting” with the Western Hockey League in order to present a business case assessment.
BBB was ultimately awarded the contract for Phase 1 and Phase 2 of the project.
In mid-December 2016, city council voted to move forward with Phase 3 of the project, which included selecting a site, entering into a memorandum of understanding with the WHL and developing a “financing framework” for planning and public engagement, according to court documents. The city alleges that after informing BBB that Phase 3 would be awarded through a public procurement process, the Toronto-based firm tried to discourage the city from that process because the project’s timeline “did not allow for a delay.”
Court documents allege that BBB then continued work related to the project, despite the city’s requests for the architects to stop. In January 2017, the city issued a request for statement of qualification for Phase 3 of the project, which was split into several stages, court documents show. BBB was awarded the first stage of the RSQ in early February 2017.
However, by late February 2017, council voted not to provide funding for further design work and rescind the work that was done under the RSQ. The city then claims it asked for all invoice and billing information from BBB.
Following the March 11 referendum, which saw residents vote against the event centre, the city cancelled the project and received a series of invoices from BBB. The city alleges BBB’s invoices included work that should not have been included, such as work that was rescinded by councillors in late February, according to court documents, which also claim that the city asked BBB to send revised invoices.
The city claims since May 2017 it has not received a single revised invoice. It also claims BBB repeatedly did work without authorization and that since being served with a notice of civil claim from BBB, it has repeatedly asked for invoices and details regarding how much it owes BBB but that the firm’s lawyers have refused, unless through “formal” litigation.
The claims have not been proven in court.