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City can't say if Presto contract was OK'd by lawyers
Ottawa Citizen - 6/28/2012

David Reevely, Ottawa Citizen, June 28, 2012

Link to story.

The city's top lawyer will never know for sure whether one of his staff saw the final drafts of Ottawa's contentious contracts to buy a new fare-payment system for OC Transpo, he told city councillors Wednesday, and he won't say publicly whether there's anything in those deals that alarms him.

The contracts spell out Ottawa's involvement in the Presto project that's shepherded by the provincial government. OC Transpo riders were supposed to start using it this weekend, replacing paper passes and eventually tickets with "smart cards" they would tap on bus-mounted readers. But the readers are plagued with so many bugs that the launch has been delayed until February.

Once the project ran in-to trouble, everyone started wondering what the con-tracts say about who's responsible for what and how Ottawa might hypothetically get out of them. When city solicitor Rick O'Connor dug them up, he found that none of them had a stamp, supposedly standard, indicating it was seen by a staff lawyer be-fore then-transit chief Alain Mercier signed it.

"I think it's my office's responsibility that that stamp wasn't on various contracts in this instance," O'Connor told councillors Wednesday as they debated a motion to put a requirement for that stamp - which has been a loosely observed city policy - in-to the city's procurement by-law. Managers wouldn't be al-lowed to sign contracts if they hadn't been stamped and initialled by a lawyer.

City council approved the change, but it did so after Mayor Jim Watson, who brought the motion person-ally, scrubbed out a clause that appeared to pin blame on Mercier for a contract that lacked exit clauses.

Mercier was fired last winter and now works in Quebec City. His Presto project man-ager, Jane Wright, who was fired by Mercier's replacement, John Manconi, insists that lawyer Ernest McArthur gave approval for the con-tracts by email. Both say con-tracts weren't routinely given the famous stamp.

McArthur, now retired, had previously refused to say what he did with the con-tracts until O'Connor spoke to councillors.

On Wednesday afternoon, McArthur repeated that he told O'Connor's office every-thing he could and would let his former boss's statements stand.

Other than that, he said, "In my experience, everything is stamped. Well, everything that crossed my desk was stamped before it went to the operational manager for execution."

Should the Presto contracts have been stamped? Mc-Arthur deferred to O'Connor.

After the meeting, O'Connor said he couldn't contradict Mercier's and Wright's ac-counts because he couldn't actually say anything definitively either way.

Metrolinx, the provincial transportation agency on the other side of the deal, has its executives' signatures next to a stamp saying the contracts were "approved for execution" and initials from one or more Metrolinx staffers.

"I need that stamp. All the other side seem to have their initials and all that stuff," O'Connor said.

The whole thing was complicated by McArthur's retirement, he said. A new lawyer wasn't hired for months and this missing stamp has illuminated problems with how work was passed on. O'Connor said he had read his staff the riot act to make sure it never happened again.

He emphasized that, with an instruction from city council in 2007 to join other Ontario cities that were working together on the Presto deal, Mercier had legal authority to sign the contracts without checking with a lawyer at all. It might not have been what councillors expected would happen, but it wouldn't have violated the orders they gave.

However, O'Connor said, Mercier "brought the lawyers in and they provided input." It's just now uncertain, to a definite legal standard, whether they saw the final drafts.

Is there anything in the contracts that wouldn't have passed muster? "Now you're getting into a matter of solicitor-client privilege," O'Connor said. In other words, maybe, but if there is anything O'Connor doesn't like, he doesn't want to tip his hand in case the problems with Presto ultimately blow up the deal.

That's not what the city wants, transit commission chairwoman Diane Deans said. "We want a product that works. We want the Presto card, we think it is a smart card, we think it will serve our customers in Ottawa very well," she said.

Councillors would talk about an exit strategy "if that day arrives, and hopefully it never will," she said. "It's not our desire to go down that path. Our desire is to have a working Presto card."

She said she had no further technical updates from the teams working on fixing the bugs in the system since last week, when the city and Metrolinx agreed to delay the launch until February, and had no meetings scheduled on the subject.

Copyright (c) The Ottawa Citizen

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