TPG Technology Consulting defended massive criminal bid-rigging case

In a dramatic finale of an eight month trial, on April 27, 2015, an eleven person jury delivered 60 non-guilty verdicts, dismissing all charges against the accused. The trial was presided over by Madam Justice Bonnie Warkentin of the Ontario Superior Court of Justice. The Indictment contained charges of bid-rigging contrary to section 47(2) of the Competition Act and conspiracy contrary to section 465 of the Criminal Code against seven individual accused, three corporate accused, and several other indicted and unindicted co-conspirators. The Crown alleged that the parties had submitted bids or tenders that were arrived at by agreement or arrangement that was not made known to the person calling for the bids or tenders at or before the submission of the bid or tender. The procurement vehicles at issue were ten Request for Proposals (RFPs) for services at Public Works and Government Services Canada (PWGSC), the Canada Border Service Agency (CBSA), and Transport Canada (TC). As the trial was by jury, there are no reasons for decision. However, the trial judge delivered a 300 page instruction to the jury. In the course of the trial, TPG and McDonald brought a successful motion to strike part of section 69 of the Competition Act on constitutional grounds. The provision struck created a reverse onus provision against accused. The trial was conducted in an Ottawa courtroom that was specially designed for this trial to accommodate the large amount of electronic documents involved. It was estimated that the disclosure contained over 1 million pages and more than 4000 documents were made exhibits at trial. The proceeding is one of the largest bid-rigging cases in Canadian history and was closely monitored by both the Ontario judiciary as a test case for electronic jury trials and by the procurement and competition bar as a test case in defending bid-rigging offences in court. Fasken Martineau acted for TPG and Philip McDonald with a team that included Peter Mantas, Patrick McCann, Alexandra Logvin, and Tala Khoury. To read our bulletin and the instruction to the jury, click here. To read the constitutional decision, click here.