Independent bus operators suing over RFP process

Jeff Green | Oct 18, 2012

On October 12, a group of school bus operators serving students in the Limestone, Prince Edward Hastings, Catholic School Board of Eastern Ontario launched a suit against their employer, Tri-Board Transportation Services, in the Belleville Court.

The suit alleges that the RFP (Request for Proposal) process through which the bus routes in the region will be divided up for five years starting next fall, constitutes a “breach of contract, negligence, negligent misrepresentation, and breach of the duty of fairness”. The suit asks the court for an “interlocutory and permanent injunction” restraining the closing of the RFP, which is scheduled for October 31.

The plaintiffs in the case include a number of small and medium-sized bus companies that have been delivering children to schools in the region for many years for Tri-board and Tri-board’s predecessors, and part of the statement of claim is that the RFP process is skewed in favour of larger companies, many of whom have no history in the region.

They say that larger companies can bid on up to 20% of the routes that are available, and in so doing they can submit low bids, offsetting the low-profit rural routes with profits from urban routes.

Smaller companies, including three in Central and North Frontenac, are only interested in the routes they have already been serving, but they are finding it difficult to complete a number of the questions in the RFP pertaining to managing fleet size, garage space, and others.

The suit also alleges that as the only potential employer for their services, the Tri-Board is responsible for some of the costs that the existing operators incurred in recent years, as they upgraded and purchased new buses and routes when other operators retired.

The suit also points out that the RFP stipulates that Tri-Board has the right to disqualify any bidder who has levelled “any lawsuits against Tri-Board or the school board in the last five years,” a move that the plaintiffs say is “an unlawful and improper attempt of Tri-Board to insulate itself and its conduct from judicial oversight and to intimidate operators from seeking access to justice in the courts of Ontario.”

The suit also alleges that of the 55 current operators in the Tri-Board region, 27 have not even picked up the RFP papers because “the terms of process are prohibitive.”

The RFP process for school bus service has been coming into force throughout Ontario, and there are a number of jurisdictions where it is in place already. According to the plaintiffs, the result has been devastating to the local operators in those jurisdictions. Research done by the Independent School Bus Operators Association indicates that the move to fewer and fewer large operators across North America has led to increased costs to school boards, and ultimately taxpayers as well.

The suit also refers to a provincially appointed task force, headed by former Justice Coutler Osborne, which raised serious questions about the process and its implementation in particular circumstances. Even though the Ministry of Education did not cede to many of the chief recommendations of the task force, it did leave local boards and transportation corporations with leeway in the decision about how to change procurement policies for bussing services.

In the lawsuit, the plaintiffs point out that “The Ministry made it clear that school boards and transportation consortia are not required to procure student transportation contracts through an RFP process and that alternative methods are acceptable”. The suit says that therefore Tri-Board was not forced to use the RFP process they have chosen.

The lawsuit is before the court in Belleville, and it will need to be heard in short order if it is to achieve its primary purpose, which is to stop the RFP process before October 31, when the bids are due.