Date: 20011108
Docket: A-668-00
Neutral citation: 2001 FCA 337
CORAM: RICHARD C.J.
NOËL J.A.
SHARLOW J.A.
BETWEEN:
XWAVE SOLUTIONS INC.
Applicant
and
PUBLIC WORKS & GOVERNMENT SERVICES CANADA
Respondent
Heard at Ottawa, Ontario, on November 6, 2001.
Judgment delivered at Ottawa, Ontario, on November 8, 2001.
REASONS FOR JUDGMENT BY: RICHARD C.J.
CONCURRED IN BY: NOËL J.A.
SHARLOW J.A.
Date: 20011108
Docket: A-668-00
Neutral citation: 2001 FCA 337
CORAM: RICHARD C.J.
NOËL J.A.
SHARLOW J.A.
BETWEEN:
XWAVE SOLUTIONS INC.
Applicant
and
PUBLIC WORKS & GOVERNMENT SERVICES CANADA
Respondent
REASONS FOR JUDGMENT
RICHARD C.J.
[1] This is an application for judicial review of the September 26, 2000 decision of the Canadian International Trade Tribunal (the Tribunal), [2000] C.I.T.T. No. 86, in which the Tribunal found that the complaint filed by Xwave Solutions Inc. (the applicant) under subsection 30.11(1) of the Canadian International Trade Tribunal Act R.C.S. 1985 (4th Supp.), c-47 was not valid. The Tribunal issued its statement of reasons on October 12, 2000.
[2] On June 28, 2000, the applicant filed a complaint with the Tribunal under subsection 30.11(1) of the Canadian International Trade Tribunal Act concerning the procurement (Solicitation No. W8474-9-HC02/A) by the Department of Public Works and Government Services (the Department) for the provision, installation and support of a Security and Military Police Information System that includes occurrence management and computer-aided dispatch capabilities for the Department of National Defence.
[3] The applicant's complaint had two aspects. One was that the Department did not properly interpret the requirement of section 3.3.1.1, entitled "Current Field Installations", of the Statement of Work (SOW) relating to the fielding experience of the OMS/CAD (Occurrence Management System/Computer-aided Dispatch) software. The Department interpreted "OMS/CAD"to mean OMS and CAD. The applicant submitted that the expression "OMS/CAD" should have been interpreted to mean: (1) OMS or CAD; or (2) OMS and/or CAD. The other aspect of the applicant's complaint was that the Department's interpretation would favour one specific product contrary to Article 504(3) of the Agreement on Internal Trade (AIT).
[4] After a review of the evidence and the position of the parties, the Tribunal found that the expression "OMS/CAD" found in section 3.3.1.1 of the SOW, read in the context of the Request for Proposal as a whole, meant "OMS and CAD".
[5] In Siemens Westinghouse Inc. v. Canada (M.P.W.G.S.), 2001 FCA 241 at 4, this Court considered the appropriate standard of review in matters involving the interpretation of procurement documents. It held that:
In approaching a judicial review of the CITT in procurement matters, this Court has established in prior decisions that, based on a pragmatic and functional approach, the standard of review to be employed is correctness for matters of jurisdiction and patent unreasonableness for matters within the jurisdiction of the CITT.
[6] The Court also held that when particular legal issues emerge during the course of judicial review that are within the jurisdiction of the Tribunal but outside its area of expertise, such questions may require the Court to invoke the correctness standard, but in its view this would occur only rarely.
[7] The applicant submits that the standard of review in this case should be reasonableness.
[8] I am not persuaded that it is necessary in this case to revisit the jurisprudence on standard of review. In my view, it was reasonably open to the Tribunal to construe the expression "OMS/CAD" found in section 3.3.1.1 of the SOW as it did. I would not interfere with that decision whether the standard of review is reasonableness or patent unreasonableness. That disposes of the first aspect of the complaint.
[9] The Tribunal did not deal with the second aspect of the complaint which was the allegation that the Department's interpretation would favour one specific product contrary to Article 504(3) of the AIT. On this point the Tribunal said:
xwave alleged that, under such an interpretation, only the Versaterm product could satisfy the fielding requirement of s. 3.3.1.1. of the SOW. The Department challenged that assertion. In the present case, the Tribunal does not have to make a determination with respect to that issue. Having determined that the expression "OMS/CAD" in s. 3.3.1.1. of the SOW, when read in context, could not reasonably be interpreted to mean "OMS or CAD", it follows that xwave reasonably should have become aware of this ground of complaint at the time of the issuance of the RFP. The 10-working day time limit having long since elapsed, it is now too late for Xwave to complain that section 3.1.1.1 favoured a specific supplier in contravention of the applicable provisions of the trade agreements.
[10] The complaint was filed on June 28, 2000. The applicant argued that the time began to run on June 20, 2000 when it first learned of the Department's interpretation. In an affidavit dated November 24, 2000 filed in support of the applicant's application for judicial review, John Taker, the Business Director of the Public Safety Group, a business area of Xwave Solutions Inc. stated:
xwave was notified by PWGSC, the Department who issued the RFP on behalf of DND, on June 14, 2000 that the contract had been awarded to another bidder, and that xwave had been deemed non-compliant for failing to comply with the mandatory requirements of s. 3.3.1.1 of the Statement of Work.
At our insistence, a de-briefing meeting was held between xwave and PWGSC on June 20, 2000 to review the proposal. It was at this meeting that xwave was told, for the first time, that its proposal was not technically compliant as a result of its failure to demonstrate that both its OMS and CAD integrated systems had been successfully fielded in at least three other police agencies, two of which are in Canada.
[11] In my view, the sole sourcing issue is inextricably linked to the interpretation of section 3.3.1.1. Although it was open to the Tribunal to interpret "OMS/CAD" as it did, it does not follow that the applicant's interpretation was unreasonable or that the applicant ought reasonably to have become aware of the Department's interpretation sooner than it did. The Tribunal's decision as to the timeliness of the sole sourcing aspect of the complaint was clearly wrong.
[12] This application for judicial review should be allowed in part and the matter remitted to the Tribunal with a direction that it consider only the aspect of the applicant's complaint relating to Article 504(3) of the AIT. In view of the result, no costs should be awarded.
"J. Richard"
Chief Justice
"I agree
Marc Noël J.A."
"I agree
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-668-00
STYLE OF CAUSE:
XWAVE SOLUTIONS INC.
and
PUBLIC WORKS & GOVERNMENT SERVICES CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 6, 2001
REASONS FOR JUDGMENT : RICHARD C.J.
CONCURRED IN BY: NOËL J.A.
SHARLOW J.A.
DATED: November 8, 2001
APPEARANCES:
Mr. Eric R. Williams
FOR THE APPLICANT
Mr. David M. Attwater
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Williams, McEnery & Davis
Ottawa, Ontario
FOR THE APPLICANT
Lang, Michener
Ottawa, Ontario
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