Siemens Westinghouse Inc. v. Canada (Minister of Public Works and Government Services), 2001 FCA 241

Date: 20010724

Docket: A-203-01

                                                                                                                Neutral citation: 2001 FCA 241

CORAM:        LINDEN J.A.

ISAAC J.A.

                         MALONE J.A.

BETWEEN:

                                                   SIEMENS WESTINGHOUSE INC.

                                                                                                                                                       Applicant

                                                                              - and -

                                           THE MINISTER OF PUBLIC WORKS AND

                                GOVERNMENT SERVICES CANADA, MIL SYSTEMS

                                                 a Division of Davie Industries Inc., and

                                                                    FLEETWAY INC.

                                                                                                                                               Respondents

                                                                              - and -

                                  CANADIAN INTERNATIONAL TRADE TRIBUNAL

                                                                                                                                                     Intervener

Heard at Calgary, Alberta, on Tuesday, June 19, 2001

JUDGMENT delivered at Ottawa, Ontario, on Tuesday, July 24, 2001                                                    

REASONS FOR JUDGMENT BY:                                                                                    MALONE J.A.

CONCURRED IN BY:                                                                                                         LINDEN J.A.

                                                                                                                                                    ISAAC J.A.

Date: 20010724

Docket: A-203-01

Neutral citation: 2001 FCA 241

CORAM:        LINDEN J.A.

ISAAC J.A.

MALONE J.A.

BETWEEN:

                                                   SIEMENS WESTINGHOUSE INC.

                                                                                                                                                       Applicant

                                                                              - and -

                                           THE MINISTER OF PUBLIC WORKS AND

                                GOVERNMENT SERVICES CANADA, MIL SYSTEMS

                                                 a Division of Davie Industries Inc., and

                                                                    FLEETWAY INC.

                                                                                                                                               Respondents

                                                                              - and -

                                  CANADIAN INTERNATIONAL TRADE TRIBUNAL

                                                                                                                                                     Intervener

                                                        REASONS FOR JUDGMENT

MALONE J.A.

This is an application for judicial review of a decision by the Canadian International Trade Tribunal (the "CITT" or the "Tribunal") dated March 19, 2001. That decision dismissed the applicant's complaint on the basis that the procurement re-evaluation process conducted by Public Works and Government Services (the "Department") and the Department of National Defence ("DND") was fair, and that any errors that may have been committed had no material impact on the ultimate treatment of the applicant's bid proposal.

Issues

There are several issues before the Court; jurisdictional as well as factual and legal. But generally, the primary issue is whether the CITT erred in law in its interpretation of tender documents when it upheld the results of the technical re-evaluation of the competing bid proposals.

Facts

On November 3, 2000, the applicant Siemens Westinghouse Inc. ("Siemens") filed a complaint with the CITT under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4^th Supp.)(the "CITT Act"). The complaint was in respect of a $35 million procurement by the Department for the provision of in-service support for sixteen Canadian frigates and destroyers.

Siemens had initially submitted the winning proposal and did part of the work which was accepted. However, in response to a complaint by a competing bidder, the CITT found Seimens's proposal to be non-responsive and recommended that the Department and DND re-evaluate the proposals from the other competitors, Fleetway Inc. ("Fleetway") and a joint venture composed of MIL Systems and Fleetway ("MIL/Fleetway"). The re-evaluation was recommended on the basis that the evaluation handbook used in evaluating the first proposals introduced evaluation and weighting methodology that could not be anticipated or derived from the methodology set out in the Request for Proposal ("RFP").

Both Siemens and MIL/Fleetway applied to this Court for judicial review of the CITT's decision. On that review, this Court held that the technical merit re-evaluations should go forward but that the Siemens bid was, in fact, responsive and therefore should be re-evaluated with the other bids (Siemens Westinghouse Inc. v. Canada (M.P.W.G.S.) (2000), 260 N.R. 367, [2000] F.C.J. No. 999 (F.C.A.)). In response to this Court's judicial review determination, the CITT issued an amended recommendation on July 21, 2000 ([2000] C.I.T.T. No. 54, File No. PR-99-034R) in the following terms:

[...] The Canadian International Trade Tribunal further recommends that the Department of Public Works and Government Services and the Department of National Defence re-evaluate the technical merits of the proposals submitted by MIL Systems, (a Division of Davie Industries Inc.), and Fleetway Inc., a joint venture, and by Fleetway Inc. and the proposal submitted by Siemens Westinghouse Incorporated, in accordance with the evaluation methodology set out in the [R]equest for Proposal, and proceed thereon with this procurement as provided in the Request for Proposal and the Agreement on Internal Trade.

In May of 2000, the Department and DND had already begun to establish an independent structure for re-evaluating the technical merit of the proposals. The Department led the re-evaluation which was conducted by a team of five DND officials headed by a Chairperson from the Department. Various measures were instituted in order to create a barrier between the re-evaluation team and the prior evaluation team so as to ensure fairness and objectivity in the re-evaluation process.

On July 11, 2000, the re-evaluation team completed the development of the re-evaluation handbook establishing the rules for the re-evaluation and the assumptions that would apply to it. The handbook also listed the roles of the re-evaluation team members, the independent chairperson and the "fairness monitor" who was appointed from the private sector in late May of 2000. The re-evaluation handbook was developed independently of any reference to, or examination of, the initial evaluation handbook or the review of the bids by the first evaluation team.

The re-evaluation was guided by the following principles set out in the handbook:

·           The members of the re-evaluation team were to have no previous involvement in the evaluation and must have stated that they have no personal interest in which bidder is ultimately successful.

·           The members of the re-evaluation team were to be responsible for maintaining a high level of confidentiality during the re-evaluation and for ensuring complete confidentiality of the re-evaluation. All activities and team-related re-evaluation documentation were to be restricted to the Major Projects Service Line facilities.

·           A fairness monitor from the private industry would monitor all aspects of the re-evaluation process and would be given unlimited access to all proceedings. He would be mandated to raise fairness concerns at any time.

·           Department of Justice legal counsel was to be assigned to the re-evaluation, involved in all approval processes and consulted regularly.

·           Scoring documents were to be prepared to enable the members of the re-evaluation team to provide fair and equitable scoring of all proposals, in accordance with the original RFP documents; the detailed scoring criteria were to be developed to be consistent with Annex "H" of the RFP.

·           Copies of the RFP and bidders' proposals were to be clean (i.e. they were to have no notations or markings on them from the first evaluation).

·           Individual scoring by the members of the re-evaluation team was to be followed by consensus agreement.

In addition, the following assumptions were set out in the second handbook:

·           All bidders were to be compliant with respect to all mandatory requirements.

·           No additional information could be obtained from bidders.

·           The individuals evaluated in the proposals would be the ones doing the work under the resulting contract.

·           Since the technical proposals from MIL/Fleetway and Fleetway were identical, the re-evaluation team would evaluate the MIL/Fleetway technical proposal and apply the score to both Fleetway bids.

The re-evaluation commenced on July 12, 2000. By mid-September 2000, all individual scoring was completed and the members of the re-evaluation team held consensus review meetings. On September 15, 2000, the re-evaluation team's scoring was finalised and the Personnel Evaluation Detailed Scoring Tables were prepared and signed by the evaluators. These tables showed that Siemens had failed section 2.0 (Project Management Organization Plan), section 6.0 (Data Link Access Plan) and section 7.0 ( Transition Plan) of Annex "H" of the RFP.

The fairness monitor certified the results in his report of September 19, 2000 and on October 5, 2000, Siemens was advised that its proposal was evaluated as being non-compliant. On October 13 and 19, 2000, Siemens objected in writing to the results of the re-evaluation and eventually filed a complaint with the CITT. On March 19, 2001, that complaint was dismissed by the Tribunal ([2001] C.I.T.T. No. 26, File No. PR-2000-039). In essence, the CITT found that the Department's decision to undertake a wholesale re-evaluation of the technical merits of the proposals was fair and the methodology employed in the re-evaluation was, for the most part, consistent with the RFP and compliant with the Agreement on Internal Trade (the "AIT"). Where the re-evaluation was not consistent with the RFP or compliant with the AIT, the Tribunal determined that no prejudice to the Siemens bid had occurred.

Siemens now applies to this Court for judicial review of the Tribunal's decision.

Standard of Review

The first issue to be considered in any judicial review application is the appropriate standard of review to be applied to the decision being challenged. In recent years this exercise has proven increasingly sophisticated. It is now recognized that there is a spectrum of curial deference that may be utilized ranging from the most deferential - patent unreasonableness, through unreasonableness simpliciter and ending with correctness, the most exacting standard.

In choosing which of these standards of review to employ, and in applying it, our courts take a "pragmatic and functional" approach. The main issue in this preliminary exercise is to determine the extent to which the legislature intended to grant the exclusive decision-making power to the tribunal being reviewed. The factors to be considered in this exercise are: (1) the expertise of the tribunal relative to the courts in deciding the issue under review; (2) the purpose of the Act and the provision being considered; (3) the existence or absence of a privative clause; and (4) the nature of the issue decided (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). Mr. Justice Major, on behalf of the Supreme Court, has recently re-examined and applied these principles to a CITT decision dealing with the Customs Act (See 2001 SCC 36">Mattel Canada Inc. v. The Queen et al. 2001 SCC 36, [2001] S.C.J. No. 37 at para. 24).

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. (See Canada (A.G.) v. Symtron Systems Inc., [1999] 2 F.C. 514 (F.C.A.) at 533; Canada (A.G.) v. Corel Corp. (1999), 241 N.R. 190; E.H. Industries Ltd. v. Canada (Minister of Public Works and Government Services) (2001), 267 N.R. 173, 2001 FCA 48; Novell Canada Ltd. v. Canada (M.P.W.G.S.) (2000), 257 N.R. 179 at 180). In the earlier judicial review application to this Court between these parties concerning this very same procurement, the standard of review employed by the Court to decide the issue, which was held to be within the jurisdiction of the Tribunal, was patent unreasonableness. (See Siemens Westinghouse Inc. v. Canada (M.P.W.G.S.) (2000), 260 N.R. 367 at para. 9). It is noteworthy that the Supreme Court denied leave to appeal that decision of this Court ([2000] S.C.C.A. No. 342).

It was agreed by Counsel that at least one of the issues involved in this appeal is jurisdictional and, hence, reviewable on the correctness standard: that is, whether the Tribunal must ensure compliance with its own and this Court's previous procurement decisions. As for the remaining issues, there was substantial disagreement about the standard of review. This Court must therefore, having regard to the legislation and the jurisprudence, determine whether the standard to be employed is patent unreasonableness, as decided in earlier cases, or whether the correctness or reasonableness standard is more appropriate in light of the Mattel decision, supra.

On this application, it has been contended that this Court should reconsider its earlier decisions in light of the Mattel decision, in which the Supreme Court held that the standard of correctness was applicable to a CITT decision determining a question of law within its jurisdiction. Counsel for Siemens contended that for each legal issue that may arise in the course of the procurement process, the Court should not necessarily give high deference, but should determine which standard of review is appropriate to decide the specific matter. Where the legal issue is one in which the CITT's expertise is not superior to that of the Courts, it was urged that the standard of review should be correctness; where the CITT's expertise is greater than that of the Courts, then deference might well be accorded to it.

In response to questions from the Court, Counsel for Siemens acknowledged that there could be dozens of potential legal issues that might arise, which would necessitate a judicial determination of the appropriate standard of review applicable to each one. He suggested that the various issues might be grouped together, some to be decided by one standard and others by yet another.

In my view, that is not the effect of Mattel. In that case, the issue being reviewed was a CITT decision about a finding of "value for duty" under the Customs Act. During the course of that determination, the Tribunal had to decide the meaning of the words "a sale of goods for export to Canada" and the phrase "a condition of the sale of goods", as contained in the Customs Act. The Supreme Court found (at para. 33) that

[...] these were pure questions of law that require the application of principles of statutory interpretation and other concepts which are intrinsic to commercial law. Such matters are traditionally the province of the Courts and there is nothing to suggest that the CITT had any particular expertise in respect of these matters.

Thus, it is apparent that particular legal issues may emerge during the course of judicial review that are within the jurisdiction of the CITT but outside its area of expertise. Such questions may require the Court to invoke the correctness standard, such as in Mattel, but this in my view would occur only rarely. Other examples of this might be where a constitutional or international treaty issue arises before a tribunal (Pushpanathan, supra), where the interpretation of a general statute not within the expertise of the tribunal arises or where a significant legal question arises for the first time (Harvard College v. Canada (Commissioner of Patents), [2000] 4 F.C. 528 (C.A.), leave to appeal to S.C.C. granted [2000] S.C.C.A. No. 474). No analogous situation arises in this case.

In this case, the legal issues being reviewed are squarely within the Tribunal's area of expertise. They are not "pure questions of law that require the application of principles of statutory interpretation and other concepts which are intrinsic to commercial law". Rather, they are complex legal and factual issues that demand specialized expertise in the fields of economics, business and procurement practices. The detailed criteria in the RFP and the second evaluation handbook have to be interpreted in addition to intricate contractual and legislative provisions. In other words, in this case the CITT had to decide whether the tender documents properly identified the requirements and evaluation criteria in the RFP and whether the procurement was conducted according to them and the applicable contracts, trade agreements and legislation. This complex exercise demands unique expertise and experience and is the everyday work of the Tribunal.

The expertise of the CITT in these matters is undoubted. Since 1995, it has dealt with more than 375 procurement complaints. The CITT became Canada's bid challenge authority pursuant to Article 1017 of the North American Free Trade Agreement (NAFTA) on January 1, 1994, replacing its predecessor under the Canada-United States Free Trade Agreement, the Procurement Review Board of Canada. The CITT also became the bid challenge authority for the Agreement on Internal Trade (AIT) on July 1, 1995 and for the World Trade Organization Agreement on Government Procurement (AGP) on January 1, 1996. Legislation has been enacted to ensure that procurements are conducted openly and fairly, and the CITT is responsible for overseeing all of this activity. The CITT consists of a Chairperson, two Vice-Chairpersons and not more than six other permanent members appointed for terms of up to five years. Assisting the members are staff experts with in-depth knowledge of procurement practices.

Hence, it is clear that Parliament meant this expert tribunal to be responsible for overseeing the procurement activities of the government and that the Courts' review of their decisions, except for jurisdictional and other exceptional cases, ought to be on the standard of patent unreasonableness, which means that, unless they are clearly irrational, they must stand.

Also to be considered, in addition to comparative expertise, is the legislative language. The power granted to the CITT to review the procurement process demonstrates that it is to be afforded wide latitude. In order to comply with the AIT, which requires governments to promote "fair, open and impartial procurement procedures"(see Article 514(2)), bid protest procedures were created. Section 30.11 of the CITT Act allows complaints to the Tribunal on "any aspect of the procurement process". Subsection 30.14(2) of the CITT Act also mandates that the Tribunal shall determine the validity of a complaint on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been or are being observed. Section 11 of the Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/93-602 (the Procurement Regulations) further specifies that, in conducting an inquiry into a complaint, the CITT is to determine whether the procurement was conducted in accordance with the NAFTA, AIT, or AGP, whichever is applicable. This is a broad authority indeed.

The language of the CITT Act also indicates that the Tribunal was designed to grapple with issues affecting the interrelated and interconnected rights and interests of different constituencies. In this connection, the CITT has been granted certain policy and advisory functions in addition to its supervisory role in the procurement field. For example, section 18 of the CITT Act provides that the Tribunal is to conduct inquiries into, and prepare reports on, any economic, trade or commercial matters referred to it by the Governor in Council. This advisory function is clearly distinguishable from the regular functions of a court in adjudicating legal rights. Although the Tribunal was not acting under section 18 or an analogous section of the CITT Act in the matter presently under review, its legislated role in policy formation, as suggested in Mattel (at para. 31), reflects upon the scope of the CITT's expertise and suggests a degree of deference be accorded to that Tribunal by this Court.       

There is no privative clause in the statute creating the CITT. Nor is there any specific right of appeal given. It appears, therefore, that the usual judicial review provisions of sections 18 to 18.5 (except subsection 18.4(2)) and section 28 of the Federal Court Act govern the scope of review of the CITT's decisions on procurement. In contrast, when the CITT reviews customs matters, as in the Mattel case, the Customs Act specifically permits appeals to the Federal Court of Appeal on any question of law.

Yet another factor to examine is the nature of the issue that was decided by the Tribunal. This factor overlaps to some extent with the relative expertise factor previously canvassed. The distinction between questions of law and fact for the purposes of identifying the appropriate review standard is necessary because, as a general rule, factual issues will be entitled to more deference than legal issues on the basis that primary finders of fact usually possess the advantage of seeing and hearing witnesses first-hand. Legal issues, on the other hand, generally warrant less deference given the expertise of courts in legislative interpretation and jurisprudential application.

Of course, in certain circumstances administrative boards may be so specialised that their interpretation of the statutes under which they operate will be accorded some deference by the Courts. In this way, the National Energy Board's interpretation of "mines and minerals" in section 81 of the National Energy Board Act was accorded a high degree of deference by this Court in Leroux v. Transcanada Pipelines Ltd., [1998] F.C.J. No. 724 (C.A.). Similarly, the CITT's interpretation of certain classifications of goods under the Customs Tariff was reviewed on a reasonableness simpliciter standard in Minister of National Revenue (Customs and Excise) v. Schrader Automotive Inc. (1999), 240 N.R. 381 (F.C.A.) because the highly technical nature of that legislation reduced the scope for expert judicial interpretation of the classifications.   

In this case, the non-jurisdictional issues under review essentially involve the application of trade law principles as found in the various trade agreements to the tender documents and to the facts of this technical re-evaluation. In essence, these are questions of mixed fact and law. While the Tribunal did not hear oral evidence in this case, it nonetheless still enjoyed a relative expertise in analysing tender documents which demands deference from this Court. Unlike the pure questions of law raised in Mattel which required the interpretation of non-technical legislative provisions, the questions of mixed fact and law under review in the present case are questions to which the CITT's expertise is particularly suited. Indeed, the volume of cases before the Tribunal which raise such questions indicates that, of necessity, the CITT and its members have acquired considerable experience relative to courts in this area.

As this Court stated in Symtron (supra at 533) the CITT is given "wide latitude when deciding [both] legal and factual matters within its jurisdiction". This must be so if the procurement system is to function as Parliament intended. It would not be advisable for the Courts to undermine the Tribunal by undertaking to supervise in detail, on a correctness standard, every minute aspect of the complex decision-making process entrusted to the CITT with respect to government procurements.

Hence, on the basis of the pragmatic and functional approach, and considering the four factors stressed by the Supreme Court of Canada and applied most recently in Mattel, the legal and factual issues within the jurisdiction of the Tribunal that are being challenged by this application must continue to be determined on the patent unreasonableness standard.

Analysis

Siemens raised six different grounds upon which it seeks review of the CITT's decision. I will deal with each issue in turn.

(a) Jurisdiction of CITT to Enforce Prior Procurement Decisions

The first ground of review raised by Siemens is that the CITT failed to ensure that the re-evaluation complied with the previous decisions of the CITT and this Court regarding the flawed methodology and unreliable results of the initial evaluation. In Siemens' submission, those decisions recognized that the initial evaluation of the proposals adopted the correct methodology under the RFP in all respects save one: the use of the compressed scale for passes and fails. That is, the first evaluation team improperly introduced a median figure "0.3" for a fail and "0.8" for a pass when computing the final scores. In the circumstances, Siemens argued that the CITT, in reviewing the re-evaluation of proposals, was bound to ensure that the re-evaluation proceeded in the same way as the initial evaluation but with the use of a pass/fail scale using the full range between "0" and "1". In short, Siemens argued that the CITT, in reviewing the re-evaluation of the proposals, should have ensured that the re-evaluation proceeded on the basis of a simple recalculation of the scores on a full "0" to "1" scale instead of on the basis of an evaluation de novo according to the second handbook.

All Counsel agreed that this first ground of review involves a question going to the scope of the CITT's jurisdiction. Specifically, the question is whether it is within the CITT's legislative mandate to ensure that procurements are conducted in strict accordance with any Court directions or CITT recommendations pronounced in earlier reviews of that particular procurement. According to the Tribunal, it is not. The CITT refused to entertain Siemens' argument for the following reasons (at paras. 76-78):

¶ 76 The Tribunal notes that the issue is not to determine whether the directions of the Court or the recommendation of the Tribunal in relation to this solicitation have been properly implemented or fully complied with by the Department and DND. Rather, [...] the Tribunal is of the view that the implementation by the Department of its recommendation of July 21, 2000, effectively extended the procurement process for this solicitation and gave rise to the possibility of new challenges by potential suppliers, which are entitled to submit protests concerning any aspect of the procurement process. In this context, the Tribunal will consider and decide the grounds of complaint, properly filed by SWI, which allege that the conduct of the Department and DND in completing the re-evaluation breached the provisions of the RFP and the AIT. In so doing, the Tribunal will, of course, be mindful of the previous Court and Tribunal decisions in relation to this solicitation. However, the Tribunal will not review the extent to which the directions of the Court and the recommendation of the Tribunal have been complied with or implemented, because they do not constitute an aspect of the procurement process.

¶ 77 Article 506(6) of the AIT provides that "[t]he tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria".

¶ 78 With respect to the first question raised by SWI, the Tribunal will not decide the extent to which the Department's and DND's actions in developing the re-evaluation methodology and in establishing the re-evaluation team complied with the Court's directions and/or the Tribunal's determination. [emphasis added] [footnotes omitted]

Siemens argued that the CITT, in refusing to address the issue of enforcing past procurement decisions, took too narrow a view of its jurisdiction and, in so doing, committed a reversible error of law. Following the jurisprudential authority cited above (at paragraph 15), this Court must apply the most exacting standard of review to the CITT's decision not to address this ground of the Siemens complaint, as that decision was based squarely on an assessment of its own jurisdiction. Applying this standard, I am satisfied that the CITT was correct to regard the enforcement of prior procurement decisions as a matter falling outside of its jurisdiction.

On my reading of the CITT Act, the CITT only has the power to make recommendations in the event that it finds a complaint to be valid. Subsection 30.15(2) reads as follows:

According to subsection 30.18(1), the government institution to which the CITT has made a recommendation under subsection 30.15(2) shall, subject to the regulations, implement the recommendations "to the greatest extent possible". The balance of section 30.18 requires the government institution to advise the CITT in writing of the extent to which it has implemented the Tribunal's recommendations and, if applicable, to give the reasons why it has decided not to implement them fully:

Apart from this advisory requirement, there does not appear to be any limitation on the government institution's discretion not to implement CITT recommendations.

Siemens relied on the language of subsection 17(2) of the CITT Act which speaks of the CITT's powers of a superior court with regard to the enforcement of its orders. However, it should be noted that subsection 17(2) provides for "all such powers, rights and privileges as are vested in a superior court of record" only "as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters proper for the due exercise of its jurisdiction". Given that the CITT only possesses a recommendation power in respect of procurement complaints according to subsection 30.15(2), it is apparent that the enforcement of the Tribunal's recommendations is not within the CITT's jurisdiction. Accordingly, the "enforcement of orders" mentioned in subsection 17(2) does not, in my opinion, include orders enforcing the Tribunal's recommendations or the directions of this Court.

I agree with the submission by Counsel for the CITT that the extent to which such directions and recommendations are complied with is not an "aspect of the procurement process" which triggers the CITT's jurisdiction under subsection 30.11(1) of the CITT Act. Sections 7 and 11 of the Procurement Regulations and subsections 30.11(2) and 30.14(2) of the CITT Act clearly limit the CITT's inquiry to whether the procurement in question has complied with the terms of the applicable trade agreements.

It should also be noted that Siemens has downplayed the nature and scope of the defects in the first handbook as identified by the CITT and this Court. Contrary to the position taken by Siemens, these defects cannot be corrected merely by recalculating the scores from the initial evaluation on the basis of a full "0" to "1.0" rating scale. Furthermore, the July 21, 2000 revised recommendation of the CITT clearly states that a re-evaluation should take place in accordance with the methodology described in the RFP and on the basis of the procedural rules in the AIT. The Department and DND did just that. Siemens has cited no authority for the proposition that the re-evaluations must take place only on the basis of the first evaluation handbook, except for the specific errors identified in a CITT or Court decision. In the result, the first ground of review must be dismissed.

(b) Re-evaluation Criteria & Article 506(6) of the AIT

Under this second ground of review, Siemens contended that the re-evaluation methodology as developed in the second evaluation handbook deviated from the methodology established by the RFP and therefore breached Article 506(6) of the AIT. In particular, Siemens identified in the re-evaluation handbook an undisclosed subcriterion called "depth and experience of staff" in relation to Rated Requirements 6.0 and 7.0 of Annex "H" of the RFP    This, it argued, was a material deviation from the methodology set out in the RFP. In Siemens' submission, the blanket application of that subcriterion amounted to an unfair repeated assessment of the same criterion and was wholly unforeseeable because bidders were required by the RFP to identify personnel and expertise only in relation to Rated Requirements 2.0, 3.0 and 4.0. Furthermore, the subcriterion was nowhere to be found in the initial evaluation of Rated Requirements 6.0 and 7.0 and therefore could not have been clearly identified in the RFP as required by Article 506(6).

Article 506(6) of the AIT states, in part:

The tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating criteria.

The CITT's determination that the subcriterion "depth and experience of staff", as applied to Rated Requirements 6.0 and 7.0, was to be anticipated on the language of the RFP is entitled to a high degree of deference. The evaluation of tender documents to assess compliance with the AIT is at the centre of the CITT's jurisdiction and expertise (See subsection 30.14(2) of the CITT Act and section 11 of the Procurement Regulations).

It is true that verbatim reference to the "depth and experience of staff" subcriterion only appears in relation to Rated Requirements 2.0, 3.0 and 4.0 in Annex "H" of the RFP. However, the CITT's conclusion is supported in particular by section 2 of the RFP's Section C which states that the evaluation of technical merit in Annex "H" shall assess, among other things, "the extent of additional experience above the minimum (mandatory) requirement". In addition, there is a clear statement under heading II "Rated Requirements" at the beginning of Annex "H" that all of the Rated Requirements will be assessed on the resources and personnel tendered. I am satisfied that these references, together with various additional references to resources and personnel in the Statement of Work, lend adequate support to the Tribunal's conclusion that the subcriterion "depth and experience of staff" was clearly signalled to the bidders by the language of the RFP.

While an RFP must identify all major evaluation criteria, it is not required to identify all aspects of each criterion which might be taken into account, provided that the unidentified aspects are reasonably related to, or encompassed by, the express criterion. The CITT's decision was not irrational, let alone clearly irrational. This ground of review must accordingly be dismissed.

(c) Ambiguity of the RFP

Siemens argued in the alternative that if the RFP is indeed capable of supporting two different evaluation processes, each with different criteria and weightings, then its terms are clearly ambiguous in that they do not clearly identify the criteria and methods for weighting them in breach of Article 506(6) of AIT. That ambiguity was said to have prejudiced the Siemens bid because it led to the adoption of a completely different evaluation methodology according to which the Siemens proposal was found to be non-compliant. Siemens took particular exception to the following passage of the CITT's reasons (at para. 79):

Insofar as the re-evaluation methodology is concerned, the Tribunal is of the view that the RFP and related SOW [Statement of Work] were open to a number of reasonable "decompositions" of their component parts for evaluation purposes. In the absence of any particular or specific "decomposition" prescribed in the RFP, the Tribunal is of the view that it was open to the Department and DND to adopt any "decomposition" that was consistent with the provisions of the RFP, which brings us to the second question.

The Tribunal's opinion that the RFP was open to be broken into a number of simpler constituents for evaluation purposes is not unfair. It certainly does not amount to an admission that the RFP was ambiguous and therefore not in compliance with the requirements of Article 506(6) of the AIT. In my view, it is obvious that in order to render operational the criteria and weightings in an RFP so as to evaluate proposals, there must, of necessity, be a translation or descriptive process that, depending on the particular RFP in question, is capable of yielding a number of different formulations or "decompositions", each of which may be consistent with the methodology stated in the RFP. To find otherwise would, in my opinion, be unrealistic. What is of concern to the CITT in hearing a complaint under section 30.11 of the CITT Act is whether any particular decomposition identified in an evaluation or re-evaluation handbook is in fact logically consistent with the terms of the RFP. Therefore, the CITT's decision that the terms of the RFP were not ambiguous is not patently unreasonable. This ground of review must also be dismissed.

(d) Prejudice to Siemens by Virtue of Withholding Documents

The CITT found that the Department and DND had contravened the "fair treatment of proposals" obligations outlined in Article 518 of the AIT when they decided to isolate the re-evaluation team from the documents submitted by Siemens to the initial evaluation team for the purposes of pre-qualifying the minimum mandatory requirements under section 1.3 of Section C of the RFP. This was because, in the Tribunal's view, technical evaluation criterion "2.0c C2" was virtually the same as the minimum requirement in section 1.3 of Section C of the RFP on which the first evaluation team had found Siemens compliant. According to the CITT, the failure to provide the re-evaluation team with the pre-qualifying documents (which did not form part of the actual Siemens proposal) in order to assess technical criterion "2.0c C2" therefore resulted in a material downgrading of the evaluation results for the Siemens bid with respect to Rated Requirement 2.0 of Annex "H" of the RFP. However, the Tribunal determined that this error did not "substantively permeate and materially affect" the overall scoring of Rated Requirements 6.0 and 7.0 of the Siemens proposal and therefore was not grounds to provide a remedy.

Siemens argued that there was no evidence upon which the CITT could have relied in arriving at its determination that the withholding of documents from the re-evaluation team did not materially affect Siemens' results for Rated Requirements 6.0 and 7.0. I am of the opinion that it is sufficient, in order to dispose of this ground, to note that Siemens has made no attempt to demonstrate how the specific contents of the withheld documents would have changed the assessment of the "depth and experience of staff" subcriterion applicable to the technical merits of its bid. Knowing the contents of these documents, Siemens was well placed to demonstrate the allegedly detrimental effect of their absence during the technical re-evaluation of Rated Requirements 6.0 and 7.0. However, it has not attempted to do so in any substantive manner. On my analysis, the Tribunal's conclusion on this issue was not patently unreasonable.       

(e) Withholding Fleetway Proposal from Re-evaluation

Siemens argued that the decision of the Department and DND to re-evaluate the technical merits of only two of the three bid proposals constituted a clear deviation from the CITT's July 21, 2000 recommendations, which the Tribunal should have enforced when addressing the Siemens complaint. This ground of review relates back to the first ground regarding the jurisdiction of the CITT to enforce prior procurement decisions. Given my view that the CITT was correct to limit itself to being mindful of past decisions (See paragraphs 33-38, supra), I can find no error in its refusal to address the enforcement aspect of the Siemens complaint on this ground.

It is noteworthy that the CITT nonetheless addressed the fairness aspect of the decision to withhold the Fleetway proposal from re-evaluation. It concluded that each proposal was re-evaluated on its own merits and that the evaluation methodology reflected in the solicitation documents did not involve a comparative analysis and rating of the proposals received. On this basis, the CITT came to the conclusion that the Siemens bid could not have been prejudiced by the withholding of the Fleetway proposal from re-evaluation on the basis that its technical proposals were identical to the joint MIL/Fleetway bid. I have not been convinced that this view of the re-evaluation is patently unreasonable.

(f) Departmental Bias: Drafting Second Handbook with Knowledge of Fleetway Bid

On the final ground of judicial review, Siemens alleged that the Department's legal counsel reviewed the Fleetway proposal before the evaluation criteria had been developed by the re-evaluation team. Given that legal counsel were an integral part of the re-evaluation team, Siemens submitted that there must be, at the very least, an appearance of bias or lack of fairness in the re-evaluation process. The CITT found the Siemens allegation to be groundless and concluded that the re-evaluation handbook had been prepared before the re-evaluators became aware of the contents of any of the proposals submitted. Nothing in Siemens' submission leads me to believe that the CITT's conclusion in respect of this ground was clearly irrational.

Disposition

I would dismiss the application for judicial review. The respondent Department shall have its costs. The respondents MIL and Fleetway, together, shall be entitled to one set of costs. There will be no costs for or against the intervenor, CITT.

                                                                                                                                                   "B. Malone"                                 

                                                                                                                                                                  J.A.

"I agree

     A.M. Linden J.A."

"I agree

     Julius A. Isaac J.A."