Date:
20121205
Docket: A-45-12
A-46-12
Citation:
2012 FCA 318
CORAM: BLAIS
C.J.
EVANS
J.A.
GAUTHIER
J.A.
BETWEEN:
ALMON
EQUIPMENT LIMITED
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered
from the Bench at Ottawa, Ontario, on December 5, 2012)
EVANS
J.A.
[1]
Almon
Equipment Ltd. bid in response to two Requests for Proposals (RFP) issued in
early August 2011 by Public Works and Government Services Canada (PWGSC) for
the supply of services at Canadian Forces Base Trenton (CFB Trenton). One RFP
concerned the anti-icing and de-icing of aircraft, and snow clearing (the
de-icing contract). The other concerned the recovery of glycol, the chemical
used in de-icing.
[2]
On
August 19, 2011, Almon complained about the terms of the RFPs to the Canadian
International Trade Tribunal (CITT), pursuant to subsection 30.11(1) of the International
Trade Tribunal Act, R.S.C. 1985, (4th Supp.), c. 47. PWGSC subsequently
advised Almon that it had not been awarded either contract because it did not
comply with requirements in the RFPs.
[3]
The
question to be decided by the CITT in respect of the glycol recovery RFP was
whether its requirements breached the applicable trade agreements by exceeding
what was necessary to ensure that the contract was fulfilled. The question to
be decided about the de-icing RFP was whether its terms breached Article 504(3)
of the Agreement on Internal Trade, (1995) 129 Can. Gaz. I, 1323
(AIT), which prohibits bias for or against suppliers of services. Almon also
alleged a breach of Article 506(5) of the AIT because insufficient time was
allowed for the preparation of bids, including the acquisition of specified
equipment.
[4]
In
decisions issued in January 2012, the CITT rejected Almon’s complaints. It
noted that, as the purchaser of services, PWGSC had the right to define its
procurement requirements in light of its legitimate operational needs. It held
that the circumstances surrounding the services in question justified the
stringent requirements in the RFPs relating to the experience of the personnel
to be used by the contractor. The CITT noted in respect of the de-icing RFP
that aircraft operate from CFB Trenton in bad weather and, in respect of the
glycol recovery RFP, that the Base occupied an environmentally sensitive
location near the Bay of Quinte.
[5]
The
CITT had not accepted for further inquiry Almon’s complaint that a truck with a
75-foot boom was not necessary for de-icing because it had used a shorter boom
when it held the contract a few years earlier. The CITT held that the appropriateness
of terms in an RFP cannot be determined by those in previous RFPs.
[6]
The
CITT found no sufficient evidence that the terms of the RFPs were
discriminatory, impossible to meet, or otherwise unreasonable. In addition, it
rejected Almon’s argument that, in the circumstances, bidders did not have
sufficient time to prepare bids.
[7]
Almon
has made two applications for judicial review requesting the Court to set aside
these decisions of the CITT. Court File No. A-45-12 relates to the CITT’s
decision in the de-icing RFP. Court File No. A-46-12 relates to the CITT’s
decision in the glycol recovery RFP. The Court heard the applications together.
These reasons cover both applications and copies will be inserted into each
file.
[8]
The
CITT fully set out the relevant facts in its reasons for the decisions. It is
common ground that the decisions in this case are subject to review for
unreasonableness because they involve applications of the law to the facts.
[9]
Almon
has not satisfied us that either decision is unreasonable. For the most
part, it merely repeated the arguments rejected by the CITT. The CITT’s
thorough reasons provide sufficient justification for the decisions, which fall
within the range of possible outcomes reasonably open to it on the facts and
the applicable law.
[10]
We
note, in particular, the absence of specific evidence in the affidavit filed on
behalf of Almon by Mr Ally. For example, he adduced no specific evidence to
prove that trucks with 75-foot booms could not readily be obtained, or that
Almon asked PWGSC for additional time to attempt to acquire one.
[11]
We
would only add that we agree with the CITT that the fact that one bidder is
better able than another to meet the specifications of an RFP does not in
itself necessarily mean that the requirements of the RFP are biased in favour
of that bidder. We also agree that the purchaser of goods or services has the
right to determine the requirements needed for bidders to meet its legitimate
operational requirements, subject to the limits imposed by the applicable trade
agreements to ensure fair competition in public procurement.
[12]
For
these reasons, the applications for judicial review will be dismissed with
costs.
“John
M. Evans”
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-45-12
and A-46-12
STYLE OF CAUSE: ALMON
EQUIPMENT LTD v AGC
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 5, 2012
REASONS FOR JUDGMENT
OF THE COURT BY: BLAIS C.J., EVANS, GAUTHIER JJ.A.
DELIVERED FROM THE BENCH
BY: EVANS J.A.
APPEARANCES:
|
Michel W. Drapeau
Marc-Aurele
Racicot
Joshua
M. Juneau
|
FOR
THE APPLICANT
|
|
Helene Robertson
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Michel Drapeau Law Office
Ottawa, Ontario
|
FOR THE APPLICANT
|
|
William F. Pentney
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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