Date:
20090123
Docket: A-455-07
Citation: 2009 FCA 18
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
JEAN-MARC BERGEVIN
Applicant
and
CANADIAN INTERNATIONAL
DEVELOPMENT AGENCY
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issue
[1]
The
purpose of this application for judicial review is to determine conclusively
whether the Canadian International Development Agency (CIDA) breached
clause 2.3 of the Request for a Summary Proposal (RFSP) filed in relation
to a development project with Morocco.
[2]
The
application challenges the Canadian International Trade Tribunal's interpretation
of this provision.
This issue is an important one, since the provision
aims to prevent favouritism in the procurement process and promote the
transparency of public bodies issuing contracts.
[3]
I
reproduce the clause as it appears in the Tribunal's reasons for decision,
at paragraph 28:
Where this
RFSP relates to the implementation of the first or only phase of a project, the
Consultant, including EACH member of a consortium, joint venture or
association, and all personnel and subcontractors must not have been involved,
individually, jointly, or severally, in the planning (i.e. conceptualization,
feasibility studies, specifications or design) of this project, nor have been
assisted in the preparation of the proposal by any party who has been involved
in the planning of this project.
Where this
RFSP relates to the evaluation, monitoring or audit of a
project, the Consultant, including EACH member of the consortium, joint venture
or association, and all personnel and subcontractors must not have been involved,
jointly or severally, in the implementation of this project, nor have
been assisted in the preparation of the proposal by any party who has been
involved in the implementation of the project to be evaluated, monitored
or audited.
[Emphasis
added]
[4]
I
hasten to add that the applicant, who is representing himself, has raised the
following three additional issues in support of his application for judicial
review: the unreasonableness of the remedies recommended by the Tribunal, the
invalidation of clause 2.3 of the RFSP and the inadequacy of the public
version of the proposal of Stéphane Courtemanche, the bidder who obtained the
contract at issue.
I will summarily dispose of these last three issues
below. For the time being, it is important to
succinctly summarize the facts giving rise to the dispute by limiting myself to
those that are relevant to the issues raised and necessary for a sound
understanding of these reasons.
Factual background
[5]
CIDA
is involved in implementing the Local Governance Morocco Project (LGM) and
describes the purpose as follows:
[translation]
The purpose of the project is to build
local capacities to support inclusive, optimal, and sustainable local
development in the target regions (Tangiers/Tétouan and Al Hoceima/Taza/Taounate),
and to equip Morocco to
eventually generalize innovative management approaches to all of its local
communities.
[Respondent's Record, volume 1, page 357]
[6]
The
execution this project required the planning and performance of a contract with
the Kingdom of Morocco. It
involved the selection of a Canadian support agency (CSA) to implement the
project and a monitor/advisor in local governance for the project to perform
the monitoring, audit and evaluation thereof. Wherever
the duties described above were not carried out by CIDA, they were assigned by
contracts submitted to the procurement process.
[7]
The RFSP
containing the disputed clause 2.3 was published on October 10, 2006, through the Canadian
Government Electronic Tendering Service. The purpose of the RFSP was to obtain
the services of a consultant acting as a monitor/advisor in local governance
for the LGM project: ibid., at page 213. The applicant
objects to the process used and the selection made for the reasons below. I
would also add that the value of the contract awarded was estimated at
$465,000, excluding GST, and the anticipated term of the contract was five
years.
[8]
In early
2006, CIDA began efforts to select the CSA for the project. On January 19, it
issued a solicitation to that end. The following month, Mr. Courtemanche
was hired to join the evaluation team responsible for selecting the CSA.
Mr. Courtemanche was hired through a consulting and professional services
contract.
[9]
At the end
of this initial process, a consortium (CRC SOGEMA/COWATER International Inc.)
was selected as CSA. The consortium was awarded a five-year contract valued at
CAD$13,197,000. This contract is currently being executed.
[10]
When the
RFSP followed in October for the selection of the CSA progress monitor/advisor
in governance, Mr. Courtemanche, the applicant and five other consultants
each submitted a proposal to obtain the contract. At the end of the selection
process, the applicant came in third, but the contract was awarded to
Mr. Courtemanche, who would then be called upon to monitor the project’s
execution and implementation by the CSA that he had helped to select as a
member of the evaluation team.
[11]
Faced with
that fact, the applicant filed two complaints with the Tribunal, on a number of
grounds. The first complaint concerned the non-compliance with clause 2.3
of the RFSP and Mr. Courtemanche’s lack of competency in local governance.
The second complaint, based on the information obtained after the first
complaint was filed, accused CIDA of having breached the contract award rules
with regard to the detailed proposal evaluation grid, and of having not
provided explanations supporting the scores the bidders received.
[12]
The
Tribunal agreed with the applicant. At paragraph 76 of its reasons for decision,
the Tribunal found that CIDA had lacked transparency and, through its conduct,
had violated some of its own provisions, prejudiced the applicant and tarnished
the procurement process used at CIDA, although it did not question CIDA’s good
faith. As a result, it recommended several remedies including, as an overview,
re-evaluating all technical proposals that had received a score of
60 percent or higher in the first evaluation, eliminating requirements 10
and 11 of the RFSP during the re-evaluation, modifying the factors to be taken
into consideration or disregarded in relation to requirements 4 and 7 of the
RFSP, cancelling Mr. Courtemanche’s contract and awarding it to the
applicant if he were to score the most points or, alternatively, compensating
the applicant if CIDA decided not to cancel the contract with
Mr. Courtemanche.
[13]
Yet, the
Tribunal did not agree with the interpretation of clause 2.3 submitted by
the applicant. I will now address that issue.
Analysis of the Tribunal’s
decision
a) Interpretation
of clause 2.3 of the RFSP
Where this RFSP relates
to the implementation of the first or only phase of a project, the Consultant,
including EACH member of a consortium, joint venture or association, and all
personnel and subcontractors must not have been involved, individually,
jointly, or severally, in the planning (i.e. conceptualization, feasibility
studies, specifications or design) of this project, nor have been assisted in
the preparation of the proposal by any party who has been involved in the
planning of this project.
Where this RFSP relates
to the evaluation, monitoring or audit of a project, the
Consultant, including EACH member of the consortium, joint venture or
association, and all personnel and subcontractors must not have been involved,
jointly or severally, in the implementation of this project, nor have
been assisted in the preparation of the proposal by any party who has been
involved in the implementation of the project to be evaluated, monitored
or audited.
[Emphasis
added]
[15]
In the
applicant’s view, the CSA selection was part of the implementation phase of the
project. Conversely, CIDA submitted that the CSA selection was part of the
planning of the project.
[16]
The
Tribunal disagreed with the allegations of each party. It found instead that
the selection process for the CSA was a linking step, a kind of “no man’s land”
between the planning phase and the implementation phase. The Tribunal stated
the following at paragraph 34 in its reasons for decision:
34. The Tribunal has
closely examined the scope of clause 2.3 of the RFSP and the arguments
submitted by the parties. The Tribunal is of the view that it is very
difficult, if not impossible, to place the step of choosing the CSA into one of
these two closed categories. The selection process for the CSA is a step that links
the planning phase to the implementation phase. In other words, at the point of
choosing the CSA, the project has usually already been planned and its
implementation has not yet begun. In the Tribunal’s view, there has
therefore been no breach of clause 2.3 as worded in the RFSP.
[Emphasis
added]
[17]
With
respect, I believe that the Tribunal erred in its interpretation of
clause 2.3. This error is specifically with respect to the principles and
purpose behind clause 2.3 and the exhibits on record.
[18]
The
planning phase of a project involves defining the parameters and stipulating
the instruments or mechanisms required for its implementation. See Mitchell L.
Springer, A Concise Guide to Program Management: Fundamental Concepts and
Issues, West Lafayette, IN, Purdue University Press, 2005, at page 55,
where the author writes:
The planning function involves the process of
identifying the work to be performed, determining which of the requirements of
the job are required by the customer (stated requirements) and which are
required by internal processes or required in support of the customer’s stated
requirements (derived requirements). The basic premise is to identify what is
required to satisfy the program’s overall goal and objectives.
The implementation phase is characterized by putting the
plan into action and meeting its objectives. Under the heading “Execution and
Control” at page 14 in his book entitled Fundamentals of Project Management,
WorkSmart Series, 3rd ed., New York: Amacom Books, 2007, author
James P. Lewis notes that the execution phase begins when the plan has been
made and approved and that the monitoring of a project is part of the execution
or implementation phase. He writes:
Execution and Control
Once the plan has been
developed and approved, the team can begin work. This is the execution phase,
but it also includes control, because while the plan is being implemented,
progress is monitored to ensure that the work is progressing according to the
plan.
[Emphasis added]
[19]
In the
case at bar, the plan was to select a CSA and hire a monitor/advisor for
monitoring and audit purposes. This element of the planning came into being
during the implementation step, through the issuing of an RFSP to select the
CSA and the formation of a bid evaluation team.
[20]
Since
selecting a CSA for the implementation of the project was a planned activity, I
agree with the applicant that contrary to the Tribunal’s ruling, this activity
could not take place outside the project’s two phases of planning and
implementation.
[21]
Clause 2.3
of the RFSP was aimed at avoiding situations of actual or apparent conflicts of
interest, since such conflicts could cast a shadow over the quality and
credibility of the project’s monitoring, audit and evaluation operations. The
clause was also aimed at ensuring fairness in the procurement process by
preventing any bidder from having an undue advantage over the others as a
result of the bidder’s involvement in the implementation phase and the
confidential or beneficial information he or she could have obtained at that
time. In short, clause 2.3 was aimed specifically at situations such as
the one that occurred in this case.
[22]
In
interpreting clause 2.3 in a literal and narrow way, the Tribunal created
a vacuum that allows and favours a repeat of what happened, to the detriment
not only of the bidders but also of the procurement process and mechanism. Even
disregarding principle and drawing inspiration from the purpose sought, it was
not only possible and desirable, but also necessary to categorize the selection
of the CSA, and, consequently, the work of the bid evaluation team, as part of
the project implementation phase.
[23]
In fact,
the CSA selection process was the first step in the project implementation
phase. The prior planning phase, then completed, stipulated that a person or
group would be hired to implement the project. But the pre-planned selection
process was part of the project implementation stage, and it was during that
stage that it would be carried out. I also refer to the following exhibits on
record to support this conclusion.
[24]
The public
version of the Government Institution Report (GIR) filed with the Tribunal
described the respective roles and duties of CIDA and the CSA for the LGM
project. Paragraph 12 of the Report indicates that the CSA is responsible for
implementing the project (ibid., at page 186):
[translation]
12. The
CSA must implement the LGM project and manage all activities funded by the
project. To this end, the CSA must produce an implementation plan, prepare an
annual work plan, participate in the committees which bring together the
various participants in this project, provide technical support to the Moroccan
partners and produce reports;
The selection of the CSA that will be responsible for
providing the services described in the contract and required by the LGM
project therefore occurs during the implementation step of the project. In my
understanding, this confirms the statement in paragraph 52 of the GIR: [translation] “In other words, CIDA is
in charge of planning and the CSA is in charge of implementing the LGM
project”.
[25]
In
conclusion on this first ground of attack, in my opinion, the Tribunal erred in
its interpretation of clause 2.3 in that, contrary to its findings, this
clause was breached when the monitor/advisor contract was awarded to
Mr. Courtemanche.
[26]
This leads
me to discuss the applicant’s second complaint.
b) Unreasonableness of the Tribunal’s recommended
remedies
[28]
Section 30.15
of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th
Supp.), c. 47 (Act) gives the Tribunal broad discretion in terms of the
remedies it may grant, taking numerous factors into account, including the
stage and extent to which the contract was performed:
|
Findings
and recommendations
30.15 (1) Where the
Tribunal decides to conduct an inquiry, it shall, within the prescribed
period after the complaint is filed, provide the complainant, the relevant
government institution and any other party that the Tribunal considers to be
an interested party with the Tribunal’s findings and recommendations, if any.
Remedies
(2)
Subject to the regulations, where the Tribunal determines that a complaint is
valid, it may recommend such remedy as it considers appropriate, including
any one or more of the following remedies:
(a)
that a new solicitation for the designated contract be issued;
(b)
that the bids be re-evaluated;
(c)
that the designated contract be terminated;
(d)
that the designated contract be awarded to the complainant; or
(e)
that the complainant be compensated by an amount specified by the Tribunal.
Criteria
to be applied
(3)
The Tribunal shall, in recommending an appropriate remedy under subsection
(2), consider all the circumstances relevant to the procurement of the goods
or services to which the designated contract relates, including
(a)
the seriousness of any deficiency in the procurement process found by the Tribunal;
(b)
the degree to which the complainant and all other interested parties were
prejudiced;
(c)
the degree to which the integrity and efficiency of the competitive
procurement system was prejudiced;
(d)
whether the parties acted in good faith; and
(e)
the extent to which the contract was performed.
Cost
of preparing response
(4)
Subject to the regulations, the Tribunal may award to the complainant the
reasonable costs incurred by the complainant in preparing a response to the
solicitation for the designated contract.
|
Conclusions
et recommandations
30.15 (1) Lorsqu’il a décidé d’enquêter, le
Tribunal, dans le délai réglementaire suivant le dépôt de la plainte, remet
au plaignant, à l’institution fédérale concernée et à toute autre partie
qu’il juge être intéressée ses conclusions et ses éventuelles
recommandations.
Mesures
correctives
(2)
Sous réserve des règlements, le Tribunal peut, lorsqu’il donne gain de cause
au plaignant, recommander que soient prises des mesures correctives,
notamment les suivantes :
a) un nouvel appel d’offres;
b) la réévaluation des soumissions présentées;
c) la résiliation du contrat spécifique;
d) l’attribution du contrat spécifique au
plaignant;
e) le versement d’une indemnité, dont il
précise le montant, au plaignant.
Critères
(3)
Dans sa décision, le Tribunal tient compte de tous les facteurs qui
interviennent dans le marché de fournitures ou services visé par le contrat
spécifique, notamment des suivants :
a) la gravité des irrégularités qu’il a constatées
dans la procédure des marchés publics;
b) l’ampleur du préjudice causé au plaignant ou
à tout autre intéressé;
c) l’ampleur du préjudice causé à l’intégrité
ou à l’efficacité du mécanisme d’adjudication;
d) la bonne foi des parties;
e) le degré d’exécution du contrat.
Indemnité
(4)
Le Tribunal peut, sous réserve des règlements, accorder au plaignant le
remboursement des frais entraînés par la préparation d’une réponse à l’appel
d’offres.
|
[29]
This Court
has recognized that the termination of a contract is not a remedy when a
contract is improperly awarded to a non-compliant bidder: see Seprotech
Systems Inc. v. Peacock Inc., 2003 FCA 71. The Tribunal must reconcile the
injured bidder’s interest in being adequately compensated for the prejudice suffered
with the public interest in having the contract performed as soon as possible
and, where possible, without interruption, unless warranted by, inter alia,
the other factors listed at subsection 30.15(3) of the Act.
[30]
The
Tribunal’s only power in terms of remedies is to make recommendations to the
federal institution. While the institution must implement the recommendations
to the greatest extent possible, it may nevertheless not implement them fully:
see subsection 30.15(1) and section 30.18 of the Act.
[31]
In this
case, the applicant has not established that the Tribunal, on the basis of its
findings, exercised its discretion in way that was abusive, unreasonable or
contrary to the Act. The fact is that the Tribunal applied the criteria
stipulated at section 30.15 of the Act. Absent error by the Tribunal in
exercising its discretion, nothing warrants this Court’s intervention, let
alone its exercising its discretion and then substituting its findings for
those of the Tribunal.
[32]
However,
following our conclusion that clause 2.3 was breached and, accordingly,
that Mr. Courtemanche’s proposal was inadmissible, the issue of an
appropriate remedy in this case arises.
[33]
As we will
recall, the applicant had ranked third, and the Tribunal had ordered that the
proposals be re-evaluated. The Tribunal had recommended that the contract
awarded to Mr. Courtemanche be cancelled and awarded to the applicant, if
he were now to score the most points. The Tribunal had also proposed that the
applicant be compensated if CIDA decided not to cancel Mr. Courtemanche’s
contract.
[34]
This Court
was informed at the hearing that the proposal re-evaluation had taken place in
accordance with the Tribunal’s decision and that Mr. Courtemanche had once
again ranked first. We are unaware of the applicant’s new ranking. However, we
do know that Mr. Courtemanche’s proposal was inadmissible and should have
been set aside from the outset so that it could not be submitted for
re-evaluation, as it should not have been.
[35]
This Court
is also aware, as was the Tribunal, that the contract is currently being
executed, as it has been for a rather significant period of time to date, and
that substituting the monitor/advisor for the project while it is in progress
may prove extremely problematic. The only reasonable remedy in the
circumstances may perhaps be to adequately compensate the applicant.
[36]
Considering
the little, if not the complete lack of, information available to us following
the re-evaluation that was done, I believe that the fairest and most equitable
way of deciding the question would be to return the file to the Tribunal so
that it may propose an appropriate remedy for the applicant that takes into
account the fact that Mr. Courtemanche’s proposal was inadmissible, the
applicant’s results from the proposal re-evaluation and the advisability of
cancelling Mr. Courtemanche’s contract given how far the work has
progressed.
c) Invalidation of clause 2.3 of the RFSP
[37]
The
applicant submits that the Tribunal did not properly understand the arguments
he made on conflicts of interest. On that basis, he requests that
clause 2.3 be invalidated.
[38]
In light
of my conclusion regarding clause 2.3, it is clear that were it to be
accepted, the applicant’s request for invalidation would be of consequence to
him. However, it would also be of consequence to the other bidders and to the
guarantees regarding conflicts of interest and fairness in the procurement
process. Removing paragraph two of clause 2.3 would leave the door wide
open to the type of abuse that it is specifically intended to prevent.
[39]
Beyond
these predictable and undesirable consequences, the applicant has not provided
any legal basis for this Court to invalidate the second paragraph of
clause 2.3.
d) Inadequacy of the public version of
Mr. Stéphane Courtemanche’s proposal
[40]
The
applicant seeks declaratory relief from this Court regarding the legal
standards governing the filing of documents with the Tribunal. Essentially, he
submits that he could have been more persuasive in his arguments to the
Tribunal if he had had greater and better access to the relevant information.
He states as evidence that he obtained, according to him, a more complete
public version of Mr. Courtemanche’s proposal through the Access to
Information Act than the one he obtained through the Tribunal, which, he
says, was the version submitted to Mr. Courtemanche for his approval by a
counsel for CIDA before it was submitted.
[41]
Sections
43 to 49 of the Act govern disclosure of information to the parties.
Section 46 allows some information to be kept confidential. Therefore,
where necessary, an edited version of a document is submitted to the Tribunal.
[42]
In the
case at bar, the Tribunal found that the public version of
Mr. Courtemanche’s technical proposal complied with section 46 of the
Act. The Tribunal rightly emphasized the difficulty in terms of access to
confidential information caused by the fact that the applicant was representing
himself. The Tribunal stated that, by that very fact, the applicant was
restricting his access to the public information on record: see Respondent’s
Record, volume 2, pages 818 and 819, the Tribunal’s response to the applicant’s
complaint regarding this issue.
[43]
By virtue
of the fact that the declaratory relief claimed by the applicant does not
concern this file but, rather, future eventualities, I believe that this Court
is better advised not to speculate on those possibilities and to wait until it
hears a concrete case requiring an analysis and revision of the rules regarding
disclosure of information.
Conclusion
[44]
For these
reasons, I would allow the application for judicial review and I would declare
that clause 2.3 of the Request for Summary Proposals SEL: 2007-A-032436-1
was breached and that Mr. Courtemanche’s proposal was inadmissible. I
would return the file to the Tribunal so that it may take these reasons into
account in exercising its jurisdiction to grant the applicant an appropriate
remedy in the circumstances.
[45]
I would
grant the applicant the amount of $1500, payable by the respondent, for disbursements
in his application for judicial review.
“Gilles
Létourneau”
“I
agree.
Marc Nadon J.A.”
“I
agree.
J.D.
Denis Pelletier J.A.”
Certified
true translation
Sarah
Burns
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