Date: 20100720
Dockets: A-298-09
A-299-09
Citation: 2010 FCA 193
CORAM: NADON
J.A.
TRUDEL
J.A.
STRATAS
J.A.
Docket: A-298-09
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ALMON EQUIPMENT LIMITED
Respondent
Docket: A-299-09
BETWEEN:
ALMON EQUIPMENT LIMITED
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
Before
this Court are two applications for judicial review of a decision of the
Canadian International Trade Tribunal. The Tribunal decided to uphold, in part,
a complaint brought by Almon Equipment Limited (“Almon”) against a procurement
process supervised by the federal Department of Public Works and Government
Services (“Public Works”).
[2]
The
procurement process concerned aircraft de-icing services. It was a significant
procurement, with implications not only for the bidders and the federal
government, but also for the Canadian taxpayer: contracts worth over $10
million ultimately were awarded.
[3]
The
two applications for judicial review before this Court assert two fundamental
defects against the Tribunal’s decision. The parties raised other issues that
this Court need not address, given my proposed disposition of these
applications. The applications are:
(1) Almon’s
application for judicial review (A-299-09). This focuses on the Tribunal’s
exercise of remedial decision.
(2) Public
Works’ application for judicial review (A-298-09). This focuses on the
Tribunal’s findings of fact.
These reasons for judgment concern both applications
for judicial review.
[4]
For
reasons set out below, the standard of review in both applications for judicial
review is the deferential standard of reasonableness. Nevertheless, in my view,
the Tribunal committed reviewable error in its remedial discretion and in
certain findings of fact, thereby reaching a result outside of the range of
possible, acceptable outcomes open to it. Therefore, I would grant both applications
for judicial review, quash the Tribunal’s decision and remit the matter back to
the Tribunal for redetermination.
A. Background
[5]
At
Canadian Forces Base Trenton, ice and snow must be removed from aircraft so
they can fly safely. This “de-icing” is done by applying glycol to the air
surfaces of the aircraft. Some glycol ends up on the ground; it must be
collected and satisfactorily managed.
[6]
In
2008, the federal Department of Public Works and Government Services began a
procurement process for the de-icing services and the glycol collection
services. It invited tenders. Almon, among others, responded.
[7]
Following
evaluations and assessments, two of Almon’s competitors succeeded. One won a
contract for the de-icing services. Another won a contract for the glycol collection
services. Almon was wholly unsuccessful.
[8]
Almon
complained to the Tribunal, alleging unfairness and deficiencies in the
procurement process. The Tribunal held an inquiry into the complaint under
section 30.11 of the Canadian International Trade Tribunal Act, R.S.C.
1985 (4th Supp.), c. 47 (the “Act”).
[9]
The
Tribunal accepted Almon’s complaint in part and ordered that Public Works
compensate Almon in part. Its reasons for doing so will be examined in more
detail below.
B. The Tribunal’s regulatory
jurisdiction over procurement issues
[10]
Sections
30.1 to 30.19 of the Act and the Canadian International Trade Tribunal
Procurement Inquiry Regulations, S.O.R./93-602 (the “Regulations”) set out
a regulatory regime concerning federal government procurement.
[11]
The
Tribunal has oversight jurisdiction under this regulatory regime. In response
to a complaint, it can conduct an inquiry and recommend remedies. The process
leading up to an inquiry, and the conduct of the inquiry itself, is as follows:
(a) Complaints
(sections 30.11 and 30.12 of the Act). A potential supplier may file a
compliant with the Tribunal. The complaint must be regarding “any aspect of
the procurement process” that relates to “a contract for the supply of goods or
services that has been or is proposed to be awarded by a government
institution” or a contract designated in the regulations. “Interested parties”
are notified of the complaint.
(b) Screening
(subsection 30.13(5) of the Act). The Tribunal may decide not to conduct an
inquiry into the complaint.
(c) Inquiry
(subsections 30.13(1), 30.13(2) and 30.14(1) of the Act). If the Tribunal
decides to conduct an inquiry, it gives notice to the complainant, the relevant
government institution and interested parties. They have an opportunity to make
representations. The Act does not require the Tribunal to hold a hearing as
part of its inquiry, but can do so. The Tribunal’s inquiry is limited to the
subject-matter of the complaint.
[12]
At
the end of the inquiry, under subsection 30.14(2) of the Act, the Tribunal must
determine whether the complaint is valid, based on particular grounds:
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30.14. (2) At the conclusion of an inquiry, the Tribunal shall
determine whether the complaint is valid on the basis of whether the procedures
and other requirements prescribed in respect of the designated contract, or
the class of contracts to which it belongs, have been or are being observed.
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30.14. (2) Le Tribunal détermine la
validité de la plainte en fonction des critères et procédures établis par
règlement pour le contrat spécifique ou la catégorie dont il fait partie.
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[13]
Section
11 of the Regulations empowers the Tribunal to assess the complaint based on
other grounds:
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11. If the Tribunal conducts an
inquiry into a complaint, it shall determine whether the procurement was
conducted in accordance with the requirements set out in whichever of NAFTA,
the Agreement on Internal Trade, the Agreement on Government Procurement, the
CCFTA or the CPFTA applies.
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11. Lorsque le Tribunal enquête sur
une plainte, il décide si la procédure du marché public a été suivie
conformément aux exigences de l’ALÉNA, de l’Accord sur le commerce intérieur,
de l’Accord sur les marchés publics, de l’ALÉCC ou de l’ALÉCP, selon le cas.
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[14]
In
this case, the Agreement on Internal Trade is the relevant agreement. Article
100 provides that one of the purposes of the Agreement on Internal trade is “to establish an open, efficient and stable domestic market.” Article 506(6) of
the Agreement is the provision that is most relevant to this case. The
relevant portion of article 506(6) is as follows:
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506. (6)…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 the criteria.
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506. (6) […] Les
documents d'appel d'offres doivent indiquer clairement les conditions du
marché public, les critères qui seront appliqués dans l'évaluation des
soumissions et les méthodes de pondération et d'évaluation des critères.
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[15]
At
the conclusion of its inquiry, the Tribunal is obligated to issue findings and
recommendations: subsection 30.15(1) of the Act. Often administrative tribunals
are required to give reasons as part of the common law obligation to afford
parties with procedural fairness: Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817; Vancouver International Airport Authority v.
Public Service Alliance of Canada, 2010 FCA 158. But here,
Parliament considered the interests at stake to be significant enough to
eliminate all doubt and expressly impose a requirement under subsection
30.15(1) to give reasons.
[16]
Where
the Tribunal finds the complaint to be valid, it may recommend remedies.
Subsections 30.15(2) and 30.15(3) govern these remedies.
[17]
Subsection
30.15(2) of the Act is a list of remedies that the Tribunal may award:
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30.15. (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.
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30.15. (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.
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[18]
Subsection
30.15(3) is a mandatory recipe that the Tribunal must follow when considering
its recommendation on remedies:
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30.15. (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.
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30.15. (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.
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[19]
In
addition to the above remedies, the Tribunal also may provide “comments and
observations on any matter…in connection with the procurement process” to a
government institution: section 30.19 of the Act.
[20]
After
receiving the Tribunal’s recommendation under subsection 30.15(3) of the Act, the
affected government institution shall, subject to the Regulations, “implement
the recommendations to the greatest extent possible” and report on its
progress. If it “does not intend to implement them fully,” it must set out
“the reasons for not doing so”: section 30.18 of the Act.
C. The purposes of
this regulatory regime
[21]
The
purposes of this regulatory regime are relevant to this Court’s consideration
of what the Tribunal has done in this case. The purposes can affect the
interpretation of the relevant provisions, here subsections 30.15(2) and
30.15(3), that the Tribunal must follow: Bell ExpressVu Limited
Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 at paragraph 26. They can also
affect this Court’s overall assessment of whether the Tribunal has reached a
result outside of the range of possible, acceptable outcomes open to it. A
tribunal that makes a decision contrary to the purposes of the regulatory
regime is more likely to be found to be outside of the range of possible,
acceptable outcomes open to it: Montréal (City) v.
Montreal Port Authority, 2010 SCC 14 at paragraphs
42 to 47.
[22]
The
purposes of this regulatory regime can be deduced from the substantive content
of the provisions set out above. Under this regime, in a federal government
procurement, the government must announce its requirements, criteria and
evaluation methods in its request for proposals and associated documents
(subject to possible appropriate amendment later) and must adhere to those
requirements, criteria and evaluation methods when it receives and evaluates
proposals submitted to it. Overseeing this is the Tribunal, with its statutory
jurisdiction: if the Tribunal conducts an inquiry, it must examine the
government’s adherence to the requirements, criteria and evaluation methods the
government announced and the overall “integrity and efficiency of the competitive procurement
system.” As section 11 of the Regulations, above, makes clear, this all
takes place under the umbrella of the Agreement on Internal Trade which, in
article 100, aims at “establish[ing] an open, efficient and stable domestic
market.”
[23]
The
purposes of this regulatory regime, deduced from the above provisions, are as
follows:
(1) Fairness
to competitors in the procurement system. A fair procurement system that
applies one set of transparent rules to all bidders increases confidence in the
system, and encourages increased participation in competitions. This maximizes
the probability that the government will get good quality goods and services
that meet its needs, at minimum expense to the taxpayer. In short, fairness
gives taxpayers value for the taxes they pay.
(2) Ensuring
competition among bidders. When bidders are placed on a level playing field
and compete, it is more likely that government will get good quality goods and
services that meet its needs, at minimum expense to the taxpayer. Competition
also gives taxpayers value for the taxes they pay.
(3) Efficiency.
This speaks directly to the government getting good quality goods and services
at minimum expense. This also speaks to the need for a procurement system to
run in a timely, practical manner without causing unnecessary expense.
(4) Integrity.
A procurement process with integrity increases participants’ confidence in the
procurement system and enhance their participation in it. This increases the
probability that government will get good quality goods and services that meet
its needs, at minimum expense to the taxpayer. A procurement process with
integrity also gives taxpayers value for the taxes they pay.
These four purposes, and the overarching concept
of value for taxpayers, are essential aspects of good governance. Important as
they are, they must be at the front of the Tribunal’s mind when it finds facts,
evaluates their significance, interprets its legislation, applies that
legislation to the facts, and grants remedies.
D. The Tribunal’s
decision
[24]
Almon’s
complaint to the Tribunal triggered the Tribunal’s decision in this matter. It
contained seven grounds. The Tribunal accepted for inquiry only one main ground
of complaint: whether Public Works properly evaluated Almon’s proposal
concerning the two requirements, the de-icing requirement and the glycol collection
requirement. In this Court, the parties did not attack this screening decision
by the Tribunal.
[25]
Under
the procurement process in this case, a jury of three evaluators evaluated the
proposals that were submitted by assigning scores to them. What these three
evaluators did and the reasons for their scores were very much the focus of
argument before the Tribunal and also in this Court.
[26]
The
Tribunal found that it had to “first determine the reasons for which the
evaluators awarded Almon the scores that they did” (at paragraph 35). That was
a logical first step towards determining whether the evaluators followed the
criteria announced in Public Works’ request for proposals and associated
documents.
[27]
But
it is evident that the Tribunal was hampered in this task: a body of evidence
before it suggested that the evaluators’ record-keeping was less than desirable
and that there was a lack of clarity about how they carried out their
evaluations. Rather than viewing the evaluators’ questionable record-keeping
and procedures as being relevant to the integrity and efficiency of the
procurement process, the Tribunal viewed it as only relevant to the credibility
of some of the testimony of the evaluators. More will be said about this below.
In the view of the Tribunal (at paragraph 39), the evaluators’ behaviour was
not “credible behaviour on the part of three experienced professionals with
access to advice from a [Public Works] procurement specialist.” As a result,
the Tribunal refused to accept the evaluators’ testimony that their reasons for
scoring Almon’s proposal were expressed in various documents filed with the
Tribunal. Instead, the Tribunal ruled (at paragraph 44) that their reasons were
expressed only in comments they had made on “consensus scoring sheets.” Based
on what was written on the consensus scoring sheets, the Tribunal found that
the evaluators had assessed Almon’s proposal for the de-icing requirement and
its proposal for the glycol collection requirement improperly: they had used
criteria different from that set out in Public Works’ request for proposals and
associated documents (at paragraphs 54, 79 and 97).
[28]
On
the issue of remedy, the Tribunal denied Almon a remedy for the de-icing
services, but granted Almon a remedy for the glycol collection services. In
the case of the de-icing services, the Tribunal found that if the evaluators
applied the correct criteria to Almon’s proposal concerning the de-icing
services and if Almon had received full marks, it still would not have won the
competition. However, in the case of the glycol collection services, the
Tribunal found that if Almon’s proposal were evaluated properly, Almon might
have won the competition. Therefore, Almon was deprived of the opportunity to
be awarded the contract to supply glycol collection services and to earn
profits from it. The Tribunal estimated Almon’s chances of being awarded that
contract as one in three. It awarded Almon one-third of the profit it would
have earned had it been the successful bidder.
[29]
As
mentioned above, both parties have brought an application for judicial review
of the Tribunal’s decision, Almon challenging the Tribunal’s remedies decision
and Public Works challenging some of the Tribunal’s fact-finding.
[30]
Before
this Court, there was a preliminary issue regarding the admissibility of affidavits
filed by Almon in the two applications for judicial review. Those affidavits,
in part, contain some extraneous opinions and observations. Normally, only the
material that was before the tribunal being reviewed is admissible.
Accordingly, in our consideration of these applications, we have only had
regard to the material that was before the Tribunal, and nothing else.
E. The standard of
review
[31]
In
both of the applications before this Court, the parties agreed that the
standard of review of the Tribunal’s decision is reasonableness.
[32]
Almon
urged this Court to apply less deference than usual, owing to the circumstances
of this case. This is against the Supreme Court’s conclusion in Dunsmuir,
supra that there are only two standards of review, namely correctness
and reasonableness, rather than correctness and a reasonableness standard
embracing multiple degrees of deference: Mills v. Ontario
(Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436, 237
O.A.C. 71 at paragraphs 18 to 21; International
Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning
International Inc., 2008 ABCA 400, [2009] 2 W.W.R.
215 at paragraph 12; Guinn v.
Manitoba, 2009 MBCA 82, [2009] 9 W.W.R. 1 at paragraph 29.
[33]
For
the purposes of these applications, I shall simply apply the now classic
formulation of the reasonableness standard of review in Dunsmuir, supra
at paragraph 47: this Court can interfere only if the Tribunal’s decision falls
outside the range of possible, acceptable outcomes which are defensible in
respect of the facts and the law.
F. Analysis
(1) The
remedial issues
[34]
As
mentioned in paragraph 28, above, the Tribunal found that if the evaluators had
applied the correct criteria to Almon’s proposal concerning the de-icing
services and if Almon had received full marks, it still would not have won the
competition because of the other scores awarded by the evaluators. Inherent in
this is an assumption: the evaluators’ other scores could be relied upon
because the overall evaluation process was sound.
[35]
Almon
questions this. It pointed to a number of issues concerning the process by
which the three competitors’ proposals were evaluated and how the evaluators
conducted themselves, concentrating on paragraphs 35-44 of the Tribunal’s
reasons. It submits that the Tribunal should have found that the integrity of
the procurement process was fundamentally and detrimentally affected and should
have awarded it a different, more sweeping remedy. Before the Tribunal, Almon
had sought such remedies: among other things, the re-evaluation of the rival
proposals, the termination of the contracts that were awarded to its
competitors, and/or full compensation for not being awarded the contracts:
Tribunal reasons, at paragraph 3.
[36]
The
core of the Tribunal’s remedies reasoning under subsection 30.15(3) of the Act
is found in paragraphs 109-111:
[109] The
Tribunal considers that not evaluating a proposal in accordance with the
criteria provided in the RFP represents a serious deficiency in the procurement
process. Bidders need to rely on the prescribed evaluation criteria to
formulate their proposals. If they are not being informed of all the “rules of
the game”, bidders are unable to optimize their efforts to be the successful
bidder. The Tribunal believes that such a serious deficiency in evaluation
prejudices the integrity and efficiency of the competitive procurement system.
The Tribunal notes that there was no evidence that the technical evaluators
were not acting in good faith when they conducted their evaluations.
[110] Regarding
Requirement 1 [the de-icing services], the Tribunal considers that, due to the
relative scores of Almon’s and [a competitor’s] proposals, [the competitor]
would still have been awarded the contract even if Almon had been awarded full
marks regarding each of the criteria for which the Tribunal found that [Public
Works] had not conducted the evaluation properly. Therefore, because Almon has
not, in the Tribunal’s view, suffered prejudice as a result of [Public Works’]
actions in relation to Requirement 1, the Tribunal will not recommend a remedy
regarding Requirement 1.
[111] However,
regarding Requirement 2 [the glycol collection services], an appropriate
evaluation of the criteria for which the Tribunal has found that [Public Works]
did not conduct the evaluation properly could well have resulted in Almon being
the successful bidder. Accordingly, it is clear to the Tribunal that Almon was
deprived of the opportunity to be awarded the contract and to earn the
associated profit. Accordingly, it is clear to the Tribunal that Almon was
deprived of the opportunity to be awarded the contract and to earn the
associated profit. In these circumstances, given that the three bidders were
found to be compliant by [Public Works], the Tribunal estimates the opportunity
lost by Almon to be one in three and the prejudice that it suffered to be equal
to one third of the profit that it would have earned had it been the successful
bidder regarding Requirement 2.
[37]
In
my view, there are two reviewable errors arising from this passage:
(1) The
Tribunal considered whether the “integrity and efficiency of the competitive
procurement system” was affected (paragraph 30.15(3)(c) of the Act), as
it was obligated to do under Parliament’s mandatory recipe set out in
subsection 30.15(3) of the Act. But the Tribunal restricted its consideration
of this to whether the evaluators applied the proper criteria to Almon’s
proposal. The Tribunal did not consider whether the evaluators’ record-keeping
and procedures might have affected the “integrity and efficiency of the
competitive procurement system” more broadly.
(2) The
Tribunal awarded Almon a compensatory remedy. But it did not deal with any of
the other remedies sought by Almon, described in paragraph 35, above.
I shall deal with these in turn.
The first
reviewable error
[38]
As
mentioned in paragraph 18, above, subsection 30.15(3) of the Act is a mandatory
recipe that the Tribunal must follow when considering remedies. Put in the
language of the law of standard of review set out in Dunsmuir, supra,
the range of possible, acceptable outcomes open to the Tribunal includes only
those outcomes that are reached in accordance with this mandatory statutory
recipe.
[39]
Turning
to this statutory recipe, the word “shall” in subsection 30.15(3) requires the
Tribunal, when considering remedies, to consider all of the criteria in that
subsection. If the Tribunal fails to consider meaningfully or completely any of
these criteria, or if it artificially cuts down or limits any of these criteria,
it is disobeying Parliament’s requirement in the subsection and is not reaching
an outcome that can be viewed by a reviewing court as within the range of the
possible or acceptable: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748
at
paragraphs 39 and 41. Finally, as mentioned in paragraph 23, above, while
considering these criteria, the Tribunal must have the purposes of this
regulatory regime front of mind.
[40]
In
this case, the Tribunal did touch on all of the matters under subsection
30.15(3) of the Act, including the “integrity and efficiency of the competitive
procurement system” under paragraph 30.15(3)(c) of the Act. But it
inappropriately narrowed its examination under that paragraph, and in so doing,
failed to follow, meaningfully and completely, all parts of Parliament’s
mandatory recipe under subsection 30.15(3). Under paragraph 30.15(3)(c),
the Tribunal looked at whether the evaluators applied the proper criteria to
Almon’s proposal. But there was a larger live issue potentially casting into
doubt the “integrity and efficiency of the competitive procurement system”
under paragraph 30.15(3)(c). Before the Tribunal was an entire body of
evidence, which it largely accepted, showing that the evaluators’ record-keeping
and procedures during the evaluation were less than desirable, and perhaps
unacceptable.
[41]
This
body of evidence (at paragraphs 39 to 41) could certainly be capable of casting
into doubt the “integrity and efficiency of the competitive procurement system”
under paragraph 30.15(3)(c), especially when one recalls the important
purposes underlying this regulatory regime.
[42]
This
body of evidence shows that the three evaluators considering the competitors’ multi-million
dollar proposals did not write their own comments on their own copies of the
bids, nor did they make comments on separate sheets. Instead, they restricted
their comments to a very small space on the consensus scoring sheets, except
for one evaluator who scrawled additional observations on “sticky notes”
attached to one of the proposals. Before the Tribunal, the evaluators testified
that “the comments on the consensus scoring sheets were not a complete list of
the important factors taken into account in determining their scoring” (at
paragraph 39); yet, the evaluators could not point to a single note of their
own that would corroborate this.
[43]
In
this significant procurement, Public Works’ contracting officer did not give
the evaluators any instruction on how to use the “comments” column and did not
tell them to attach separate sheets, if necessary.
[44]
Finally,
the most basic characteristics of the evaluation process pursued by the
evaluators remain a mystery. For example, did the evaluators considering this
large procurement ever meet as a group of three to discuss the proposals and
their evaluation? The Tribunal reviewed the conflicting testimony of the
evaluators and could not make any finding on this elementary fact. In a general
observation about the procedures that the evaluators followed, the Tribunal
found a lack of “clear recollections [by the evaluators] of certain aspects of
the evaluation process” (at paragraph 41). Looking at this body of evidence
with the important purposes of this regulatory regime front of mind, this is a
rather mild statement; the Tribunal may not have appreciated that this body of
evidence could be significant to the broader “integrity and efficiency of the
competitive procurement system” under paragraph 30.15(3)(c) of the Act.
[45]
As
mentioned above at paragraph 27, the Tribunal used this body of evidence to
make credibility assessments about the evaluators’ testimony. But, in my view,
the Tribunal was obligated to analyze and use this body of evidence for another
purpose: to consider whether the evaluators’ modest record-keeping and the
unknowable nature of the procedures they followed fundamentally compromised the
“integrity and efficiency of the competitive procurement system” under
paragraph 30.15(3)(c) of the Act.
[46]
There
are three reasons for this conclusion.
[47]
First,
this issue was intimately related to Almon’s complaint that the evaluators used
improper criteria to evaluate Almon’s proposal for the de-icing services and
the glycol collection services. In order to consider this, the Tribunal had to
know what criteria the evaluators actually employed in their scoring, assess
whether the scores were credible and fair, and ensure that the evaluations were
conducted as a result of a process with substance and integrity. The body of
evidence, above, is relevant to all these matters.
[48]
Second,
evaluators and their evaluations of proposals are at the heart of the
procurement system. How the evaluators conduct themselves in their evaluation
process determines whether the system has integrity and whether the important
purposes of this regulatory regime are met. If evaluators can shield themselves
from scrutiny by refraining from making adequate records and by following
procedures that are later unknowable, the Tribunal cannot discharge its
oversight responsibilities. Parliament’s regulatory regime is then frustrated,
along with the purposes underlying it.
[49]
Third,
the Tribunal had to consider this body of evidence for a practical reason. The
Tribunal declined to give Almon any remedy for the treatment of Almon’s proposal
for de-icing services because, based on the scores, Almon could not have won
the competition. But what is the basis for saying that Almon could not have won
the competition? Does this body of evidence show that the evaluation process
was so deficient and the evaluators’ records were so inadequate that no weight
can be given to any of the evaluators’ scores? These were questions raised by
Almon that the Tribunal had to decide. But the Tribunal did not ask itself
these questions.
[50]
For
all these reasons, the Tribunal erred by failing to consider whether the
evaluators’ record-keeping and procedures might have affected the “integrity
and efficiency of the competitive procurement system” under paragraph 30.15(3)(c)
of the Act.
The second
reviewable error
[51]
As
acknowledged by the Tribunal in paragraph 3 of its reasons, Almon had sought a
broad range of remedies from the Tribunal. Among other things, it asked for the
re-evaluation of the rival proposals, the termination of the contracts that
were awarded to its competitors, and/or full compensation for not being awarded
the contracts. The Tribunal simply considered the remedy of compensation and
showed no awareness of the remedial options available to it under subsection
30.15(2) of the Act. In my view, the Tribunal did not follow subsection
30.15(2) of the Act, namely to assess what remedy out of the range of remedies
suggested by Parliament would be appropriate in all the circumstances.
[52]
This
error may have been prompted by its failure to appreciate the potential
significance of the body of evidence concerning the evaluators’ conduct. It may
have viewed the matter before it only in narrow terms, as a credibility issue
affecting the testimony of the evaluators, rather than as an issue that could
be relevant to the integrity of the procurement system, as I have explained
above. Viewing the matter in unduly narrow terms might have led the Tribunal to
choose a narrower remedy than it should have.
Conclusions on the
remedial issues
[53]
In
these applications for judicial review, this Court must ask whether the
Tribunal made a decision that is within the range of possible, acceptable
outcomes which are defensible. The range of possible and acceptable decisions
that was available to the Tribunal includes only those where the Tribunal has
made its decision in accordance with the statutory recipe set out by
Parliament. The elements of that recipe must be meaningfully and completely
considered. Having not considered how the evaluators’ conduct affected the
integrity of this procurement process, the Tribunal did not meaningfully and
completely consider subsection 30.15(3)(c) of the Act, as it was
required to do. Further, the Tribunal did not consider the range of remedies
available to it under subsection 30.15(2) of the Act, as it was required to do.
As a result, the Tribunal has not reached a decision that is within the range
of possible, acceptable outcomes which are defensible.
[54]
So
that there is no misunderstanding, I wish to emphasize that I have made no
findings concerning what I have described above as “the body of evidence.” That
is for the Tribunal to do if the matter is remitted back to it, as I shall
suggest. After the matter is remitted back to it, the Tribunal’s job will be to
receive whatever additional evidence it considers appropriate in light of these
reasons, examine all of the evidence including “the body of evidence”, make
appropriate findings from that evidence, and apply subsections 30.15(2) and
30.15(3) of the Act, all in accordance with the important purposes of this
regulatory regime.
[55]
For
the foregoing reasons, I would allow Almon’s judicial review and remit the
matter back to the Tribunal for redetermination.
[56]
Despite
this proposed disposition, it is still necessary to determine the judicial
review brought by Public Works. If the Tribunal’s fact-finding must be set
aside, as urged upon us by Public Works, the Tribunal will also have to address
that when it redetermines this matter. I turn to this issue now.
(2) The
tribunal’s fact-finding
[57]
Public
Works submits that the Tribunal’s fact-finding in paragraphs 35-44 of its
decision was unreasonable and vitiated the decision. In particular, Public
Works attacks the Tribunal’s factual finding that the evaluators’ reasons for
their assessment were found exclusively in the consensus scoring sheets. Public
Works submits that the Tribunal failed to take into account relevant evidence
to the contrary and had insufficient evidence to make the factual finding that
it did. In its view, the evaluators’ reasons for the scores they gave to the
proposals were evident in other documents. It says that when these reasons in
other documents are properly examined, the Tribunal could not conclude that the
evaluators employed improper criteria. The evaluators used the appropriate
criteria.
[58]
As
mentioned above, the Tribunal began by trying to determine “why the evaluators
awarded Almon the scores that they did” (at paragraph 35 of the Tribunal’s
reasons). The Tribunal observed (also at paragraph 35) that “there are several
potential sources of evidence on the record” concerning this:
(a) Item
1 - The comments of the evaluators on the consensus scoring sheets.
(b) Item
2 - The comments of the evaluators on the individual scoring sheets.
(c) Item
3 - The letter of January 28, 2009 from Public Works.
(d) Item 4
- The Government Institution Report.
(e) Item
5 - The testimony of the technical evaluators at the hearing held on April 22,
2009.
In particular, the Tribunal found (at paragraph
36) that Items 3, 4 and 5 “provide[d] more reasons for [Almon’s] point
deductions than are presented in the consensus scoring sheets [Item 1].”
[59]
However,
in the end, the Tribunal found that the reasons of the evaluators were present
only in Item 1. In its words, “it will consider the [evaluators’] scoring only
on the basis of the [consensus] scoring sheets [Item 1] and will not take into
account any additional reasons that are indicated by other sources of evidence”
(at paragraph 44).
[60]
The
other items were not relevant, according to the Tribunal. This was because the
Tribunal found (at paragraph 42) that it could not rely on the evaluators’
testimony “that there were significant reasons for their scoring that did not
appear on the consensus scoring sheets.” This was a key finding, central to its
overall decision in this case. The Tribunal offered two reasons for it:
(a) The
Tribunal found the evaluators’ testimony was not credible; and
(b) The
Tribunal found that the evaluators’ “recollection of the evaluation process was
less than clear in some respects.”
Essentially, these two reasons are really one:
lack of credibility on the part of the evaluators.
[61]
This,
however, is based on Tribunal findings that, without further explanation from
the Tribunal in its reasons, appear arbitrary:
a.
The
Tribunal found that it could not believe any of the evaluators’ statements that
they had reasons other than those recorded on the consensus scoring sheets.
But, elsewhere, the Tribunal found the opposite: it found (at paragraph 41)
that an evaluator made comments on a proposal elsewhere, on “sticky notes”
affixed to the proposal. This is an inconsistency that, without further
explanation from the Tribunal, appears to be arbitrary.
b.
The
Tribunal found (at paragraph 42) inconsistencies among the evaluators regarding
whether the three actually met together. This alone, without further
explanation from the Tribunal, does not automatically lead to the conclusion
that the evaluators are not worthy of belief on an entirely different aspect,
namely whether they relied on reasons other than those they set out on the
consensus scoring sheets. Without further explanation from the Tribunal, this
finding appears to be arbitrary.
[62]
On
judicial review, the Tribunal is entitled to deference in its fact-finding: Canadian
Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R.
793 at paragraph 85; Ross v. New Brunswick School Board, District No. 15,
[1996] 1 S.C.R. 825 at pages 849 and 852. The reviewing court is not to reweigh
evidence but instead must show deference: Canada (Minister of
Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, 2009
SCC 12 at paragraph 64; Dunsmuir, supra at paragraphs 47, 48 and
53. I accept that credibility determinations, in particular, are entitled to
deference: F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53 at
paragraph 72 (albeit in the context of an appeal, as opposed to a judicial
review).
[63]
But
this is a situation where the findings made by the Tribunal, without further
explanation from the Tribunal, appear to be internally inconsistent, incompatible
or arbitrary, and do not necessarily lead to the Tribunal’s ultimate conclusion
(at paragraph 42) that the evaluators’ reasons for their scores are only in the
consensus scoring sheets. It is not clear from the Tribunal’s fact-finding, as
expressed in its reasons, that the Tribunal has “properly considered the
matter” and has “gone through” the “proper thought processes” (Crake v.
Supplementary Benefits Commission, [1982] 1 All E.R. 498 at page 508 (Q.B.))
or that it has “had regard to the totality of the material before it” (Irarrazahal
Olmedo v. Minister of Employment and Immigration, [1982] 1 F.C. 125 at page
126 (C.A.)).
[64]
If
the matter is remitted back to the Tribunal, which I shall propose, the
Tribunal may well be able to find a coherent basis for it to reach the
conclusion it did. It may well make a justifiable finding about the evaluators’
credibility. But given the important purposes underlying this regulatory
regime, the Tribunal has to explain these matters to the parties and to the
public in transparent, intelligible reasons that demonstrate that it is not
taking arbitrary positions: Dunsmuir, supra, at paragraph 47. As
yet, it has not done so.
[65]
Therefore,
for the foregoing reasons, I conclude that the Tribunal committed reviewable
error in its fact-finding, as expressed in its reasons, and would set aside its
decision on this ground as well.
G. Proposed
disposition
[66]
For
the foregoing reasons, I would grant both applications for judicial review,
quash the decision of the Tribunal, and remit the matter back to the Tribunal
for redetermination in accordance with these reasons. The parties have
prosecuted these two applications for judicial review together and, overall,
success is divided. Therefore, I would order no costs of the applications.
“David Stratas”
“I
agree
M.
Nadon”
“I
agree
Johanne
Trudel”
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