Date: 20050512
Docket: A-358-04
Citation: 2005 FCA 177
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
FLAG CONNECTION INC.
Applicant
and
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
Respondent
Heard at Ottawa, Ontario, on May 11, 2005.
Judgment delivered at Ottawa, Ontario, on May 12, 2005.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
SEXTON J.A.
Date: 20050512
Docket: A-358-04
Citation: 2005 FCA 177
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
FLAG CONNECTION INC.
Applicant
and
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an application for judicial review by Flag Connection Inc. from a decision by the Canadian International Trade Tribunal not to initiate an inquiry into a complaint by Flag Connection. The applicant had complained to the Tribunal about the award of a contract for the supply to Canadian Heritage of more than 64,000 Canadian flags, alleging that the successful bidder was not in compliance with the specifications in the Request for a Proposal ("RFP"). The Tribunal refused to investigate the complaint on the ground that it was out of time.
[2] The provision of the Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/95-300, relevant to this application is as follows.
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6.(2) A potential supplier who has made an objection regarding a procurement relating to a designated contract to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier.
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6.(2) Le fournisseur potentiel qui a présenté à l'institution fédérale concernée une opposition concernant le marché public visé par un contrat spécifique et à qui l'institution refuse réparation peut déposer une plainte auprès du Tribunal dans les 10 jours ouvrables suivant la date où il a pris connaissance, directement ou par déduction, du refus, s'il a présenté son opposition dans les 10 jours ouvrables suivant la date où il a découvert ou aurait dû vraisemblablement découvrir les faits à l'origine de l'opposition.
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[3] Short limitation periods for making an objection and filing a complaint help to ensure that delays in the supply of goods or services to the Government are minimized, and that the successful bidder's need for certainty is met. Hence, the Tribunal is entirely justified in regarding these time limits as important aspects of the regulatory scheme and in not investigating complaints that are out of time.
[4] On February 24, 2004, Public Works and Government Services Canada ("PWGSC") notified Flag Connection that it had awarded the contract to Scythes Inc., which had been awarded similar contracts for the supply of Canadian flags in 2002 and 2003. Flag Connection had been an unsuccessful bidder for these contracts.
[5] In a decision letter dated June 9, 2004, the Tribunal stated that it was not investigating Flag Connection's complaint, because it had not objected to PWGSC about the award of the contract until March 30, 2004. Since this was more than ten days after it had been advised that the contract had been awarded to Scythes, Flag Connection's objection was outside the limitation period provided in subsection 6(2). The Tribunal stated that Flag Connection's complaint was also out of time by virtue of subsection 6(2) because it was not filed with the Tribunal until May 28, more than ten days after Flag Connection's receipt of a letter from PWGSC, dated May 3, 2004, denying it any relief on the basis of its objection.
[6] Flag Connection says that the Tribunal's decision should be set aside because it failed to have regard to the evidence in its entirety when it determined the starting dates of both limitation periods and, consequently, the Tribunal should not have concluded that Flag Connection's complaint was out of time.
[7] It was common ground between the parties to the application for judicial review that patent unreasonableness is the standard of review applicable to the Tribunal's decision not to investigate a complaint respecting procurement. Thus, in order to succeed, the applicant must establish that the Tribunal was patently unreasonable in determining that Flag Connection did not object until March 30 "regarding a procurement related to a designated contract" (i.e. the 2004 contract), and that PWGSC's "denial of relief" occurred on May 7.
[8] As for the date of Flag Connection's objection to PWGSC about the award of the 2004 contract, counsel submitted that the Tribunal erred by focussing exclusively upon Flag Connection's letter of March 30. Instead, it should have read the letter in the context of Flag Connection's previous communications to PWGSC about Scythes' failure to comply with quality requirements in the RFPs for the supply of flags.
[9] I agree that the Tribunal should not be formalistic in determining what constitutes an objection, especially when a complainant is not legally represented. Even so, I am of the view that the Tribunal was not patently unreasonable in treating the March 30 letter as Flag Connection's first objection to the award of the 2004 contract. Counsel says that Flag Connection's first objection regarding the 2004 contract was contained in its e-mail of February 24. However, this e-mail was largely concerned with allegations regarding the contracts awarded to Scythes in 2002 and 2003.
[10] It is true that the February 24 e-mail does refer to the 2004 contract. Thus, Flag Connection comments that, despite earlier non-compliance constituting "fraud", "yet again a contract has been awarded to the Scythes Group of Companies in excess of $1,000,000.00", and asks why Scythes is being awarded another contract.
[11] While it would perhaps have been open to the Tribunal to adopt the view of the correspondence urged by counsel for the applicant, it is not the function of this Court on an application for judicial review to reassess the voluminous and sometimes confusing flood of e-mails sent by Flag Connection. In this proceeding, the Court can only ensure that the Tribunal's assessment of the material before it was not obviously irrational. In my view, it was not.
[12] Although, as I have indicated, the Tribunal might have taken another view, it was not patently unreasonable for it to conclude that Flag Connection's references to the 2004 contract in its e-mail of February 24 did not amount to an objection to the award to Scythes. This e-mail, unlike the letter of March 30, does not clearly state that the award of the 2004 contract is being challenged, identify the basis of the objection, or request any relief. The references to the 2004 contract in the February 24 e-mail may reasonably be read as expressing dismay and puzzlement that a company that had not been compliant in the past should be "rewarded" with another contract.
[13] In view of this conclusion, it is not strictly necessary to address the error allegedly made by the Tribunal concerning the date when Flag Connection was denied relief by PWGSC. Nonetheless, the reasonableness of the Tribunal's conclusion that PWGSC's letter of May 3 constituted a denial of relief is supported by the fact that Flag Connection so regarded it. Thus, in an e-mail of May 10, Flag Connection stated that the PWGSC official dealing with its concerns about the procurement process had already reached her conclusion. And, in an e-mail of May 11, Flag Connection noted that, having "exhausted all avenues within the Canadian Heritage and PWGSC to no avail", it would "move on to initiatives to try to ensure that this does not continue."
[14] Nonetheless, counsel argued that the May 3 letter was not a "final" decision by PWGSC to deny relief, because officials met with Flag Connection on May 18, at the company's request, principally to consider evidence that Flag Connection claimed to have in its possession that proved fraud in the procurement process.
[15] In my opinion, it was quite reasonable for the Tribunal to conclude that this meeting did not prove that PWGSC had reopened its refusal of relief communicated in the letter of May 3. Flag Connection's e-mails of May 10 and 11 give no indication that it thought that PWGSC might still grant it relief on the basis of its objection to the award of the 2004 contract. However, to find that a meeting such as that held on May 18 started the limitation period running again might deter PWGSC officials from responsibly considering evidence that a bidder alleged proved criminal misconduct in the award of Government contracts.
[16] For these reasons, I would dismiss the application for judicial review with costs.
"John M. Evans"
J.A.
"I agree
Robert Décary J.A."
"I agree
J. Edgar Sexton J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-358-04
STYLE OF CAUSE: FLAG CONNECTION INC. v. THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 11, 2005
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
SEXTON J.A.
DATED: MAY 12, 2005
APPEARANCES:
Mr. Ronald D. Lunau FOR THE APPLICANT
Mr. Alexandre Kaufman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gowling Lafleur Henderson LLP FOR THE APPLICANT
Ottawa, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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