Date: 20151130
Docket: A-498-14
Citation:
2015 FCA 272
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CORAM:
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TRUDEL J.A.
SCOTT J.A.
DE MONTIGNY J.A.
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BETWEEN:
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CGI INFORMATION
SYSTEMS AND MANAGEMENT CONSULTANTS INC.
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Applicants
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And
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CANADA POST
CORPORATION, INNOVAPOST INC., WIPRO TECHNOLOGIES CANADA LTD.
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Respondents
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REASONS
FOR JUDGMENT
SCOTT J.A.
[1]
Before this Court is an application for judicial
review of a decision of the Canadian International Trade Tribunal (CITT or the
Tribunal) rendered on October 9, 2014, in files PR-2014-015 and PR-2014-020.
The Tribunal upheld in part a complaint brought by the applicants CGI
Information Systems and Management Consultants Inc. (CGI) based on allegations
that Canada Post Corporation (CPC) breached its obligations under Chapter 10 of
the North American Free Trade Agreement (NAFTA) in a procurement
process conducted through Innovapost Inc. (Innovapost).
[2]
The procurement process concerned the provision
of data centre services that is ‑technology and facility‑related
components and activities required to support a data centre. It was a large
procurement, both in scope and monetary value.
[3]
CGI’s application for judicial review before
this Court asserts three errors in the Tribunal’s decision. CGI claims that the
CITT: a) erred in concluding that CGI’s technical bid was fairly evaluated
based on the evaluation criteria published in the Request for Proposals; b)
erred in its determination that CGI’s bid was not evaluated on undisclosed
evaluation criteria; and c) erred in concluding that the principle of
spoliation was not applicable in this case.
[4]
The standard of review in this application for
judicial review of the CITT’s decision on the interpretation and application of
the terms of the solicitation documents is the deferential standard of
reasonableness.
I.
Background
A.
The bid
[5]
On December 3, 2012, Innovapost issued an
invitation to submit a response to a competitive Request for Proposal (RFP) for
Data Center Services on behalf of the Canada Post Group of Companies.
[6]
The RFP was divided in two phases. Further to
Phase 1, four companies were selected to proceed to Phase 2; amongst them were
CGI, and the respondent Wipro Technologies Canada Ltd. (WIPRO).
[7]
The four companies received the “Phase 2 Selection
Requirements and Information Package” on June 7, 2013. Phase 2 bidders were
required to submit two separate envelopes; one for the Technical Proposal and
one for the Pricing Proposal.
[8]
The Technical Proposal was subdivided in stages
6 to 11 as follows:
Stage 6: Phase 2 Proposal Response;
Stage 7: Evaluation
of Phase 2 Technical Proposal (excluding the Pricing Proposal);
Stage 8: Evaluation of Oral Presentations and (Site Visits if
required);
Stage 9: Potential Phase 2 short-listing of Short-listed
Proponents;
Stage 10: Evaluation of Pricing Proposal;
Stage 11: Overall Ranking and Final Selection.
[9]
A maximum score of 58 was assigned to the
Technical Proposal whereas the Pricing Proposal contributed the remaining 42
points for a total score of 100. It is to be noted that in order to reach Stage
10 and have its Pricing Proposal considered, a bidder needed to score at least
70% or 40.6 out of 58 on its Technical Proposal.
[10]
In order to score the bids, a two-fold
evaluation was conducted. First, four evaluators individually assessed each
proposition using an evaluation grid that fragmented the requirements in
different categories. A rating scale was also provided to the evaluators to
offer some guidance. Second, each of the four evaluators had to explain their
respective scoring in a meeting held to reach consensus on each item. Experts
who could comment on the scoring and assist them in coming to a consensus
assisted them.
[11]
CGI failed to meet the 70% threshold for its
Technical Proposal. Consequently, its Pricing Proposal was never considered.
B.
The Debriefings
[12]
On October 21, 2013, CGI was informed that it
was not the highest ranked Short-listed Proponent and therefore was not
selected for contract award and advised that it was entitled to a debriefing.
[13]
It is to be noted that, between October 21 and
the end of November 2013, Ms. Walker, the Director of Sourcing Management at
CPC, destroyed the individual scoring sheets used by the four evaluators in
accordance with CPC’s “Procurement Evaluator Guide”.
[14]
On December 6, 2013, WIPRO was awarded the
contract. That information was published on MERXTM on December 13
and on that same date CGI requested a debriefing.
[15]
A first debriefing took place on January 15,
2014. CGI considered the explanations provided during this first session to be
inadequate and requested a second debriefing session. It was dissatisfied
because no explanations were provided in writing and CPC withheld the scores of
the other bidders.
[16]
The second debriefing session was held on March
31, 2014. CGI was provided with its score regarding the technical aspects of
the bid.
[17]
On April 2, 2014, CGI requested in writing
certain documents including the undisclosed weighing criteria provided to each
of the evaluators, a breakdown of the total scores for CGI and WIPRO and an
explanation of what CGI could have done to score maximum points under each of
the rated criteria. It also requested some of WIPRO’s bid information as
required by article 1015(6)(b) of NAFTA. Finally it expressed its
disappointment in view of CPC’S refusal to disclose the scoring documentation,
the guidelines used by the evaluators, the individual scoring sheets and the
procedure and methodology used at the consensus stage.
C.
The complaints to the CITT
[18]
CGI filed a first complaint with the CITT
(Tribunal File PR-2014-006) on April 14, 2014 alleging that the debriefings
provided had failed to meet the disclosure standard set by article 1015(6) of
NAFTA and that CPC had departed from the published evaluation plan. There
ensued an exchange of correspondence with CPC. As a result CGI filed a second
complaint with the CITT on May 27, 2014 (Tribunal File PR-2014-015).
[19]
That second complaint alleged that CPC’s
evaluation of CGI’s bid was unreasonable and biased. The CITT accepted the
complaint for inquiry on June 2, 2014. Motions requesting the production of
certain documents accompanied these complaints and the CITT ordered the
production of some documents. On June 30, 2014, when CPC filed its
"Government Institution Report" (GIR) in response to the complaints and
some of the documents ordered by the CITT, it also disclosed that the
evaluators’ individual scoring sheets had been destroyed.
[20]
The disclosure of the destruction of the
evaluators’ individual scoring sheets led to the filing of CGI’s third
complaint (Tribunal File PR-2014-020) on grounds that such action constituted a
breach of CPC’s obligation under Article 1017(p) of NAFTA. On July 15, 2014,
the CITT informed the parties that this third complaint had been accepted for
inquiry and was combined with Tribunal File PR-2014-015.
[21]
At the onset of its decision, the CITT rejected
CPC’s objection to the effect that CGI’s first complaint was untimely.
II.
The Tribunal’s jurisdiction
[22]
The Canadian International Trade Tribunal
Procurement Inquiry Regulations SOR/93-602 and sections 30.1 to 30.19 of
the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.),
c.47 (the Act) set out the regime applicable to federal government
procurements.
[23]
In response to a complaint in relation to
federal government procurements, the CITT is empowered under the Act and the
Regulations to conduct an inquiry and recommend remedies.
•
Sections 30.11 and 30.12 of the Act provide that
a potential supplier can file a complaint with the CITT regarding any aspect of
a federal government procurements process.
•
Subsection 30.13(5) of the Act specifies that
the CITT can decide to conduct an inquiry or not, after it has received a
complaint.
•
Subsections 30.13(1), 30.13(2), and 30.14(1) of
the Act apply once the CITT has decided to conduct an inquiry. It must then
advise the relevant government institution and interested parties. The CITT is
free to hold a hearing or not.
•
Subsection 30.14(2) of the Act requires the CITT
to determine whether a complaint is valid based on specific grounds that is “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”.
•
In the present case section 11 of the
Regulations applies as it empowers the CITT to assess a complaint on other
grounds namely NAFTA.
[24]
The relevant provisions of NAFTA applicable in
this case are set out in the appendix B to these reasons.
[25]
Subsection 30.15(1) of the Act sets out the
obligation of the CITT to issue findings and to make recommendations if it
finds a complaint to be valid and to give reasons at the conclusion of any
inquiry.
[26]
Where, as in the present case, the CITT finds a
complaint to be valid, whether in whole or in part, it may recommend remedies.
[27]
Subsections 30.15(2) and 30.15(3) delineate the
scope of the CITT’s discretion in issuing recommendations and the factors that
it must take into consideration.
[28]
In Canada (Attorney general) v. Almon
Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203 [Almon], at
paragraphs 22 and 23, this Court summarized the purpose of the regulatory
regime and the role of the CITT. It should ensure fairness to competitors in
the procurement system, competition among bidders, efficiency, and integrity.
III.
The CITT’s decision
[29]
The CITT identified two main issues raised by
CGI as to the merits of the complaints:
1) Whether the destruction of individual scoring sheets used in the solicitation
was a breach of Article 1017(p) of NAFTA?
2) Whether CPC’s evaluation of CGI’s bid complied with Articles 1013(1)
and 1015(4) of NAFTA?
[30]
On the first issue, the CITT concluded that
CPC’s destruction of the individual scoring sheets used in the solicitation
constituted a breach of Article 1017(p) of NAFTA based on its finding
and Canada’s Post admission to that effect, but concluded that it did not constitute
spoliation.
[31]
In finding that spoliation had not taken place
in this instance, the CITT applied the criteria developed by the Alberta Court
of Appeal in McDougall v. Black & Decker Canada Inc., 2008 ABCA 353
[McDougall]. The CITT examined whether CPC destroyed the individual
scoring sheets intentionally while litigation was contemplated and whether it
was reasonable to infer that the destruction was done to affect the outcome of
the litigation (Tribunal’s decision at paragraph 74).
[32]
The CITT determined that it was only on June 30,
2014, that CPC first disclosed that the individual scoring sheets had been
destroyed in accordance with its procurement policy. CPC’s witness Ms. Walker
testified that the procurement policy mandating the destruction of peripheral
documents had been in place for a number of years prior to this solicitation
for tenders. She also affirmed that when she destroyed the individual scoring
sheets in late October or November, no litigation was contemplated (Tribunal’s decision
at paragraph 89).
[33]
Weighing the evidence, the CITT concluded that
spoliation had not been established on a balance of probabilities. On the facts
of the present case, the mere possibility of a challenge by an unsuccessful
bidder was not found to be sufficient to conclude that the destruction took
place in contemplation of litigation or to affect such litigation (Tribunal’s decision
at paragraph 92).
[34]
On the second issue, whether the evaluation of
the bids was conducted in compliance with articles 1013(1) and 1014(4) of
NAFTA, the CITT looked into three specific allegations brought forward by CGI.
First, whether the rating scale used by the evaluators was inconsistent with
the terms of the RFP. Then whether the proposals were evaluated on undisclosed
preferences for certain characteristics and finally, whether the scores assigned
to CGI’s Technical Proposal were in accordance with the RFP (Tribunal’s
decision at paragraph 97).
[35]
The CITT concluded that the first allegation was
unfounded since the basis of the evaluation published in the RFP was broad
enough to encompass different variations of rating scale, including the rating
scale used by CPC which was found to be consistent with the RFP (Tribunal’s decision
at paragraphs 124 and 125).
[36]
On the second allegation, the CITT rejected
CGI’s claim that its bid was evaluated on the basis of whether it included
certain preferred characteristics that had not been disclosed in the tender
documents. The scoring sheets identified certain characteristics as to what
constituted excellent responses and these were not disclosed. The CITT
concluded however that the characteristics in question were not used as
evaluation criteria but only as guidance and that any inappropriate use by
individual evaluators treating the characteristics as requirements would have
been corrected in the consensus meetings. As a result, it rejected CGI’s argument
(Tribunal’s decision at paragraph 135).
[37]
Finally on the third allegation made by CGI, the
CITT concluded there was no evidence of bias or apprehension of bias. It was
satisfied that CPC provided reasonable explanations for the manner in which the
consensus evaluation unfolded and more specifically as to why CGI received a
lower score on specific subsections of its Technical Proposal (Tribunal’s decision
at paragraph 152).
[38]
Having concluded that the complaint was well
founded in part since article 1017(1)(p) of NAFTA had been breached, the
CITT recommended that CPC and Innovapost implement policies and procedures to
ensure that complete documentation be maintained in all their future
procurements and awarded CGI costs of $4700 (Tribunal’s decision at paragraphs
171 and 172).
IV.
The standard of review
[39]
The parties involved all acknowledged that the
applicable standard of review of the CITT’s decision is reasonableness.
[40]
Notwithstanding the parties agreement on the
applicable standard, it remains incumbent on the reviewing court to determine
the applicable standard (see Monsanto Canada Inc. v Ontario (Superintendent
of Financial Services), 2004 SCC 54 [2004] 3 S.C.R. 152, and Canada v.
Long Plain First Nation, 2015 FCA 177, at paragraph 86).
[41]
In Siemens Westinghouse Inc. v Canada
(Minister of Public Works and Government Services), 2001 FCA 241, [2002] 1
F.C. 292, at paragraphs 21-22, this Court acknowledged the CITT’s expertise in
the subject matter at issue, namely “whether 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”.
[42]
It is unquestionable that the CITT possesses the
expertise to determine whether a government institution has met its obligations
when procuring goods and services that are subject to NAFTA. Section 11 of the
Regulations empowers the CITT to conduct inquiries on complaints from
interested parties. That expertise commands a deferential standard of
reasonableness. In Delios v. Canada (Attorney General), 2015 FCA
117, 472 N.R. 171, this Court has emphasized that matters of factual
appreciation and specialized expertise entitle administrative tribunals to a
wide margin of appreciation. In my view the CITT is entitled to such a margin
in this case because the issues at stake fall squarely in its area of
expertise.
V.
Analysis
A.
Evaluation of CGI’s bid
(1)
Was CGI’s bid conducted in compliance with
articles 1013(1) and 1015(4) of NAFTA?
[43]
At the hearing, CGI referred to Articles
1013(1)(h) and 1015(4) of NAFTA and explained that the tender documents
issued by CPC needed to contain all the information that would permit a bidder
to submit a complete response to the RFP. It argued that CPC breached those
provisions because the scoring methodology used was inconsistent with the RFP documentation.
[44]
Relying on the CITT’s decision in MIL Systems
(RE), [1999] C.I.T.T. No. 28, 1999 CanLII 14607, CGI underlined that the
Tribunal has always recognized that the use of an undisclosed scoring
methodology that cannot be inferred from the published RFP constitutes a breach
of trade agreements because it undermines the entire bidding process. CGI also
pointed to the decisions in Med-Emerg International v. Department of Public
Works and Government, CITT File No. PR-2004-050 at paragraph 59, and Deloitte
& Touche LLP v. Department of Public Works, CITT File No. PR-2005-044
at paragraphs 30 and 33, that stand for that principle.
[45]
CGI relied also on Prudential Relocation
Canada Ltd., CITT File No PR-2002-070 page 8, to point out that even
though the situation in that case was the exact opposite from the case before
us in that the published criteria promised points for exceeding criteria but
the instructions to evaluators did not allow that for all requirements. The
Tribunal held that a discrepancy between the published evaluation criteria and
the instructions for their application constituted a breach of NAFTA more particularly
of Articles 1013(1)(h) and 1015(4).
[46]
CGI then turned to this Court’s statement on the
purpose of the regulatory regime in Almon at paragraphs 22-23, and the
role of the CITT as ensuring: fairness to competitors in the procurement
system, competition among bidders, efficiency and integrity. It argued that CPC
is framing the case as a private law dispute but there are public policy
elements at play and it is the role of the CITT to ensure that bids issued by
government institutions, Canada Post in this instance, comply with the
applicable international agreements, namely NAFTA.
[47]
CGI emphasized that CPC had not published the Score
Definition and the Rating Guide to bidders. The scoring methodology was only
disclosed to CGI a few days before the CITT’s hearing. A copy of the Score
Definition document is appended hereto as confidential Appendix A.
[48]
Turning to the description of the Stage 7:
Evaluation of Phase 2 Technical Proposal, CGI emphasized that the wording used
clearly stated that bids would be evaluated on the basis of whether they met
the Phase 2 rated requirements. CGI disputed the CITT’s determination that the
undisclosed Score Definition was consistent with what was indicated in the DCS
Solicitation because the Phase 2 Selection Requirements and Information Package
(SRIP) advised bidders to submit detailed proposals that included
substantiation.
[49]
CGI argued that the requirements in solicitation
documents for bidders to provide a detailed proposal including substantiation
did not amount to informing bidders that they were required to exceed the
requirements in order to reach the 70% threshold and qualify for contract
award. A bidder could meet the requirement on the basis of the evaluation grid,
but not attain the 70% threshold, unless they exceeded some requirements.
[50]
It is CGI’s position that the undisclosed
scoring methodology consisted of two documents: the Score Definition document
and the Rating Guide. The Score Definition document called for the bids to be
evaluated and scored on a scale from 0 to 10.That document also contained a
column entitled “criteria” which set the bench-mark that proposals had to meet
in order to attain scores varying from 0 to 10. In CGI’s view that undisclosed
Score Definition document resulted in the improper use of the scoring methodology
because evaluators were led to score on the extent to which bids exceeded the
requirements rather that meeting the requirement. In CGI’s view, the Score
Definition document negated the instruction to bidders that there existed a 30%
margin of error. In analysing the Score Definition document and the Rating Guide,
it concludes that 30% of the points were only available if the bidder exceeded
expectations of the various requirements.
[51]
In response to this argument, CPC and WIPRO
point to the fact that the RFP contained information regarding the basis on
which the bids would be evaluated. The Phase 2 SRIP presented the proposal
requirements and the evaluation methodology. It included mandatory, rated, and
pricing requirements. It also provided guidance to bidders advising them that
their Technical Proposal should contain an executive summary and detailed
statements of work that would allow CPC to fully appreciate functionality,
capability and the application of the bidder’s solution to each of the
requirements identified in the detailed Statement of Requirements that was
appended to the Phase 2 SRIP.
[52]
The Phase 2 SRIP equally informed bidders that
their technical bids would be evaluated on the extent to which they met Phase 2
requirements.
[53]
CPC disputes CGI’s contention that the RFP
provided a 30% margin of error. In its view, this allegation of a 30% margin of
error rests on a mischaracterization of the RFP which never mentioned a margin
of error. The rating scale was applied in such a manner that higher scores for
exceeding requirements were only available in instances where the requirements
could be exceeded from a technological perspective. In other instances the
degree of substantiation as stated was the key to scoring at the higher end of
the scale.
[54]
In CGI’s view there is another fundamental
inconsistency between the RFP documentation and the Score Definition in view of
the fact that phase 2 SRIP advised bidders that their Technical Proposal would
be assessed on the extent to which they meet the Phase 2 Rated Requirements.
They were equally advised that their Technical Proposal should be detailed and
substantiated. Section 5 of the Phase 2 SRIP provided more details on the
specifics of the evaluation of different aspects of the proposal. Each
subsection under Section 5 of the Phase 2 SRIP set out its own rated criteria.
The word “exceeds” only appeared once in Section
5 of the Phase 2 RFP documentation. Section 5 was where the majority of points
were awarded. Despite the fact that it was indicated that maximum points would
be awarded if the Proposed Solution demonstrated and provided evidence for each
of the service category, CGI submits that, from the Score Definition and rating
guide, it is apparent that to obtain maximum points a bidder needed to provide
exceptional details. It is CGI’s position that this is inconsistent with and
does not reflect the terms of the RFP.
[55]
Consequently CGI disputes the CITT’s finding
that the RFP had repeatedly instructed bidders that details and substantiation
needed to be included. It does not agree with the conclusion that the RFP was
in fact advising bidders that CPC would evaluate their bids on the extent to
which a bid met the requirements and more importantly that the quality of the
substantiation would impact on the scoring.
[56]
In coming to its determination that the bids
were evaluated from the technological perspective in a manner consistent with
the terms of the RFP, the CITT relied on the explanations provided by Mr.
Bezanson, Director of Program Delivery at Innovapost. GCI disputes the CITT’s
reliance on his testimony.
[57]
CGI equally asserts that the CITT’s conclusion
is inconsistent with the express requirements of NAFTA, which requires that all
information necessary to permit suppliers to present complete proposals must be
included in published solicitation documents.
Analysis
[58]
As stated previously, section 30.14(2) of the
Act specifies that the Tribunal, when investigating a complaint, must determine
if it is valid on the basis of whether the procedures and other requirements
prescribed in respect of the designated contract have been observed. In making
its determination, the CITT must have in mind the following four principles
that can be deduced from the regulatory regime: integrity, efficiency, fairness
to competitors in the procurement process, and a level playing field on which
bidders can compete.
[59]
The complaint raised by CGI is at the core of
the CITT’s expertise since it must determine whether the RFP was conducted in
accordance with the published requirements. Deference is owed to the findings
of the CITT in such instances.
[60]
Was it reasonable for the CITT to conclude that
the evaluators applied a rating scale that was consistent with the published
RFP? It is not disputed that NAFTA imposes such a requirement.
[61]
As I review the Tribunal’s decision, it is
clear that the CITT recognised this principle and proceeded to investigate
whether it was applied in the case of the procurement conducted by CPC. In
making its assessment the CITT had in mind the appropriate question, which is
whether there is unfairness to bidders because the evaluation criteria cannot
be reasonably inferred from the tender documents.
[62]
CGI is challenging the CITT’s determination that
in this instance the 10 point rating scale was reasonably related or could be
reasonably inferred from the published evaluation criteria. CPC used a scale of
0 to 10 points to evaluate the rated requirements and provided the evaluators
with a guideline as to the interpretation of the scores. That grid contained a
general scoring definition and used descriptors such as good, very good, and excellent.
It also contained more detailed parameters and a rated probability as to
whether the solution proposed by a bidder would meet the stated requirements.
The CITT found the rating scale used by CPC to be entirely consistent with what
was indicated in the RFP.
[63]
I note that the rating scale distinguishes
between two elements of the response provided by bidders. Each score is
attributed on whether the criteria are addressed and to what degree. The second
part of each response is evaluated on substantiation. As such it is apparent
that CGI could not obtain maximum scores for only meeting the requirement. The
degree of substantiation always came into play. The Score Definition provided a
spectrum, from information that did not address the criteria to information
that demonstrated that the criteria was exceeded to reach the higher end of the
rating scale beyond the 70% rating, a response needed to exceed the criteria
identified where possible.
[64]
GCI’s argument that it could not be considered
for contract award if it met the criteria is incorrect in my view because the rating
scale also called for proper substantiation.
[65]
At paragraph 110 of its decision, the Tribunal
recognized that the rating scale contained the two considerations, the degree
to which the criteria were met and the description, explanation and the
substantiation of how in met the criteria.
[66]
CGI challenged that conclusion on the grounds
stated above. It claimed on its interpretation, that the published evaluation
documents provided a 30% margin of error. Yet, the Tribunal found that the RFP clearly
indicated that proposals would be evaluated on the level of details and
substantiation.
[67]
When I review the Tribunal statement of the
applicable legal principle, there is no error. Its finding at paragraph 110
that the bidders understood that at least two considerations would enter into
the evaluation of the bids: 1) the proposed technology and 2) the description,
explanation and substantiation of the proposed technology, rests on the
testimony of witnesses from CPC. That determination also rested on the
testimony of Mr. Chartrand, an account executive with CGI, who acknowledged the
importance of providing good documentation and that the quality of the
responses provided in their proposals would impact on their scores (see Volume
5 page 1250). Consequently, the Tribunal’s conclusion is reasonable as it is
based on the evidence that was adduced.
[68]
The Tribunal’s determination in that regard is
also based on the wording used in section 3.2.2 of the Phase 2 SRIP, which
instructed bidders that their Technical Proposal needed to contain detailed
responses and references to substantiating documentation. I cannot accept CGI’s
contention that the Tribunal’s conclusion is unreasonable since it is based on
the wording used in the tender documents.
[69]
I am also satisfied that it was not unreasonable
for the Tribunal to conclude that the manner in which the bids were evaluated
from the technological perspective reflected the express terms of the RFP. That
conclusion rested primarily on Mr. Bezanson’s testimony. In reviewing the
transcript, more precisely pages 6441and 6448 of Volume 20 of the Applicant’s Record,
I find that it was open to the Tribunal to reconcile this testimony with the
wording used in the “Score Definition”, which
specified in brackets “if it can be exceeded”
where it indicated that points would be given for exceeding a criteria.
(2)
Was the rating scale used by the
evaluators inconsistent with the terms of the RFP?
[70]
CGI also asserts that CPC evaluated its bid on
the basis that it contained certain characteristics that were not divulged in
the tender documents. A column on the evaluators scoring sheet identified “certain characteristics of an excellent response” for
each criterion to be evaluated. The scoring sheet also indicated that the
identified characteristics were a non-exhaustive list of examples. CGI argued
that some of the characteristics of an excellent response were not included in
the Phase 2 SRIP or in the Statement of Requirements that were given to
bidders. CGI provided three examples in the evaluation of its bid that it
considers to have been improperly influenced by undisclosed criteria.
[71]
CGI also points to the destruction of the
individual scoring sheets arguing that they would have established clearly how
evaluators approached the Rating Guide.
[72]
It argues that based on the evidence submitted
it had made out a prima facie case of undisclosed preference and that the CITT’s
decision was unreasonable as it departed from established jurisprudence. The
CITT made assumptions regarding how individual evaluators may have interpreted
the ‘characteristics of an excellent response’ and how these would have been
eliminated at the consensus stage of the evaluation.
Analysis
[73]
As I review the CITT’s decision on this issue of
undisclosed preferences and undisclosed criteria in evaluating the bids, I must
reject CGI’s position for the following reasons.
[74]
The reasonableness standard commands that this Court
in such an application for judicial review must ensure that the Tribunal’s
conclusions were reasonably open to it based on the evidence.
[75]
In my opinion, the CITT weighed all the evidence
and relied on the testimony of Mr. Bezanson and the consensus scoring sheets in
coming to the conclusion that the “characteristics of
an excellent response” were not actually used as evaluation criteria.
CGI is asking this Court to substitute its own judgement for that of the CITT.
This is not our role. In this case, the margin of appreciation for the
Tribunal’s decision is substantial because such an issue rests at the very
heart of the Tribunal’s expertise.
[76]
The CITT did not make assumptions regarding how
individual evaluators could have been influenced by the “characteristics of an excellent response”. As I refer
to paragraphs 133 and 134 of the Tribunal’s decision, the CITT concluded that
based on the evidence proffered by Mr. Bezanson and Ms. Walker, it was
satisfied that any fettering of discretion would have been weeded out at the
consensus stage of the evaluations. That conclusion is not based on an
assumption, but rather on the evidence adduced.
[77]
CGI’s allegations that CPC assessed bids based
on undisclosed criteria are contrary to the Tribunal’s findings of fact. The
evidence on the record supported the conclusions reached by the CITT. Consequently,
I must reject CGI’s position as it is asking this Court to re-investigate the
facts that led to the Tribunal’s conclusion.
(3)
Was CGI’s bid evaluated fairly?
[78]
The Tribunal came to the conclusion that CGI’s
bid was evaluated fairly. It rejected CGI’s contention that there were
pervasive errors and trends in its consensus scoring that supported its view
that CPC had adopted a policy to move its IT services away from CGI.
[79]
CGI asserts that the CITT erred in coming to the
aforementioned conclusion for the following reasons. Firstly, CPC failed to
follow the published evaluation plan and misapplied and misinterpreted the
rated requirements. Secondly, CPC’s deficient evaluation process can be
attributed to its reliance on the undisclosed scoring methodology which was
inconsistent with the scoring methodology described in the DCS .Thirdly CGI
claims that it was treated prejudicially during the evaluation since its scores
resulting from the consensus meeting were below the average scores awarded by
individual evaluators.
[80]
CPC and WIPRO dispute these allegations. They
point out that the Tribunal’s conclusion on the scoring methodology adopted was
in keeping with the published evaluation plan and that the rated requirements
were properly assessed.
[81]
With respect to the issue related to the
consensus scoring, CPC asserts that CGI’s position ignores the very nature and
purpose of consensus scoring where the mathematical average individual scores
are irrelevant. CPC points to the testimony of Mr. Bezanson who explained how
the consensus evaluation unfolded. More precisely, he indicated that positive
individual scores tended to increase as a result of consensus meetings and
conversely low individual scores tended to decrease as a result of the process.
Analysis
[82]
I note that the Tribunal addressed the claim
that CGI was not evaluated fairly in paragraphs 139to 153 of its decision. It
reaffirmed its conclusion that the rating scale and the characteristics of an
excellent response were not undisclosed criteria or were not applied as such.
[83]
At paragraph 144 of its decision, the Tribunal
rejected CGI’s claim that it was treated prejudicially by CPC. In arriving at
that conclusion the Tribunal considered the explanation provided by CPC
witnesses for the obvious trends in the consensus scores. It was also satisfied
that the consensus scores resulted from discussions on the technical merit of
the bid. Finally, the Tribunal accepted CPC’s explanations that the individual
score sheets were in fact the starting point for heated discussions and
extensive debates. As such, it was reasonable that the scores that resulted
would not always reflect the averages or medians of individual scores.
[84]
The Tribunal equally addressed CGI’s concerns
with respect to the evaluations of subsections 5.2.1, 5.2.2, 5.2.3, 5.3.1, and
5.3.2, and their various subcomponents evaluated at Stage 7 of the evaluation plan,
and the Oral Presentation at Stage 8. It came to the conclusion that CGI’s
technical presentation scored lower because it lacked details or explanations
and because at times it failed to follow the RFP instructions to match with
each requirement in all the sections of its bid that addressed the requirement.
It also found that in some instances CGI’s bid did not contain the same quality
of information as WIPRO’s.
[85]
The Tribunal’s findings rest in part on the
testimony provided by two CPC’s witnesses, Ms. Walker and Mr. Bezanson (see
Applicant’s Record, Transcript, Volume 20 at pages 6493-6502). The Tribunal
considered the evidence and argument related to the results of the consensus
scoring. I am not convinced that its conclusion is unreasonable in light of the
evidence that was presented before the Tribunal. The explanation provided by
CPC on the discussions held during the consensus meetings is rational and supports
the Tribunal’s conclusion in that respect.
[86]
The Tribunal equally addressed CGI’s concerns
related to Stage 7 (Stage and Subsection Evaluations) and to Stage 8 (Oral Presentation
score). Once again, as I review the evidentiary basis for the Tribunal’s
conclusion that CGI’s complaint is unfounded I cannot find this outcome to be
unreasonable. The Tribunal weighed the evidence and looked into the scores and
was satisfied by the explanations provided by CPC’s witnesses Mr. Bezanson and
Mr. Wilson (see Applicant’s Record, Transcript, Volume 20 at pages 6498-6502).
CGI has failed to adduce any evidence that points to the contrary. The Tribunal’s
determination at paragraphs 151 to 153 is clear and rests on the evidence.
Consequently there is no reason for this Court to intervene.
B.
Spoliation
[87]
CGI claims that the CITT erred by not concluding
that the test for spoliation was met as CPC intentionally destroyed individual
score sheets as per its policy.
[88]
According to CGI, the CITT failed to properly
recognize the unique circumstances of the case. CPC adopted a policy that
mandated the destruction of individual score sheets despite CPC’s obligation
under NAFTA to maintain all the documentation. The destroyed documents would
have contained divergent views on the evaluation of the bids. CPC destroyed the
documents in the context of a high value bidding process which was subject to
the CITT’s jurisdiction.
[89]
CGI’s takes the position that the CITT’s
analysis in applying the test for spoliation set out in McDougall is
erroneous because litigation was contemplated when the individual evaluation
sheets were destroyed. Relying on the testimony of the CPC employee who admitted
having destroyed the individual evaluation sheets sometime between late October
and mid-November in keeping with CPC’s Evaluation policy, CGI claims that the
destruction occurred at a time when CPC was aware that a procurement complaint
could occur. CGI takes the position in the alternative that because the
destruction of the documents was systemic. It meant that it would invariably and
by design fall short of the jurisprudential test for spoliation since it was
always done before specific litigation could be contemplated. This, in CGI’s
view, is an unacceptable affront to the public policy interests underlying the
doctrine of spoliation.
[90]
The respondents dispute these arguments,
claiming that CGI is actually seeking to re-litigate the CITT’s findings of
fact that underlie its conclusion that the test for spoliation was not met in
the present case.
[91]
The respondents point, in particular, to
paragraph 89 of the CITT’s decision where it referred to Ms. Walker’s evidence regarding
the circumstances surrounding the destruction of the individual evaluation
sheets and accepted her explanation that it was “a
purely administrative task” and that it had nothing to do with
contemplated litigation.
Analysis
[92]
The CITT concluded that the record did not
support a finding that CPC had destroyed relevant evidence in order to
influence a litigation that was contemplated.
[93]
The CITT did find that CPC had breached Article
1017(1)(p) of NAFTA when it destroyed the evaluator’s individual scoring
sheets and recommended that Canada Post develop and implement procedures that
ensure complete documentation is maintained regarding such procurements.
[94]
As I examine the CITT’s decision with respect to
the allegation of spoliation brought forth by CGI against CPC, I note that the
CITT made two key factual findings. Firstly, it determined that litigation was
not contemplated by CPC when the documents were destroyed. That finding rests
on Ms. Walker’s testimony that CPC did not expect a bid challenge from CGI when
the documents were destroyed. The CITT also found that there was no reason to
believe that the documents were destroyed to influence the outcome of a
potential bid challenge.
[95]
These findings were made after the CITT
considered the evidence adduced by the parties. CGI was advised on October 21,
2013, that it was not the highest ranked Short-listed Proponent. WIPRO was
awarded the contract on December 6, 2013, and the information was made
available on MERXTM on December 13, 2013 on which date CGI requested
a debriefing. The evidence before the Tribunal established that the individual
scoring sheets were destroyed sometime between mid–October and the end of
November 2013. Ms. Walker testified that no complaint was filed at the time she
destroyed the individual scoring sheets, nor that she expected any. There was
no evidence adduced by CGI to contradict this testimony or to establish that
the documents were destroyed to favour the outcome of the bid challenge.
Consequently, the Tribunal’s conclusion is not unreasonable. I see no reason to
intervene as these determinations are well within the realm of reasonable
outcomes. CGI has failed to point out any serious misapprehension of facts by
the CITT.
[96]
I must also underline that the Tribunal is not
condoning the destruction of relevant documents, as alleged by CGI, since it
did sanction CPC for the destruction of the individual score sheets pursuant to
subsection 30.15(3) of the Act.
VI.
Conclusion
[97]
Consequently, I propose that this application
for judicial review be dismissed with costs.
"A.F. Scott"
“I agree.
J. Trudel J.A.”
“I agree.
Yves de Montigny
J.A.”
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