Date: 20120208
Docket: A-253-11
Citation:
2012 FCA 42
CORAM: LÉTOURNEAU J.A.
PELLETIER J.A.
GAUTHIER J.A.
BETWEEN:
OPSIS, GESTION D'INFRASTRUCTURE INC.
Applicant
and
DEPARTMENT
OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issues
[1]
Was the Canadian International Trade Tribunal
(the Tribunal) justified in declining jurisdiction to conduct an inquiry into
the complaint filed by the applicant concerning a procurement for the
maintenance and operation of the mechanical and electrical systems at the
Canadian Meteorological Centre (CMC) in Dorval, Quebec? The complaint was filed under subsection 30.11(1) of the Canadian
International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.).
[2]
A further issue is which standard of review is
applicable to the Tribunal’s decision. This second issue is of less importance
in the present matter since the Tribunal’s decision was both correct and
reasonable.
The facts
underlying the Tribunal’s decision
[3]
Since we need solely to determine the issue of
the Tribunal’s jurisdiction, it is not necessary for us to examine the facts
regarding the merits of the complaint, the substance of which is that the
Department of Public Works and Government Services allegedly did not properly
evaluate the applicant’s proposal submitted in response to a request for
proposal subject to the Agreement on Internal Trade, (1995) 129 Can.
Gaz. I, 1323 (AIT).
[4]
According to the respondent, the CMC is a
facility that houses the supercomputers of Environment Canada. These computers
are seen as being essential to Canada’s security. The CMC is at the heart of the operations of
Environment Canada’s weather forecasting system and telecommunications network.
[5]
According to the respondent, obtaining and
supplying weather data is essential for the following services:
(a) strategic support for military operations;
(b) support for Health Canada’s operations when radioactive or dangerous materials are released
into the atmosphere;
(c) weather warnings for Canadians; and
(d) services for marine and air carriers,
including volcanic ash warnings.
[6]
When the time came to renew this maintenance
contract, it had been the applicant’s since 2006. A cloud appeared on the
horizon: the CMC’s facilities had become too small, and, to improve services,
the CMS had to move and obtain new supercomputers. The anticipated costs were
high, possibly up to $100 million: see Applicant’s Record, Vol. 2 at
page 495. But there was more. There were inevitable delays in making the new
facility operational so that, in the meantime, the CMC continued to offer its
services from its Dorval
location.
[7]
When the bidding process was completed, the
applicant was informed that the maintenance contract had been awarded to
another bidder. It therefore filed a complaint with the Tribunal, which decided
to conduct an inquiry and informed the parties of this on March 3, 2011.
On March 23, 2011, the respondent filed a motion asking the Tribunal to
dismiss the applicant’s complaint on the basis that the respondent had invoked
the national security exception provided for in Article 1804 of the AIT, which
reads as follows:
Article
1804: National Security
Nothing in this
Agreement shall be construed to:
(a) require the Federal Government to provide, or allow
access to, information the disclosure of which it determines to be contrary to
national security; or
(b) prevent the Federal Government from taking any action
that it considers necessary to protect national security interests or, pursuant
to its international obligations, for the maintenance of international peace
and security.
[8]
By invoking Article 1804, the respondent
precludes the procurement in question from the application of the AIT and
consequently makes the procurement process rules and the bid challenge
procedures provided by the AIT unenforceable.
[9]
Confronted with the fact that the procurement
the applicant complained about was exempt from the provisions of the AIT
application for national security reasons and noting that none of the other
trade agreements applied, the Tribunal found that the complaint did not concern
a designated contract, as prescribed by subsection 30.11(1) of the Act.
Consequently, it dismissed the complaint for lack of jurisdiction, in
accordance with paragraph 10(a) of the Canadian International
Trade Tribunal Procurement Inquiry Regulations, SOR/93-602.
Analysis of the Tribunal’s decision and parties’ submissions
[10]
In line with its previous decisions, the
Tribunal concluded that it did not have the jurisdiction to review “the federal
government’s determination that a particular matter relates to
national security”: see the Tribunal’s decision at paragraph 13. However,
it could “satisfy itself that a national security exception has actually and
properly been invoked”: ibidem, at paragraph 14. Also, the
exception had to be invoked by a person duly authorized by the government
before the end of the procurement process and concern the procurement in
question: ibidem, at paragraph 17. The applicant’s challenge
concerns this last factor.
[11]
In fact, the applicant argues that the invoked
exception concerned solely any future procurements related to the purchase or
leasing of new supercomputers and the facilities to house them and that it did
not apply to the existing facilities in Dorval. Consequently, its complaint did fall under the Tribunal’s
jurisdiction and should be ruled on by the Tribunal.
[12]
The applicant bases its argument on its
interpretation of the following excerpt (with emphasis added) from an exchange
of correspondence between Environment Canada’s Assistant Deputy Minister and
Chief Information Officer (Mr. Shawcross) and the Assistant Deputy
Minister of the respondent’s Acquisitions Branch (Mr. Ring), specifically,
a letter in which Mr. Shawcross asked that the national security exception
be invoked: see Applicant’s Record, Vol. 1, at pages 199 to 201.
Mr. Ring’s letter of acceptance reads as follows:
Dear Mr. Shawcross,
Thank you for your letter, dated June 15, 2012,
requesting my approval to invoke a National Security Exception with respect to
the extension of the existing contract, as well as with respect to any future
procurements of supercomputers and the facilities to house them.
Based
on the reasons set out in your letter dated June 15, 2010, I agree to invoke
the National Security Exception to exempt the extension of the existing
contract as amended, as well as with respect to any future procurements of
supercomputers and the facilities to house them from the provisions of Canada’s
international trade agreements, current and future, including the World
Trade Organization – Agreement on Government Procurement, Article XXIII(1), the
North American Free Trade Agreement, Article 1018(1), the Canada-Chile Free
Trade Agreement, Article Kbis-16(1) and the Agreement on Internal Trade,
Article 1804, for all purposes.
It
is intended that the applicable project will be managed, on your behalf, in
PWGSC Acquisitions Branch by Levent Ozmutlu, Senior Director, Informatics and
Telecommunications Systems Procurement Directorate. Mr. Ozmutlu can be reached
at 819-956-9514, if you have any questions. This letter does not constitute
either an approval or rejection of a sole source procurement strategy. Any
procurement strategy must be in accordance with Government Contracts
Regulations and applicable policies. I would recommend that your staff discuss
proposed procurement strategies with Mr. Ozmutlu.
[Emphasis
added.]
[13]
After analyzing the evidence in the record and
the submissions filed, the Tribunal concluded that the national security
exception invoked in Mr. Ring’s letter agreeing to Mr. Shawcross’s
request could reasonably be interpreted to refer to the services that were the
subject of the complaint and that it was sufficiently broad and general to
reasonably include the CMC in Dorval.
[14]
Here is how the Tribunal dealt with this issue
at paragraphs 19 and 20 of its decision:
19. With regard to the first issue, the Tribunal is of the
opinion that the national security exception invoked in Mr. Ring’s letter can
reasonably be interpreted to refer to the services that are the subject of the
complaint and to the subject procurement. The Tribunal notes that Mr. Ring’s
letter states that the exception concerns “. . . any future procurements of
supercomputers and the facilities to house them.” The Tribunal is of the
opinion that this statement is sufficiently broad and general to reasonably
concern and include future procurements relating to the facilities that house
the supercomputers, that is, the Canadian Meteorological Centre in Dorval, as
well as future government procurements relating to the possible acquisition of
new supercomputers and to the facilities to house them, whether they be located
in Dorval or elsewhere.
20. The
Tribunal therefore accepts PWGSC’s arguments that the wording of the August 6,
2010, letter meant to exempt from the scope of the AIT all future procurements
relating to the facilities that house the supercomputers whose operation is
necessary to protect Canada’s
interests in respect of national security. Since the exception concerns all
future procurements relating to those facilities, it necessary applies,
according to the Tribunal, to the procurement of qualified labour for the
operation, maintenance and performance of minor repairs at those facilities.
The Tribunal notes that the subject Request for Proposal provided that the
contractor’s responsibilities relating to that service involve the operation,
maintenance and repair of the mechanical, electrical and architectural systems
of the building in Dorval, services that are clearly related to the facilities.
As well, the subject procurement clearly indicate that those services must be
provided while maintaining, at the same time, all operational, computer,
development, research and administrative activities of the Canadian
Meteorological Centre in Dorval. While there may be other contracts in place
for aspects relating to those facilities, this does not take away from the fact
that the subject services do relate to the facilities in Dorval. Therefore, the Tribunal finds that
the exception invoked on August 6, 2010, is specific to the context of the
present complaint that involves a procurement for the maintenance and operation
of the mechanical and electrical systems of the Canadian Meteorological Centre
in Dorval, including the maintenance of the mechanical, electrical and
architectural systems of the building or of that facility, as well as minor repairs.
[15]
Whether the Tribunal’s interpretation of
Mr. Ring’s letter raises a pure question of law reviewable on correctness
or a question of mixed fact and law reviewable on reasonableness is, in my
opinion, of no importance in the present case since it meets both standards.
[16]
I end by noting that, in its effect, the
invocation of the national security exception carries the potential for serious
abuse. When invoked, the exception results in protecting the procurement from
any challenges before the Tribunal specialized in this matter. It may be
concealing oblique or improper motives that distract from the real purpose of
the invocation and justify a judicial review. I hasten to add that there is no
evidence of this in the matter before us.
Conclusion
[17]
For these reasons, I would dismiss the
application for judicial review with costs.
“Gilles Létourneau”
“I agree.
J.D. Denis Pelletier J.A.”
“I agree.
Johanne Gauthier J.A.”
Certified true
translation
Johanna Kratz,
Translator
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