Date:
20080118
Docket: A-184-07
Citation: 2008 FCA 19
CORAM: RICHARD
C.J.
LÉTOURNEAU
J.A.
PELLETIER
J.A.
BETWEEN:
THE ACCESS INFORMATION AGENCY
INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
(TRANSPORT CANADA)
Respondent
and
IRENA LANG CONSULTING
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issues
[1]
This
is an application for judicial review of a decision of the Canadian
International Trade Tribunal (the Tribunal).
[2]
Despite
its victory before the Tribunal, which upheld its complaint regarding a
procurement contract with the Department of Transport, the applicant is
challenging the Tribunal’s decision.
[3]
It
raised several complaints about the impugned decision. It is not necessary to
repeat them all here. Only two of them merit specific mention. Both involve the
remedies granted by the Tribunal to the applicant, or, more accurately, those
that the Tribunal refused to grant to the applicant. One issue is procedural
and the other substantive.
Procedural issue
[4]
From
a procedural perspective, the applicant submits that it was not given the
opportunity to make submissions regarding its request to be compensated for [translation] “the opportunity that it
lost to participate meaningfully in the procurement process” and for [translation] “its reasonable costs
incurred in preparing and proceeding with the complaint”: see the Applicant’s
Record, Volume 1, at pages 108 and 120, the applicant’s complaint and the
remedies sought.
[5]
The
applicant submitted an initial set of representations on this issue in its
complaint form: ibid. It withdrew them on December 12, 2006, in its
response to the report from the Department of Transport, indicating that it
might like to make additional representations: see Applicant’s Record,
Volume 2, at pages 457 and 458. Finally, it provided more detailed representations
on January 14, 2007, in its supplementary response to the report by the
Department of Transport: see Applicant’s Record, Volume 3, at pages 692
to 694.
[6]
Despite
this, the applicant submits that the Tribunal should have heard it again before
rendering its decision on remedies. In support of its claim, it cites
section 8 of the Canadian International Trade Tribunal Procurement
Inquiry Regulations, P.C. 1993-2102, December 15, 1993.
[7]
However,
section 8 applies only to cases in which the Tribunal produces an interim
report in respect of the complaint. In such a situation, the Tribunal must
provide a copy of the interim report to the complainant, the relevant federal
institution and any other party that the Tribunal considers to be an interested
party. Any of these parties may make representations on any aspect of the
report.
[8]
In
this case, because the Tribunal did not produce an interim report,
section 8 cannot be a valid basis for the applicant’s claim.
[9]
To
conclude with respect to this initial procedural grievance, I find that the rules
of natural justice have been followed. As we will see below, an analysis of the
second grievance confirms that it was not necessary for the Tribunal to rehear
the applicant regarding the two types of compensation that were denied.
Substantive issue
[10]
In
the Memorandum of Fact and Law that it filed in this case, the applicant
claimed a third head of compensation for lost profits. At the hearing, it
abandoned this claim to focus on the two heads of compensation mentioned above.
This leads me to a consideration of the merits of the applicant’s second
grievance.
[11]
In
essence, the applicant is complaining about two things. First, the Tribunal
should have granted the two heads of compensation it was seeking. Second,
having refused to do so, it should have provided grounds for this refusal.
(a) The refusal to order
compensation for the loss of opportunity to participate meaningfully in the
procurement process
[12]
Given
the nature of the breach it identified, the Tribunal, in exercising its
discretion and relying on its experience, decided that the appropriate remedy
consisted in a new review of the bid submitted by the applicant in the light of
a broader analytical framework, which it did. In this way the applicant was
able to participate meaningfully in the procurement process.
[13]
I
understand that the applicant’s bid was unsuccessful after this re-evaluation.
I also understand that this must be disappointing to the applicant. However, given
the fact that the second evaluation was not challenged and that there is no
decision quashing it, it would be not only unreasonable but impossible to
conclude that the applicant was unable to participate meaningfully in the
current procurement process. I do not believe that the meaningfulness of a
bidder’s participation in a procurement process can be measured by whether the
bid is accepted or rejected.
[14]
In
my humble opinion, the remedy selected by the Tribunal did not leave any room
for compensation for the loss of opportunity to participate meaningfully in the
process at issue. I do not believe that the Tribunal was required to say more
in the circumstances.
(b) The refusal to
order compensation for the reasonable costs incurred in preparing and
proceeding with the complaint
[15]
The
Tribunal has the discretionary power to order that the complainant be
reimbursed for the costs incurred in preparing a response to a call for tenders:
see subsection 30.15(4) of the Canadian International Trade Tribunal
Act, R.S.C. 1985, c. 47 (4th supp.); Canada (Attorney General) v. Envoy
Relocation Services, [2007] F.C.J. No. 626, 2007 FCA 176.
[16]
In
The Impact Group v. National Research Council of Canada, File No. PR-2005-050,
June 14, 2006, to which the applicant has directed our attention, the
Tribunal ordered that the complainant party be compensated for the costs
incurred in preparing its proposal. There had been a serious flaw in the
procurement process as a result of deficiencies in the evaluation process relating
to the evaluation of relevant criteria.
[17]
However,
that case can be distinguished from this one in that it did not, as ours does,
involve the re-evaluation of the complainant party’s bid. In other words, there
had been no remedy for the harm suffered. In the circumstances, the Tribunal concluded
that the type of compensation granted was the most suitable means of redressing
the harm suffered by Impact Group: see the Tribunal’s decision at
paragraphs 44 and 47 to 49.
[18]
In
this case, the remedy selected by the Tribunal redressed, in its view, the harm
suffered by the applicant, without the need to add the compensation claimed for
the costs of preparing a response to the call for tenders. I see no basis for
concluding that the Tribunal erred in law or acted unreasonably in making this
choice. Again, I do not find that it was necessary for the Tribunal to say any
more about this issue, though I note that had it done so, the debate before us
may have been avoided.
Conclusion
[19]
For
these reasons, I would dismiss the application for judicial review with costs.
“Gilles
Létourneau”
“I
agree.
J. Richard, C.J.”
“I
agree
J.D.
Denis Pelletier, J.A.”
Certified
true translation
François
Brunet, Revisor
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