Date: 20051103
Docket: A-134-05
Citation: 2005 FCA 364
CORAM: NOËL J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
ENVOY RELOCATION SERVICES INC. and
NATIONAL RELOCATION SERVICES (RENOLAT) INC.
Applicants
and
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
[1] This is an application for judicial review of a refusal by the Canadian International Trade Tribunal (the "Tribunal") to inquire into portions of a procurement complaint.
[2] The complaint was launched by the applicants, Envoy Relocation Services Inc. and National Relocation Services (Renolat) Inc., after they lost two 2004 contracts for the provision of relocation services. In their complaint, the applicants set out three different problems with the awarding of the contracts to Royal LePage Relocation Services. Firstly, they claimed that the Department of Public Works and Government Services (the "PWGSC") had diminished their competitive advantage in the 2004 bidding process by disclosing the pricing information in their 2002 bid for a similar contract. Their complaint also alleged that in assessing the 2004 bids, PWGSC evaluators wrongly compared the applicants' 2004 proposals to each other to assess inconsistencies between them. Finally, the applicants asserted that the evaluators wrongly downgraded their scores in the categories of staffing, training and relocation packages. The Tribunal agreed to investigate only the second ground of the complaint, regarding improper comparison of the applicants' proposals.
[3] In this Court, the applicants argue that:
a. the Tribunal erred by "separating" their complaint into elements and then refusing to investigate all of them;
b. the first ground of their complaint, concerning the improper disclosure of their 2002 bid prices, was supported by evidence that provided "a reasonable indication" that the procurement was improper; and
c. by the Tribunal's own screening standard, the third ground of their complaint, concerning scoring, should have been investigated further.
a. Did the Tribunal err by separating the complaint into elements and then refusing to inquire into one or more of those elements?
[4] It was well within the Tribunal's jurisdiction to consider the grounds of complaint separately. In Prassad v. Canada(Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at 568-69, the Supreme Court of Canada observed of administrative tribunal powers over procedure that:
As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice.
[5] Further, in our view, it was appropriate for the Tribunal to consider the grounds of complaint separately, given that the applicants had divided the grounds in this fashion in the complaint.
[6] There is no suggestion that the Tribunal behaved in a procedurally unfair manner in this instance. It did not commit a reviewable error by taking a systematic approach to the complaint.
Standard of Review
[7] The applicants' last two arguments concern the Tribunal's refusal to inquire into portions of their complaint. The Tribunal has significant expertise in deciding whether to conduct an inquiry. That decision is largely discretionary in nature. The appropriate standard of review is patent unreasonableness. E.H. Industries Ltd. v. Canada(Minister of Public Works and Government Services), 2001 FCA 48 at para. 12 (citing Jastram Technologies Inc. v. Canada(Minister of Public Works and Government Services), [2000] F.C.J. No. 367 (C.A.)).
b. Did the Tribunal err by refusing to inquire into the allegations of improper disclosure of the applicants' 2002 pricing information?
[8] The Tribunal can only decide to conduct an inquiry into a complaint if that complaint
discloses "a reasonable indication that the procurement has not been carried out in accordance with" the relevant agreement. Canadian International Trade Tribunal Procurement Inquiry Regulations, para. 7(1)(e).
[9] PWGSC denied disclosing the applicants' 2002 pricing information at the conclusion of the 2002 Request for Proposal ("RFP"). Later, in 2005, the respondent, in answer to the question as to whether it had released the overall pricing for all bidders for the 2002 RFP, replied that:
In accordance with the PWGSC Supply Policy Manual, Chapter 7, Article 7F.706, PWGSC officials can release the name of the successful bidder and unsuccessful corporate bidders, responsive and non-responsive, together with the total amount of their bids and total scores.
[10] The applicants have not contested the accuracy of the quotation of the policy with respect to disclosure. In these circumstances it appears to us that where a person bids pursuant to an RFP, that person must be taken to have waived the right to have its bid kept confidential to the extent that the policy permits disclosure. Therefore, in the circumstances, while there may have been disclosure in this case of the applicants' prices, it cannot be said that such disclosure was improper. The Tribunal's refusal to inquire into this ground of the complaint was not patently unreasonable.
c. Did the Tribunal err by refusing to inquire into the allegations that the applicants' scores had been improperly downgraded in a number of categories?
[11] In refusing the investigate the third ground of the applicants' complaint, the Tribunal commented that it:
does not normally substitute its judgment for that of the evaluators unless there is evidence that the evaluators have not applied themselves in evaluating a bidder's proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria, or have otherwise failed to behave in a procedurally correct manner. The Tribunal is of the opinion that the information in the complaint does not provide a reasonable indication that this has been the case.
[12] The applicants argue that the evaluators' assessments of the staffing, training and relocation package elements of their proposals were based on undisclosed criteria. I am not persuaded that the evaluator's assessments were based upon undisclosed criteria.
[13] The Tribunal has considerable experience and expertise in assessing these kinds of allegations, which essentially raise questions of fact. It was not patently unreasonable for the Tribunal to find that the information in the complaint did not provide a reasonable indication that the evaluation was based on undisclosed criteria and therefore to refuse to inquire into the applicants' claims.
[14] For these reasons, I would dismiss the application with costs.
"J. Edgar Sexton"
"I agree.
Marc Noël, J.A."
"I agree.
B. Malone, J.A."
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