Dockets: A-485-14
A-25-15
Citation:
2016 FCA 279
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CORAM:
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GAUTHIER J.A.
BOIVIN J.A.
GLEASON J.A.
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BETWEEN:
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TPG TECHNOLOGY
CONSULTING LTD.
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
TPG Technology Consulting Ltd. (TPG) appeals and
Her Majesty The Queen (the Crown) cross-appeals from the October 2, 2014 judgment
of the Federal Court issued by Justice Zinn, dismissing TPG’s action for
damages: TPG Technology Consulting Ltd. v. Canada, 2014 FC 933, 245
A.C.W.S. (3d) 840 (Reasons). TPG also filed a separate costs appeal of the
Federal Court’s costs award in TPG Technology Consulting Ltd. v. Canada,
2015 FC 14, 249 A.C.W.S. (3d) 274. The two appeals were consolidated for
hearing.
[2]
For the reasons that follow, I would dismiss
both appeals and the cross-appeal and would award the Crown a single set of
costs in the amount agreed upon by the parties.
I.
Background and the Decision of the Federal Court
[3]
TPG’s action against the Crown stemmed from the
award by Public Works and Government Services Canada (PWGSC) to CGI Group Inc.
(CGI) of a multi-year contract to provide engineering and technical support
services to federal government departments and other governmental users. TPG
was the incumbent and had previously provided such services under the
predecessor contract. It lost the right to continue to do so following the
procurement process that gave rise to its action. In TPG’s Fresh Amended
Statement of Claim, it claimed damages for the breaches of contract that it
alleged had been committed by the Crown in the procurement process. It did not
seek any other remedies, apart from interest and costs.
[4]
The Federal Court heard the case over the course
of 25 days, during which thousands of pages of documentary evidence were filed
and the testimony of 19 witnesses, including several experts, was heard. The
Federal Court dismissed TPG’s claim because it determined that it more properly
ought to have been made to the Canadian International Trade Tribunal (CITT). Although
the Court did find that a breach of contract had occurred, it held that TPG
failed to prove that it suffered any compensable damage as a result of this breach.
[5]
The Crown raised the jurisdictional objection in
its pleadings. In its Fresh as Amended Statement of Defence, the Crown pleaded
that the Federal Court lacked jurisdiction to hear the action as its subject
matter fell within the exclusive jurisdiction of the CITT. TPG, for its part,
argued that the jurisdictional point had been settled in its favour by an
earlier ruling made on the Crown’s summary judgment motion, where the Federal
Court (per Justice Near) had ruled that TPG’s claim, as then constituted, did
not fall within the exclusive jurisdiction of the CITT: TPG Technology
Consulting Ltd. v. Canada, 2011 FC 1054 at para. 45, 340 D.L.R. (4th) 151 [TPG
FC], reversed on other grounds in TPG Technology Consulting Ltd. v.
Canada, 2013 FCA 183, 363 D.L.R. (4th) 370 [TPG FCA].
[6]
By the time the matter was argued before the
Federal Court, the Crown had altered its position on the jurisdictional point
and conceded that the Federal Court possessed concurrent jurisdiction over TPG’s
claim. However, it argued that the Court should decline to exercise such
jurisdiction as the matter ought to have proceeded before the CITT. Despite
this, the Crown made no motion to have the case dismissed on jurisdictional
grounds, and the jurisdictional argument was only addressed by the Federal
Court in its final decision.
[7]
On this issue, the Federal Court held that the
ruling in TPG FC did not settle the question of the Federal Court’s
jurisdiction over TPG’S claim as TPG had amended its claim subsequent to that
ruling and had narrowed the claim to assert only that the Crown had breached
the contract governing the conduct of the procurement process (typically called “Contract A” in the case law) due to unfairness in
that process and by accepting a non-compliant bid. The ruling made by Justice
Near had dealt with a much different claim, in which TPG had also alleged
tortious conduct by the Crown.
[8]
The Federal Court determined that jurisdiction
over the subject matter of TPG’s action was concurrent with both the Federal
Court and the CITT possessing jurisdiction, but that it should decline to
exercise its jurisdiction. The Federal Court reasoned that the matter ought to
have proceeded before the CITT as opposed to the courts in light of both the nature
of TPG’s amended claim and the comprehensive nature of the remedial process
before the CITT, which the Federal Court held was capable of addressing such a claim
(Reasons at paras. 69, 78, 93, 100-103, 107-108).
[9]
Despite determining that it should decline
jurisdiction, the Federal Court nonetheless went on to exhaustively consider
the case on the merits and found that TPG had not made out its case for
damages. In so holding, the Federal Court reached four conclusions that are
relevant to these appeals and cross-appeal.
[10]
First, the Federal Court held that the Crown
owed and breached its duty of fairness to TPG because the evaluators who
assessed the competing bids adjusted the way in which they applied two of the
evaluation criteria (criteria 3.3.3 and 3.3.5) to TPG and another bidder, but
there was no clear evidence to show that the same adjustment had been made for
CGI (Reasons at paras. 125-127).
[11]
Second, the Federal Court found that TPG failed
to establish unfairness in respect of any of the other evaluation criteria or
in the overall conduct of the bid process (Reasons at paras. 144-146). There
were 217 criteria in total against which bids were evaluated, but TPG
challenged only nine of them. The Federal Court held that the evidence did not
support TPG’s assertion that the Crown unfairly evaluated the seven other
criteria that TPG challenged and, indeed, held that there was not even a
principled basis for TPG to have suggested any unfairness in respect of these seven
other impugned criteria (Reasons at paras. 149-151). The Federal Court further
rejected TPG’s assertion that the Court should find the entire process to have
been unfair merely because TPG had shown there to be unfairness in the
assessment of two of the 217 criteria under which the competing bids were
assessed (Reasons at paras. 146, 151).
[12]
TPG argued in this regard that the comments made
by this Court in TPG FCA at paragraph 10 to the effect that if sections
3.3.3 and 3.3.5 of the Request for Proposal (RFP) were unfairly evaluated, “it is probable that the entire bid was unfairly evaluated”
meant that the Federal Court was bound to conclude that TPG had established
unfairness in the entire process once it established that criteria 3.3.3 and
3.3.5 had been unfairly evaluated. The Federal Court disagreed in light of the
fact that, in making these comments in TPG FCA, this Court was ruling on
a summary judgment motion and thus decided only if there was sufficient evidence
for the matter to proceed to trial, as opposed to deciding the issue on the merits.
The Federal Court also noted that the evidence before it was different from
that which had been before this Court in TPG FCA as TPG had not called
the expert witness to testify at trial who had opined on the unfairness in the
bid assessment process in an expert report filed on the summary judgment motion
(Reasons at paras. 147-148).
[13]
Third, the Federal Court concluded that the
breach of the duty of fairness in respect of bid criteria 3.3.3 and 3.3.5 did
not give rise to any compensable damages as the impugned criteria scores were
numerically inconsequential. More specifically, the Court found that even if TPG
had received full marks for these criteria, CGI’s bid would still have been the
highest-rated (Reasons at para. 146).
[14]
Fourth, the Federal Court held that TPG had not
established that CGI’s bid was non-compliant (Reasons at paras. 175, 180, 195,
212). TPG’s assertion of CGI’s non-compliance turned on the mandatory criterion
set out in section A. 24 of the RFP. It provides as follows:
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A. 24 Status of
Resources:
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By submitting a
proposal, the Bidder is certifying that either:
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(i) all the
individual resources proposed are employees of the Bidder; or
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(ii) in the case
of any individual proposed who is not an employee of the Bidder, the Bidder
is certifying that it has written permission from such person (or the
employer of such person) to propose the services of such person in relation
to the work to be performed in fulfillment of this requirement and to submit
such person’s résumé to the Contracting Authority in connection with this
solicitation. During the bid evaluation, the Bidder must upon the request of
the Contracting Authority provide a copy of such written permission, in
relation to any or all non-employees proposed. Failure to comply with such a
request may lead to disqualification of the Bidder’s proposal.
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[15]
TPG took the position that this provision
required bidders at the time of the bid to have engaged all of the resources required
to perform services under the RFP. TPG argued that CGI had failed to meet this
requirement because it had not engaged such resources by this time and, indeed,
had improperly centred its bid on the plan to recruit TPG’s personnel who had
been performing services under the predecessor contract.
[16]
TPG also asserted that CGI had failed to provide
the requisite resources by the transition time, as required by the RPF, and
that at the time of the contract award the Crown knew CGI would not be able to
do so. TPG therefore asserted that the Crown had knowingly accepted a non-compliant
bid. TPG premised its case on these points on the fact that it had obtained contractual
commitments from its existing subcontracted personnel and employees that
purported to prevent them from providing resources to assist competitors during
and for some period of time following the tendering process (Appeal Book, Vol.
10 at pages 3084-3089).
[17]
The Federal Court rejected these arguments.
[18]
On the contractual interpretation issue, it held
that section A. 24 of the RFP did not oblige a bidder to establish that it had
engaged or hired any more than 10 of its resources as of the date of its bid, but
instead only required a bidder to establish that it had the corporate capacity
to engage the other required resources by the time it would be called upon to provide
their services. In so concluding, the Federal Court thoroughly reviewed the voluminous
RFP, its evaluation criteria matrix as well as PWGSC’s answers to some of the
206 questions posed by the bidders (Q & As), which form part of the RFP
(Reasons at paras. 162-163, 166-175).
[19]
On the assertions that TPG had breached the
requirement to have engaged the required resources by the time of transition
and that the Crown knew that CGI would not be able to do so, the Federal Court found
that there was no failure by CGI to have the required resources in place by the
end of the transition period (Reasons at para. 212). The Federal Court
determined that the RFP and several of the Q & As established that the
transition period required by the RFP was fluid and was to take place gradually;
the Federal Court determined that the transition period in fact had stretched from
December 22, 2007 to March 28, 2008 (Reasons at paras. 207-212). Finally, the
Federal Court held that there was no evidence that the Crown knew that CGI
would not be able to provide the required resources by the end of the
transition period and held that the above-detailed terms that TPG had obtained from
its existing personnel did not prevent CGI from including a proposal to recruit
these individuals as part of its bid (Reasons at paras. 164-166, 196-198).
[20]
In terms of costs, the Federal Court ordered TPG
to pay costs, inclusive of disbursements, in the amount of $611,303.16. This
amount was based on Column IV of the Federal Courts Rules, SOR/98-106,
Tariff B [the Tariff], which the Federal Court found appropriate in light of
the success of the Crown, the complexity of the issues and a settlement offer in
which the Crown had offered to settle by having the action dismissed without
costs.
II.
The Positions of the Parties
[21]
In its appeal, TPG submits that the Federal
Court erred on the jurisdictional issues and also in its assessment of the
merits of TPG’s claim. In some instances, the arguments made by TPG in support
of its appeal were not made to the Federal Court or asserted in TPG’s Fresh
Amended Statement of Claim. In addition, as is more fully discussed below,
although TPG casts the errors that it alleges the Federal Court made in
assessing the merits of its case as being errors of law, in some respects TPG seeks
to have this Court reach conclusions that would require setting aside many of
the factual determinations made by the Federal Court that TPG does not contest.
In other instances, TPG’s arguments are premised on factual assertions that
find no support in the Federal Court’s findings.
[22]
On the jurisdictional point, TPG argues that the
Federal Court erred in failing to apply the doctrine of issue estoppel and in
failing to find that Justice Near’s ruling in TPG FC determined the
jurisdictional argument in its favour. It argues in the alternative that the
Federal Court erred in finding it should decline to exercise its jurisdiction,
especially after having conducted a multi-day trial.
[23]
In terms of the determinations made on the
merits, TPG contests both the Federal Court’s finding that TPG suffered no
compensable damages and the Federal Court’s finding that CGI’s bid was
non-compliant.
[24]
As concerns its damages argument, TPG claims
that, having found a breach of fairness in terms of criteria 3.3.3 and 3.3.5,
the Federal Court ought either have required the Crown to re-do the bid process
or ought to have ordered damages on a general basis for unfairness in the bid
process. It further asserts that the holding of this Court in TPG FCA
required the Federal Court to find the entire bid process unfair when it
determined that the evaluators had unfairly applied criteria 3.3.3 and 3.3.5 to
TPG. TPG also relies on several CITT decisions in support of the assertion that
the Federal Court ought to have made a general damages award for unfairness in
the bid process.
[25]
TPG further submits that the Federal Court erred
in law in its treatment of the breaches related to criteria 3.3.3 and 3.3.5.
TPG argues that, in assessing whether TPG suffered compensable damages, the
Federal Court should not have considered the impact of awarding TPG full points
for these criteria but rather should have considered the impact of both
awarding additional points to TPG for the two criteria and decreasing
CGI’s scores for these criteria. It claims that, had this occurred, its bid
would have been the highest-rated. However, as is more fully discussed below,
it called no evidence in support of this assertion and did not even put it in
cross-examination to the Crown witness, Robert Tibbo, who testified as to the
impact of various different rating scenarios. Moreover, it appears that this
assertion was not put to the Federal Court as an alternative for the Court to
consider and was not ever mentioned in the Fresh Amended Statement of Claim
even though TPG there posited several other rating scenarios.
[26]
On the contract interpretation issues, TPG
asserts that contract interpretation is a matter of law and cites in support of
this position case law that has been overtaken by the decisions of the Supreme
Court of Canada in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC
53, [2014] 2 S.C.R. 633 [Sattva] and Ledcor Construction Ltd. v.
Northbridge Indemnity Insurance Co., 2016 SCC 37, 269 A.C.W.S. (3d) 753 [Ledcor].
It erroneously asserts that the Federal Court’s interpretation of the RFP is
reviewable on the correctness standard. TPG further argues that the Federal
Court erred in its interpretation of the RFP because it improperly ignored Q
& A 120, which provides:
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Question 120:
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[…]
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If the selected
bidder is unable to deliver required resources that meet the mandatory
qualifications identified in Part III of the Statement of Requirements at the
time of contract award or at the time of transition, will the contract be
terminated at that point?
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Answer 120:
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Yes.
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[27]
TPG argues that the foregoing Q & A gave
rise to a contractual commitment to bidders that the Crown would terminate the
contract if the selected bidder were unable to deliver the required resources
at the time of contract award or at the time of transition and that such
commitment formed part of Contract A. TPG submits that this Q & A required
a bidder to have all its resources in place at the time of contract award. It
further says that this clause was breached as CGI did not have its resources in
place by that date or by the transition date. However, TPG has not contested
the Federal Court’s findings as to the character and length of the transition
period. Nor does it contest the Federal Court’s factual determination that CGI
had all the required resources in place by the end of the transition period.
[28]
In terms of the damages it seeks on appeal, TPG
clarified that although it requested an award of damages from this Court in the
amount of $250,000,000.00, the quantum of damages it could claim to have established
at trial ranged only from $300,000.00 to $12,000,000.00. It thus seeks this
Court to make an order in this range.
[29]
Finally, in terms of its costs appeal, TPG confirmed
during argument that it filed this second appeal out of an abundance of caution
and seeks merely to have the costs award against it overturned in the event it
is successful in its appeal on the merits, in which event it seeks a costs
award in its favour under Column III of the Tariff. No separate materials were filed
on the costs appeal.
[30]
For its part, in its cross-appeal, the Crown seeks
to vary the Federal Court’s judgment from one that dismissed the appeal with
costs to one that provides that “[t]he action for breach
of contract is dismissed in its entirety on all grounds, including that [TPG’s]
bid was fairly and equitably evaluated and there was no breach of Contract A”.
As counsel for the Crown conceded during the hearing of this appeal, this cross-appeal
seeks to appeal the portion of the Reasons with which it takes issue. However,
no appeal lies from a court’s reasons, but, rather, only from its judgment or
order: Teva Canada Ltd. v. Canada (Minister of Health), 2012 FCA 106 at
paras. 43-46, 214 A.C.W.S. (3d) 587; Froom v. Canada (Minister of
Justice), 2004 FCA 352 at para. 11, [2005] 2 F.C.R. 195. Thus, as the Crown
conceded, the cross-appeal should be dismissed as irregular but its supporting
arguments may be considered as part of the Crown’s response in the event this Court
decides to intervene in respect of the Federal Court’s finding that TPG failed
to prove that it suffered damages. As I have concluded that TPG’s appeal should
be dismissed, there is no need to consider the arguments made by the Crown in
its cross-appeal.
III.
Analysis
[31]
Turning to the appellant’s appeal, as the
Federal Court effectively took jurisdiction and decided the case on the merits,
I see no need to rule on the issue estoppel or jurisdictional arguments
advanced by the appellant, other than to note that I agree with the Federal
Court that there is concurrent jurisdiction between it and the CITT over the
issues raised in TPG’s claim.
[32]
The jurisdiction of the CITT over such claims
has already been recognized by this Court in Siemens Westinghouse Inc. v.
Canada (Minister of Public Works and Government Services), 2001 FCA 241 at
paras. 20-24, 202 D.L.R. (4th) 610. Likewise, the jurisdiction of the courts to
adjudicate breach of contract claims, including that of the Federal Court where
the claim is made against the federal Crown, cannot be contested. Indeed,
claims for breaches of Contract A in a procurement process have been the
subject of actions before courts: Canada (Attorney General) v. TeleZone Inc.,
2010 SCC 62, [2010] 3 S.C.R. 585; Tercon Contractors Ltd. v. British
Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69; Double
N Earthmovers Ltd. v. Edmonton (City), 2007 SCC 3, [2007] 1 S.C.R. 116; M.J.B.
Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619,
170 D.L.R. (4th) 577 [M.J.B.].
[33]
It is unnecessary in this case to go further and
decide when, if ever, it might be appropriate for the Federal Court to decline
to exercise its jurisdiction in favour of the CITT in light of the
determination I have reached on the appeal from the Federal Court’s decision on
the merits. That said, I should not be taken as endorsing the way in which the
Federal Court proceeded in this case in deciding the jurisdictional issue at
the end of a lengthy trial as opposed to at the outset of the process.
[34]
As concerns the merits, I turn first to TPG’s
arguments challenging the Federal Court’s conclusion that the breach of the
duty of fairness did not give rise to any damages.
[35]
The argument that the Federal Court ought to
have found a generalized breach of the duty of fairness by reason of this
Court’s decision on the summary judgment motion in TPG FCA must be
dismissed for essentially the same reasons as given by the Federal Court as the
decision in TPG FCA cannot be read to infer any presumption in favour of
TPG. The brief comments made in paragraph 10 of the TPG FCA decision on
which TPG relies are simply obiter made in the context of an appeal of a
summary judgment motion, where TPG had the evidentiary burden of putting
forward evidence showing that there was a genuine issue for trial. Accordingly,
this Court was not tasked with deciding the issue on the merits; nor did
it have before it the same evidentiary record that was before the Federal Court
at trial. Thus, contrary to what TPG argues, this Court’s obiter comments
do not mean that TPG is entitled to damages merely by showing unfairness in
relation to the two disputed evaluation criteria.
[36]
As concerns the assertion that TPG was entitled
to damages for lack of integrity in the bid process or to an order for the re-conduct
of that process in the same way as might be granted by the CITT, quite apart
from the lack of legal authority in support of such assertions, neither remedy
was sought by TPG from the Federal Court or in TPG’s Fresh Amended Statement of
Claim. TPG therefore cannot seek these remedies on appeal or claim that the
Federal Court erred in refusing to grant them. Rather, its claim was limited to
a claim for damages flowing from the alleged breach of Contract A.
[37]
In determining that TPG had not established any
damages flowing from such breach, the Federal Court applied the correct legal
principles. In the procurement context, damages are assessed on general
contractual principles (see for example Martel Building Ltd. v. Canada,
2000 SCC 60 at para. 102, [2000] 2 S.C.R. 860 [Martel]; Naylor Group
Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58 at para. 73, [2001] 2
S.C.R. 943; M.J.B. at para. 57; Canada (Attorney General) v. Envoy
Relocation Services, 2007 FCA 176 at para. 29, 361 N.R. 367). It is
a well-established principle of contract law that a plaintiff bears the burden
of establishing a loss on the balance of probabilities to prove damages (see Pfizer
Canada Inc. v. Teva Canada Ltd., 2016 FCA 161 at para. 55, 483 N.R. 275,
relying on Red Deer College v. Michaels, [1976] 2 S.C.R. 324, 5 N.R. 99).
This is consistent with the Supreme Court of Canada’s decision in Martel, where,
despite having found a breach of Contract A, the Court found that the
bidder was not entitled to damages since Martel’s bid would still have lost
even if the breach had not occurred (Martel at para. 102). Accordingly,
for TPG to prove a loss, it was required to demonstrate, on a balance of
probabilities, that it would have won the bid had the breach not occurred.
[38]
Given that TPG led no evidence to prove that
PWGSC unfairly evaluated any of the other criteria in the RFP besides criteria
3.3.3 and 3.3.5, despite having the benefit of discovery and of a trial during
which it had the opportunity to cross-examine the five evaluators, it is my
view that the Federal Court did not make any palpable and overriding error in
finding that TPG had only established a breach of these two criteria.
[39]
Additionally, I see no error in the way in which
the Federal Court evaluated the impact of the breach of these two criteria. The
Crown called evidence to show the impact of neutralizing the two criteria
through the testimony of Robert Tibbo. His evidence demonstrated that even if
TPG had been awarded full marks for these criteria, CGI’s bid would still have
been the highest rated. Mr. Tibbo also testified as to the impact of several rating
alternatives raised by TPG in its Fresh Amended Statement of Claim,
demonstrating that none of them would have resulted in TPG being awarded the
contract. There is a complete lack of evidentiary foundation for TPG’s suggestion
that the Federal Court erred in failing to assess the impact of the breach of
criteria 3.3.3 and 3.3.5 by both reducing CGI’s score for the criteria and also
increasing TPG’s score to 100% in respect of them. In light of the complete lack
of evidence to support this assertion – and the fact that it was not advanced
before the Federal Court – the Federal Court most certainly did not err in
failing to consider this scenario.
[40]
Moreover, I see no basis in logic for TPG’s assertion
that its scores should have been increased while CGI’s scores should have been
decreased. The evidence showed that the bids of TPG and the third bidder had
been reassessed for criteria 3.3.3 and 3.3.5 while CGI’s might not have been.
The consensus scores for TPG and the other bidder were less than the average of
the individual evaluators’ scores, while CGI’s consensus scores did not
decrease in the same way. In such circumstances, it seems to me that the impact
of the unfairness in evaluating the two criteria may be neutralized by giving
all bidders either full marks or no marks for the two criteria. Giving full
marks to some bidders while reducing the scores of other bidders is not
appropriate as this would result in the scores for the impugned criteria being weighted
in a disproportionate manner. Indeed, as noted by the Supreme Court of Canada
on a similar point in the context of a discrepancy in the financial evaluation
criterion at issue in Martel, the proper methodology for assessing the
impact of the breach was to ensure that either all bids or no bids included the
item at issue (Martel at para. 102).
[41]
I therefore do not believe that the Federal
Court committed any reviewable error in the way in which it evaluated the
impact of the unfairness in respect of criteria 3.3.3 and 3.3.5 or in its
determination that such unfairness did not give rise to any compensable damages
suffered by TPG.
[42]
I now turn to TPG’s arguments concerning the
alleged non-compliance of CGI’s bid. Its assertion that the Federal Court’s
interpretation of the RFP is reviewable on the correctness standard must be
dismissed as the Supreme Court of Canada has held that interpretation of a
contract like the RFP is a matter of mixed fact and law and therefore
reviewable on the palpable and overriding error standard: Ledcor at
paras. 24-26: Sattva at paras. 47, 50, 57; Housen v. Nikolaisen,
2002 SCC 33 at paras. 26-37, [2002] 2 S.C.R. 235.
[43]
I see no error – much less a palpable and
overriding one – in the way in which the Federal Court interpreted the section A.24
requirement in the RFP. There was no need for the Federal Court to have
specifically mentioned Q & A 120 when interpreting what the RFP obliged in
respect of when the required resources were to be in place. This Q & A says
nothing about what these requirements are and speaks instead to the impact of a
breach of them. Rather, the relevant provisions for determining what the RFP
required were those noted by the Federal Court, and include the provisions
regarding transition and Q & As 12, 61, 141 and 170. Q & A 170 reads as
follows:
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Question 170:
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[…]
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This response
now requires the successful bidder to prepare resumes and related grids for
145 resources within 5 days of contract award. This is a new requirement, and
an unrealistic request that favors the incumbent. In the interest of starting
the project in a manner that allows both parties to succeed, we suggest that
the Amendment 4 Question 42 and Amendment 9 Question 82 requirements be
removed. This will allow for the focus to be on the Transition plan in the first
few days rather than just on naming resources.
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Answer 170:
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The Bidder is
to provide resumes for all 145 resources and submit the resumes with their
finalized transition plan, which is within 10 days of contract award. Each resume proposed will be evaluated against the classification
requirements detailed in Annex A Part III for each position. In order for
Canada to properly evaluate the transition plan after contract award it is
imperative that Canada be assured that the personnel performing the transition
are qualified as per the classification requirements.
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[My emphasis.]
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[44]
These provisions all support the interpretation that
the RFP required only that a bidder needed to establish that it had recruited
10 qualified resources by the time of the bid and that it had the corporate
capacity to recruit the others by the end of the transition period. The Federal
Court thus did not err in its interpretation of the requirements of the RPF.
[45]
Even if one could read Q & A 120 as a
promise by the Crown that it would terminate the RFP if the successful bidder
did not have the required resources in place by the transition time as TPG now argues,
the Federal Court found that CGI met its obligations in this regard as the
transition period was extended by the Crown under the provisions in the RPF
that allowed it to do so and all required resources were on board by the end of
the transition period. TPG has not challenged these findings, which appear to
be unassailable as they are grounded in the evidence (Appeal Book, Vol. 2 at pages
316-317 (RFP provision B.10.3); Appeal Book, Vol. 11 at pages 3535-3539; Appeal
Book, Vol. 13 at pages 3971-3973).
[46]
I therefore find that the Federal Court did not
commit any reviewable error in its determination that TPG had failed to
establish that CGI’s bid was non-compliant. Thus, there is no basis to
interfere with the Federal Court’s conclusions on the merits of TPG’s claim.
[47]
Finally, there is no reason to disturb the Federal
Court’s costs award because TPG only seeks to overturn it in the event of its
success on this appeal. In any event, I see no reviewable error in the way in
which the Federal Court reached its costs assessment.
[48]
It follows that I would dismiss these appeals
and the cross-appeal. The parties agreed that costs should be fixed in the
amount of $5,500.00, which I believe appropriate in light of the issues and
volume of materials put before this Court. I propose that there be a single set
of costs for the two appeals and the cross-appeal in favour of the Crown in the
agreed-upon amount as in essence there really was only one appeal that was
argued before this Court. Thus, I propose to dismiss the appeals and
cross-appeal, with a single set of costs in favour of the Crown in the
all-inclusive amount of $5,500.00.
“Mary J.L. Gleason”
“I agree.
Johanne Gauthier
J.A.”
“I agree.
Richard Boivin
J.A.”
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