Docket: A-227-14
Citation:
2015 FCA 39
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CORAM:
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DAWSON J.A.
RYER J.A.
WEBB J.A.
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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TRITECH GROUP LTD.
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on February
4, 2015).
RYER J.A.
[1]
This is an application for judicial review of a
decision (File No. PR-2013-035 2014) of the Canadian International Trade
Tribunal (the “CITT”), dated March 31, 2014: 2014 CanLII 33813. The CITT
allowed a complaint by the Respondent, Tritech Group Ltd., that Public Works
and Government Services Canada (“PWGSC”) improperly rejected a bid that it made
in response to a Request For Standing Offer (the “RFSO”) that was issued by
PWGSC on behalf of the Department of Fisheries and Oceans.
[2]
The RFSO requested standing offers for the
supply of modular aluminium frames, and certain other related materials, and
their fabrication into modular building units of three different sizes (“the
Modular Building Units”).
[3]
The terms and conditions of the RFSO
(a)
required each bidder to make a standing offer
(“Standing Offer”) to sell the Modular Building Units for a period of 1 year,
with two one year options (“Standing Offer Duration Period”);
(b)
required the pricing for the Modular Building
Units (“Unit Pricing”) to be specified in Annex B to each Standing Offer and fixed
(“Fixed Pricing Condition”) throughout the Standing Offer Duration Period;
(c)
permitted PWGSC to accept the Standing Offer for
a 90 day period (“90 Day Acceptance Period”) after the closing date for
submissions of bids; and
(d)
permitted PWGSC to make a written request
(“Acceptance Period Extension Request”) to all responsive bidders for an
extension of the 90 Day Acceptance Period.
[4]
The Respondent submitted a Standing Offer which
specified the Unit Pricing in Annex B. The Respondent also included the
following two sentences (the “Impugned Sentences”) in Annex B, namely:
Material pricing is valid for 90 days. After 90
days the material pricing component of the bid will be indexed to North
American published aluminium price indices.
[5]
The issue in this application turns on the
interpretation of the Impugned Sentences.
[6]
PWGSC rejected the Respondent’s Standing Offer
as non-compliant on the basis that the Impugned Sentences were an impermissible
modification of the terms and conditions of the RFSO, in particular, the Fixed
Pricing Condition.
[7]
The Respondent filed a complaint with the CITT
and requested that the awarding of the contract be postponed but postponement
proved to be impossible. In its complaint, the Respondent alleged that the
Impugned Sentences did not relate to the Fixed Pricing Condition. Instead, the
Respondent asserted that they were meant to apply only if PWGSC made an
Acceptance Period Extension Request.
[8]
The CITT found that the Respondent would have
been bound by the Fixed Pricing Condition if its Standing Offer had been
accepted within the 90 Day Acceptance Period and, accordingly, PWGSC should not
have rejected the Respondent’s Standing Offer as non-compliant for the reason
stated by PWGSC. Because it was not possible to postpone the awarding of the contract,
the CITT fashioned a remedy, the particulars of which were not challenged in
this application.
[9]
In upholding the complaint, the CITT rejected
PWGSC’s interpretation of the Impugned Sentences as unreasonable and found:
(a)
the inclusion of the Impugned Sentences in Annex
B to the Respondent’s Standing Offer had “commercial reality” in the sense that
a bidder would want to review its pricing if it was given an Acceptance Period
Extension Request that would allow PWGSC to accept its Standing Offer after the
90 Day Acceptance Period;
(b)
the Impugned Sentences only referred to
“material pricing”, i.e. the pricing of the aluminium components of the Modular
Building Units, and nowhere else in the Respondent’s Standing Offer was there a
reference to such “material pricing”. Rather, all other pricing references in
the Standing Offer were to the Unit Pricing of the Modular Building Units and
that pricing was unaffected by the Impugned Sentences;
(c)
there was a “perfect correspondence” between the
90 day period expressed in the Impugned Sentences and the 90 day period in
which PWGSC was free to accept the Standing Offer, which was essentially
corroborative of the Respondent’s assertion, and the CITT’s view, that the
Impugned Sentences were not aimed at altering Unit Pricing, but were, instead,
intended to become operable only if PWGSC made an Acceptance Period Extension
Request; and
(d)
any confusion with respect to the meaning of the
Impugned Sentences might well have been avoided if PWGSC had requested a
clarification from the Respondent.
[10]
This Court is obliged to review the decision of
the CITT on the deferential standard of reasonableness. (See Defence
Construction (1951) Limited. v. Zenix Engineering Ltd., 2008 FCA 109.) This
means that we must consider whether there is “justification,
transparency and intelligibility” in the CITT’s reasoning and whether
its decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”.
(See Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, 2008 SCC 9 at para. 47.)
[11]
The Applicant contends that the CITT erred in
imposing a duty on PWGSC to seek a clarification in respect of the Respondent’s
insertion of the Impugned Sentences into Annex B of its Standing Offer. In our
view, the CITT did not base its decision on PWGSC’s decision not to seek such a
clarification. Rather, we interpret the CITT as saying that where a bid
contains language that is susceptible of more than one meaning, PWGSC is free
to form its own opinion with respect to the meaning of that language. However,
in doing so, it runs the risk of making an incorrect or unreasonable
interpretation that may have adverse consequences to it – a risk that may be
avoided by requesting a clarification with respect to the unclear language.
[12]
It is not contested that PWGSC had the authority
to reject the Respondent’s bid if it was non-compliant. The controversy in the
matter before us stems from the competing interpretations of the Impugned Sentences.
To succeed in this application, the Applicant must convince us that the
interpretation selected by the CITT is unreasonable.
[13]
To this end, the Applicant asserts that it was
unreasonable for the CITT to conclude that those sentences did not relate to or
modify the Fixed Pricing Condition. However, the only reason given in support
of this assertion appears to be that because the Impugned Sentences were
inserted into Annex B to the Respondent’s Standing Offer, which also contained
the Unit Pricing with respect to the Modular Building Units, those sentences
must be taken as applying to and modifying the Unit Pricing.
[14]
With respect, this assertion is unpersuasive and
does not establish that the CITT’s interpretation of the Impugned Sentences is
unreasonable.
[15]
In our view, the reasons of the CITT, referred
to in paragraphs 9(a), (b) and (c) above, provide a sufficiently transparent
and intelligible justification for its conclusion with respect to the meaning
of the Impugned Sentences. Moreover, we find that the CITT’s decision to
uphold the complaint falls within a range of acceptable outcomes.
[16]
Accordingly, we are of the view that the
application should be dismissed with costs, which the parties have agreed
should be $4,000.00.
"C. Michael Ryer"
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