Digests

Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services)

A-421-99

Evans J.A.

28/11/00

31 pp.

Judicial review of Canadian International Trade Tribunal's dismissal of complaint by Cougar Aviation Limited (Cougar) award of contract to Provincial Airlines Limited (PAL) by Public Works and Government Services (PWGSC) breach of Internal Trade Agreement--PAL providing maritime aerial surveillance services for Department of Fisheries and Oceans (DFO) under two five-year contracts--In 1998 PWGSC issuing Request for Proposals for continued provision of maritime aerial surveillance services to DFO--Minimum dash speed requirement reduced in response to letter from Cougar--PAL's bid $40 million; Cougar's bid $65 million--On October 9, 1998, last day for submission of bids, Cougar raising concerns about changes to mandatory requirements in letter--Bids evaluated by committee of four members: three from DFO, two of whom already knew PAL in official capacity, one from PWGSC--Although none of members of evaluation committee had technical aircraft expertise, decided did not need assistance of outside expert--Contract awarded to PAL January 8, 1999--On January 22 Cougar filed complaint with Tribunal--Tribunal held amendments to statement of work either minor or constituted clarifications; no jurisdiction to investigate allegation of reasonable apprehension of bias, as opposed to actual bias; dismissed other aspects of complaint as out of time--Application dismissed--(1) Tribunal not erring in dismissing Cougar's complaint award of contract to PAL vitiated by reasonable apprehension members of evaluation committee biased--(a) Tribunal erred in law in failing to consider impartiality complaint--In context of administrative procedure, "impartiality" normally includes appearance of impartiality--Would unduly fragment challenge to award of contract if unsuccessful bidder required to raise allegation of reasonable apprehension of bias on application for judicial review--Inconsistent with statutory scheme to interpret Tribunal's jurisdiction so narrowly--(b) Duty of fairness applies to tendering process for federal government procurement contracts: duty to hear those liable to be affected by adverse decision, and duty to be impartial--Duty of impartiality normally not limited to actual bias--What constitutes reasonable apprehension of bias depending on circumstances--Those evaluating bids must avoid conduct giving rise to reasonable apprehension of bias in favour of bidder based on two grounds: decision-making process for award of procurement contracts involving weighing of competing bids by reference to relatively objective criteria, as well as to more subjective assessment of suitability of bidders as potential service providers; application of more stringent test advances objectives of Agreement, in view of importance of transparency, fairness of process, and avoidance of "pork-barrelling" in award of procurement contracts--Inclusion on evaluation committee of DFO officials familiar with personnel of PAL as result of having worked with them during previous contracts, not in itself constituting reasonable apprehension of bias--Disqualification of civil servants with valuable, direct knowledge to contribute to decision not serving public interest in obtaining value for money in procurement contracts--Inclusion on evaluation committee of sufficient number of persons who do not know bidders (here, two out of four), adequate safeguard against "cronyism"--Nothing in nature of decision-making context to exclude normal requirement of common law that those to whom duty of fairness applies must avoid conduct giving rise to reasonable apprehension of bias--Finally, allegations of bias should be raised at earliest practicable opportunity or objection waived--Unsuccessful party cannot use bias to impugn validity of decision after administrative process allowed to run its course--(c) Facts not giving rise to reasonable apprehension of bias--(i) Within committee's discretion to decide whether needed outside expert advice based on decision-making context: minor discrepancy between dash speed of PAL's aircraft and original requirement, especially given somewhat imprecise concept of "dash speed"; that assessment came from competitor; amount of information before committee about bidders, equipment; importance of factors in award of contract other than dash speed of aircraft; successful tenderer obliged to demonstrate within 60 days of being awarded contract that equipment performing as required--(ii) Dash speed amendment relatively unimportant, and purpose to reflect more accurately needs of DFO, rather than to effect significant change to performance of specifications of aircraft--Not giving rise to reasonable apprehension of bias--Statement King Air 200 aircraft met DFO's requirements merely clarification of requirement in response to question from bidder; not stating only King Air 200 aircraft meeting DFO's requirements--Within committee's discretion to decide whether another extension of tendering period after dash speed amendment appropriate--Amendment not so fundamental duty of fairness requiring committee to grant it--Cumulatively grounds advanced for impugning impartiality, fairness not establishing breach of duty of fairness--(2) Not breach of duty of fairness for Tribunal to refuse to hold oral hearing into Cougar's complaint--Tribunal decided sufficient information on record to determine dispute without need for oral hearing--Oral hearing not required by duty of fairness merely because conflicting evidence on issue may make it difficult to resolve--Nature of decision to be made, issues in dispute not requiring oral hearing--Principal issue not one of credibility, but involved assessment of importance of removal of dash speed requirement for Cougar's bid, based on documentation--Given amount of material Tribunal had before it, nature of issue for which oral hearing sought, fact powers limited to making recommendations on whether contract should be cancelled, Tribunal could investigate Cougar's complaint in accordance with duty of fairness without holding oral hearing--Failure to request oral hearing fatal to Cougar's claim written procedure inadequate--(3) Tribunal not erring in law in holding, for purpose of Canadian International Trade Tribunal Procurement Inquiry Regulations, s. 6(2) applicant's October 9 letter not constituting "objection" on issues not specifically raised in it--S. 6(2) providing that, when potential supplier making objection about procurement process followed in respect of particular contract, may file complaint with Tribunal within 10 days of being denied relief by relevant government department--Tribunal holding October 9 letter only "objection" to those aspects of procurement process to which expressly refers; therefore s. 6(2) not applicable to other grounds of complaint filed after award of contract announced and s. 6(1) containing limitation period applicable to other objections--S. 6(1) requiring complaint be filed no later than 10 working days after day on which basis of complaint known--Reasonably open to Tribunal not to construe Cougar's letter of October 9 as general complaint about process, since specified particular matters with which Cougar dissatisfied--If informal procedure for settling complaint to be effective, objection must be described with sufficient specificity as to enable Department to deal with it--Tribunal not in error when held Cougar out of time--(4) Tribunal's findings of fact about which Cougar complains not made in perverse or capricious manner, or without regard for material before it--Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/93-602 (as am. by SOR/95-300, s. 2), s. 6--Canadian International Trade Tribunal Act, R.S.C., 1985 (4th Supp.), c. 47, s. 30.13(1) (as enacted by S.C. 1993, c. 44, s. 44)--Canadian International Trade Tribunal Rules, SOR/93-601, s. 105(1).