INTERNAL TRADE |
Seprotech Systems Inc. v. Peacock Inc.
A-612-02, A-632-02
2003 FCA 71, Evans J.A.
11/2/03
18 pp.
Judicial review of decision of Canadian International Trade Tribunal (CITT) holding Public Works and Government Services Canada (PWGSC) had improperly awarded contract to Seprotech Systems Inc. and recommending termination of contract--Contract in question for supply of services to overhaul, repair and maintain equipment installed on Canadian Forces' vessels for converting sea water into fresh water for use on board ship--After Seprotech awarded contract, respondent Zenon Environmental Inc. complained PWGSC breached Agreement on Internal Trade, Art. 506(6), requiring tender documents to clearly identify requirements of procurement--Zenon alleged Seprotech not complying with mandatory provision in request for proposal (RFP) requiring bidders to establish that, if awarded contract, would have access to components required to perform it--Seprotech not including written statement from one of original equipment manufacturers of important component of contract-- Seprotech's tender referred to verbal assurance from supplier --CITT holding "firm indication that all components required to perform the required work are accessible to the bidder" contemplating some form of written evidence components available to bidder--Whether CITT's interpretation of "firm indication" requirement patently unreasonable--CITT stated written assurance of availability not required with respect to components either available commercially "off-the-shelf" or manufactured by bidder--This interpretation clearly shows CITT very alive to need to interpret requirement in manner consistent with purpose--Also reasonable for CITT not to regard letter from supplier to Seprotech as fulfilling "firm indication" requirement--Non-compliant bid could not be retroactively revived by letter--Seprotech not providing any satisfactory explanation of why letter not included with tender documents--Accordingly, given both wording and purpose of badly drafted "firm indication" requirement, CITT's interpretation not patently unreasonable--Allegation denial of procedural fairness unfounded--Seprotech arguing denied fair hearing when CITT refused to accept Seprotech's reply to Zenon's response--Seprotech had reasonable opportunity to participate in CITT's decision-making process--(1) Seprotech intervener in complaint against PWGSC--Interveners do not generally have right to reply to submissions of party made in response to intervener--(2) Time important in contract procurement, and CITT must complete task within fairly tight schedule--(3) Seprotech had already made two submissions to CITT and did not suggest third intended submission rebutted new evidence or arguments adduced by ZENON in reply--CITT recommended termination of contract and re-evaluation of remaining bids--By providing no explanation of choice of remedy, CITT failed to give adequate reasons for decision--Omission effectively denied applicants right to judicial review of remedial aspect of CITT's decision-- Hence, this part of decision should be set aside--Act lists four factors CITT must consider when fashioning remedy-- Without reasons, Court cannot ensure CITT discharged statutory duty--Following considerations led Court to believe termination of contract not only possible remedy CITT could have awarded: extent of Seprotech's non-compliance with ambiguous provision in RFP, evidence of supplier's willingness to supply equipment, possibility other bids will not be found to be compliant, and uncertainty surrounding precisely which components specified in hundreds of technical pages accompanying RFP subject to written assurance of availability--Hence, CITT must redetermine appropriate remedy--Application granted in part--CITT's decision recommending termination of contract and limited re-evaluation of remaining bids set aside--Agreement on Internal Trade, Canada Gazette, Part I, Vol. 129, No. 17 (29 April 1995), Art. 506(6).