Administrative law – Decisions of administrative tribunals – International Trade Tribunal – Government contracts – Procurement process – Approval process – Judicial review – Procedural requirements and fairness – Remedies
Bergevin v. Canada (Canadian International Development Agency),  F.C.J. No. 30, Federal Court of Appeal, January 23, 2009, Letourneau, Nadon and Pelletier JJ.A.
CIDA was involved in a project to assist the government of Morocco in developing community management procedures in certain regions. CIDA issued a request for summary proposals to obtain the services of a local governance consultant to monitor and advise on the progress of the support agency selected by CIDA to implement the project. Courtemanche was involved in the selection of the support agency ultimately awarded the contract for the project. Courtemanche was later one of the seven consultants who submitted a proposal to obtain the consulting contract. Bergevin came in third and Courtemanche was awarded the contract. Bergevin then complained to the Tribunal that Courtemanche was both unqualified and was not eligible to be awarded the consulting contract because of his prior involvement with the project. The Tribunal did not disqualify Courtemanche from the procurement process because he had not been involved in the planning process for the project. It did not consider the selection of the support agency for the project as part of the planning or implementation, but as something in between these steps. The Tribunal found that CIDA lacked transparency and tarnished the procurement process. It recommended the re-evaluation of the proposals, the elimination of certain criteria, the cancellation of Courtemanche’s contract and the award of the contract to Bergevin if he scored the most points. Alternatively, the Tribunal recommended that CIDA compensate Bergevin if it decided not to cancel Courtemanche’s contract. Prior to the hearing of the Appeal, the consulting services contract had been re-awarded to Courtemanche and he was implementing it.
Bergevin’s application for judicial review was allowed. The Tribunal erred in its interpretation of the contract. The clause in the request for summary proposals disqualifying those involved in the planning process from bidding on the consulting contract applied to Courtemanche. This clause was breached by CIDA in awarding the consulting services to Courtemanche. The Tribunal only had the power to make recommendations to CIDA. It did not exercise its remedial discretion in an abusive, unreasonable or illegal manner. However, because of the problems that would result from removing Courtemanche as monitor of the support agency, the best remedy was to return the matter to the Tribunal to determine how to compensate Bergevin.
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