Where a body of evidence suggests deficiencies beyond a petitioner’s proposal in a procurement process for contracts, the Canadian International Trade Tribunal (“Tribunal”) ought to have considered whether the evaluators’ procedures, in the procurement process, might have affected the integrity and efficiency of the procurement system more broadly than just the petitioner’s proposal. Additionally, the Tribunal ought to have considered the range of remedies, other than the remedy of compensation, sought by the petitioner.

Administrative law – Decisions of administrative tribunals – International Trade Tribunal – Government contracts – Bidding and tendering – Procurements – Approval process – Remedies – Judicial review – Standard of review – Reasonableness simpliciter

Almon Equipment Ltd. v. Canada (Attorney General), [2010] F.C.J. No. 948, 2010 FCA 193, Federal Court of Appeal, July 20, 2010, Nadon, Trudel and Stratas JJ.A.

In 2008, the federal Department of Public Works and Government Services (“Public Works”) began a procurement process for $10 million in contracts for military aircraft de-icing and glycol services. It invited tenders and it ultimately chose two separate competitors for each service. The petitioner was not chosen and the petitioner complained to the Tribunal alleging unfairness and deficiencies in the procurement process. The Tribunal accepted the petitioner’s complaint in part and ordered Public Works to compensate the petitioner for the glycol collection services.

The petitioner sought judicial review of the Tribunal’s exercise of remediation discretion. The parties agreed that the standard of review of the Tribunal’s decision is reasonableness. The Court held that the Tribunal made two reviewable errors. Firstly, although the Tribunal considered whether the evaluators applied the proper criteria to the petitioner’s proposal, it did not consider the larger issue of whether the evaluator’s record keeping and procedures might have affected the “integrity and efficiency of the competitive procurement system”. Secondly, although the Tribunal awarded the petitioner a compensatory remedy, it did not deal with any of the other remedies sought by the petitioner and therefore did not consider the appropriate remedy.

The Crown also sought judicial review of the Tribunal’s fact-finding. The Court held that the findings made by the Tribunal appeared internally inconsistent, incompatible or arbitrary and did not necessarily lead to the Tribunals ultimate conclusion.

The Court allowed the petitioner’s and Crown’s judicial review application and remitted the matter back to the Tribunal for re-determination.

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