CGI INFORMATION SYSTEMS AND MANAGEMENT CONSULTANTS INC.

CGI INFORMATION SYSTEMS AND MANAGEMENT CONSULTANTS INC.
v.
CANADA POST CORPORATION AND INNOVAPOST INC.
File No. PR-2014-006

Order and reasons issued
Tuesday, June 24, 2014

TABLE OF CONTENTS

 

IN THE MATTER OF a complaint filed by CGI Information Systems and Management Consultants Inc. pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.);

AND FURTHER TO a motion by CGI Information Systems and Management Consultants Inc. seeking an order directing Canada Post Corporation and Innovapost Inc. to produce certain documents.

BETWEEN

CGI INFORMATION SYSTEMS AND MANAGEMENT CONSULTANTS INC. Complainant

AND

CANADA POST CORPORATION AND INNOVAPOST INC. Government Institutions

ORDER

The Canadian International Trade Tribunal grants the motion in part.

Having reviewed the motion filed by CGI Information Systems and Management Consultants Inc. dated April 14, 2014, the submissions on the motion by Canada Post Corporation and Innovapost Inc. dated May 23, 2014, and the submissions by CGI Information Systems and Management Consultants Inc. dated June 4, 2014, the Canadian International Trade Tribunal orders Canada Post Corporation and Innovapost Inc., under subsection 17(2) of the Canadian International Trade Tribunal Act, to file with the Tribunal, no later than June 30, 2014, the following documents and information that relate to Solicitation No. 2012-SDL-006:

  • the methodology actually used by the evaluators to evaluate the proposals submitted in response to the Phase 2 requirements, including all criteria used to evaluate proposals, all written instructions provided to evaluators, any evaluation plan or other guidance provided to evaluators and the scoring sheets used by evaluators to evaluate the proposals;
  • with respect to the evaluation of CGI Information Systems and Management Consultants Inc.’s proposal, the individual scoring sheets and notes of each evaluator (i.e. the raw data regarding CGI Information Systems and Management Consultants Inc.’s evaluation), the points achieved by CGI Information Systems and Management Consultants Inc. with respect to each evaluation criterion at each stage of the Phase 2 requirements, the consensus scoring sheets and notes from any consensus evaluation, and all notes, minutes, memoranda or other documents produced by evaluators in evaluating CGI Information Systems and Management Consultants Inc.’s proposal; and
  • any documents reflecting evaluators’ discussions about the scoring of proposals as compared to one another; however, documents reflecting evaluators’ discussions about the evaluation of any individual proposal other than that of CGI Information Systems and Management Consultants Inc. need not be filed.

If the documents contain information that Canada Post Corporation and Innovapost Inc. wish to be kept confidential, they should consult subsection 46(1) of the Canadian International Trade Tribunal Act and proceed accordingly.

Stephen A. Leach
Stephen A. Leach
Presiding Member

Gillian Burnett
Gillian Burnett
Secretary

STATEMENT OF REASONS

  1. On April 14, 2014, CGI Information Systems and Management Consultants Inc. (CGI) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act,[1] alleging that Canada Post Corporation, through its subsidiary, Innovapost Inc. (together, Canada Post), breached its obligations under the North American Free Trade Agreement[2] in relation to a Request for Proposal (RFP), Solicitation No. 2012-SDL-006.
  2. Specifically, CGI alleged that Canada Post (1) failed to provide CGI with pertinent information concerning the reasons for not selecting its tender and the relevant characteristics and advantages of the tender selected, contrary to Article 1015(6) of NAFTA, and (2) departed from the evaluation plan by applying weighting criteria to sections 5.2.1, 5.2.2, 5.3.1 and 5.3.2 that were not disclosed in the solicitation documents, by using two distinct evaluation teams to evaluate interrelated requirements contained at Stage 7 and Stage 8 of the evaluation process of the Phase 2 requirements, and by limiting the evaluators’ revisiting of the Stage 7 and Stage 8 scores to only site visits, contrary to Articles 1013(1) and 1015(4)(c) and (d).
  3. CGI’s complaint included a motion requesting an order pursuant to subsection 17(2) of the CITT Act requiring Canada Post to produce the following documents and information:

(a)  the identity of the evaluators who evaluated the proposals at each stage of the Phase 2 requirements, their qualifications and their relationship, if any, with the winning bidder;

(b)  the methodology actually used by the evaluators to evaluate the proposals submitted in response to the Phase 2 requirements, including all criteria used to evaluate proposals, all written instructions provided to evaluators, any evaluation plan or other guidance provided to evaluators and the scoring sheets used by evaluators to evaluate the proposals;

(c)  with respect to the evaluation of CGI’s proposal, the individual scoring sheets and notes of each evaluator (i.e. the raw data regarding CGI’s evaluation), their identities, the points achieved by CGI with respect to each evaluation criterion at each stage of the Phase 2 requirements, the consensus scoring sheets and notes from any consensus evaluation, and all notes, minutes, memoranda or other documents produced by evaluators in evaluating CGI’s proposal;

(d)  with respect to the evaluation of the winning proposal, the individual scoring sheets and notes of each evaluator (i.e. the raw data regarding the evaluation of the selected proposal) and their identities, the consensus scoring sheets and notes from any consensus evaluation, all notes, minutes, memoranda or other documents produced by evaluators in evaluating the selected proposal, the points achieved by the selected proposal with respect to each evaluated criterion at each evaluation stage of the Phase 2 requirements, the total points obtained by the selected proposal, the evaluated price of the selected proposal, the selected proposal (subject to confidentiality issues) and a description of relevant characteristics and advantages of the selected proposal; and

(e)  such other documents in the possession, power or control of Canada Post that must be disclosed to meet its obligations under Article 1015(6)(b) of NAFTA or that are otherwise necessary to resolve this complaint.

  1. Under subsection 17(2) of the CITT Act, the Tribunal may order the production of documents or information relevant to the grounds of complaint. This kind of order enables the Tribunal to obtain and examine exhibits or documents in the context of exercising its jurisdiction,[3] i.e. in procurement cases, determining the validity of the particular grounds of complaint before it. In this respect, the relevance of documents or information to the grounds of complaint is a separate question from, and does not depend on, the extent of Canada Post’s obligations to provide pertinent information to unsuccessful bidders under Article 1015(6) of NAFTA. As such, for the purposes of this order, the Tribunal has not taken into account the parties’ arguments concerning the scope of Article 1015(6) of NAFTA, and this decision does not pre‑determine the Tribunal’s decision on the merits, to be made in due course, regarding whether Canada Post breached its obligations under that article in relation to this solicitation.
  2. Having considered the initial motion filed by CGI requesting the production of documents, as well as the submissions on the motion by Canada Post dated May 23, 2014, and the reply submissions on the motion by CGI dated June 4, 2014, the Tribunal finds that the following documents are relevant to the grounds of complaint and must be produced by Canada Post:
  • the methodology actually used by the evaluators to evaluate the proposals submitted in response to the Phase 2 requirements, including all criteria used to evaluate proposals, all written instructions provided to evaluators, any evaluation plan or other guidance provided to evaluators and the scoring sheets used by evaluators to evaluate the proposals;
  • with respect to the evaluation of CGI’s proposal, the individual scoring sheets and notes of each evaluator (i.e. the raw data regarding CGI’s evaluation), the points achieved by CGI with respect to each evaluation criterion at each stage of the Phase 2 requirements, the consensus scoring sheets and notes from any consensus evaluation, and all notes, minutes, memoranda or other documents produced by evaluators in evaluating CGI’s proposal; and
  • any documents reflecting evaluators’ discussions about the scoring of proposals as compared to one another; however, documents reflecting evaluators’ discussions about the evaluation of any individual proposal other than that of CGI need not be filed.
  1. With respect to CGI’s request for the information under (a) above, Canada Post provided the identity of the evaluators in the Government Institution Report. The qualifications of the evaluators and their relationships, if any, to the winning bidder are not relevant to the grounds of complaint and could have no bearing on the Tribunal’s determining whether the evaluation was carried out consistently with the evaluation plan published in the RFP or whether the debriefing provided to CGI met the requirements of Article 1015(6) of NAFTA.
  2. With respect to CGI’s request for the information under (d) above, the Tribunal finds that information pertaining to the evaluation of the winning proposal is not relevant to the grounds of complaint. While production of such documents might be helpful to the disposition of an allegation of bias, CGI has made no such allegation in this complaint.[4]
  3. However, the Tribunal finds relevant any documents reflecting evaluators’ discussions about the scoring of proposals as compared to one another. Documents reflecting evaluators’ discussions about the evaluation of any individual proposal other than that of CGI need not be filed. Accordingly, any such documents must be produced by Canada Post.
  4. Finally, with respect to (e) above, if CGI considers that any further documents are necessary to resolve the complaint, it can file another request with the Tribunal identifying such documents specifically and explaining their potential relevance to the grounds of complaint.
  5. If the documents contain information that Canada Post wishes to be kept confidential, it should consult subsection 46(1) of the Canadian International Trade Tribunal Act and proceed accordingly.
  6. On the basis of the foregoing, the Tribunal grants the motion in part.
 

[1].     R.S.C., 1985, c. 47 (4th Supp.) [CITT Act].

[2].     North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA].

[3].     See, for example, Ecosfera Inc. v. Department of the Environment (11 July 2007), PR-2007-004 (CITT) at para. 55.

[4].     In this respect, section 30.14 of the CITT Act requires that, in conducting an inquiry, the Tribunal must limit its consideration to the subject matter of the complaint.