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TABLE OF CONTENTS

• DETERMINATION OF THE TRIBUNAL
• STATEMENT OF REASONS
• • BACKGROUND
  • TRIBUNAL’S ANALYSIS
  • • Would B.E.S.T.E.’s proposal have ranked first in the re-evaluation?
    • Should the contract awarded to Mr. Courtemanche be cancelled?
    • Costs associated with the remand
  • DETERMINATION OF THE TRIBUNAL

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IN THE MATTER OF two complaints filed by Bureau d’études stratégiques et techniques en économique under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

AND FURTHER TO a recommendation of the Canadian International Trade Tribunal under section 30.15 of the Canadian International Trade Tribunal Act;

AND FURTHER TO a decision of the Federal Court of Appeal, which referred the matter back to the Tribunal with directions.

BETWEEN
BUREAU D’ÉTUDES STRATÉGIQUES ET TECHNIQUES EN ÉCONOMIQUE	Complainant
AND
THE CANADIAN INTERNATIONAL DEVELOPMENT AGENCY	Government Institution

Considering the reasons supporting the Federal Court of Appeal’s decision, the Canadian International Trade Tribunal determines that there are no grounds to recommend a new remedy for Bureau d’études stratégiques et techniques en économique.

Hélène Nadeau
Hélène Nadeau
Secretary

Tribunal Member:	André F. Scott, Presiding Member
Director:	Randolph W. Heggart
Senior Investigator:	Josée B. Leblanc
Counsel for the Tribunal:	Alain Xatruch
Complainant:	Bureau d’études stratégiques et techniques en
économique
Counsel for the Complainant:	Jean-Marc Bergevin
Government Institution:	Canadian International Development Agency
Counsel for the Government Institution:	Bernard Letarte
Andréane Joanette-Laflamme

Please address all communications to:

BACKGROUND

1. On April 24, 2007, Bureau d’études stratégiques et techniques en économique (B.E.S.T.E.) filed a complaint (File No. PR-2007-010) with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ concerning a procurement (Solicitation No. SEL-2007-A-032436-1) by the Canadian International Development Agency (CIDA) for the provision of consulting services of a monitor/advisor for the Local Governance Morocco project.

2. B.E.S.T.E. alleged: (1) that CIDA did not comply with clause 2.3 of the Request for a Summary Proposal (RFSP), which meant that there was an appearance of conflict of interest; and (2) that the successful bidder, Mr. Stéphane Courtemanche, did not have expertise in local governance and, moreover, that the successful bidder did not have the necessary expertise to act as consultant.

3. On May 2, 2007, the Tribunal notified the parties that it had accepted the complaint at issue, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.²

4. On May 4, 2007, B.E.S.T.E. filed with the Tribunal a second complaint (File No. PR-2007-012) concerning the same RFSP based on information that it did not have at the time of filing the first complaint. In its second complaint, B.E.S.T.E. alleged that CIDA had breached the contract award rules, more specifically the detailed proposal evaluation grid, the sub-requirements and their relative weighting, and, lastly, the absence of explanations justifying the scores that had been given.

5. On May 11, 2007, the Tribunal accepted the second complaint for inquiry and proposed to the parties an extension of the deadline for filing the Government Institution Report (GIR) for File No. PR-2007-010, in order to file a single GIR for the two complaints, since the Tribunal intended to deal with them concurrently. On May 15, 2007, CIDA made the request and, on May 16, 2007, the Tribunal granted the extension. As a result, on June 12, 2007, a single GIR was filed for these two complaints.

6. On September 5, 2007, the Tribunal made its determination. It found that the complaints were valid.³ However, the Tribunal was of the view that there had been no breach of clause 2.3 of the RFSP as alleged by B.E.S.T.E. As a remedy, the Tribunal recommended that CIDA re-evaluate all technical proposals that had been awarded a score equal to or greater than 60 percent in the first evaluation in order to eliminate all the consequences of the breach of the Agreement on Internal Trade ⁴ that had been identified by the Tribunal. To do so, the Tribunal recommended that CIDA form an evaluation team composed of new evaluators who had not been involved in any way in the procurement at issue or in a related procurement. The Tribunal also recommended that Requirements 10 and 11 of the RFSP be eliminated during the re-evaluation and that Requirements 4 and 7 of the RFSP be re-evaluated in accordance with its directions.

7. With regard to the measures to be taken following the re-evaluation, the Tribunal recommended the following:

. . .

87. Following the re-evaluation, if it is determined that the proposal of B.E.S.T.E. receives the highest number of points, the Tribunal recommends as follows:

that CIDA cancel the contract awarded to Mr. Courtemanche, that the contract be awarded to B.E.S.T.E. and that CIDA compensate B.E.S.T.E. for lost profits incurred for the portion of the contract already performed by Mr. Courtemanche;

alternatively, if CIDA decides not to cancel the contract with Mr. Courtemanche, that it compensate B.E.S.T.E. by an amount equal to the profit that it would have earned had it been awarded the full contract;

. . .

88. If it is determined after the re-evaluation, however, that the proposal of B.E.S.T.E. does not obtain the highest number of points, the Tribunal recommends that B.E.S.T.E. be awarded $7,500 for its costs incurred to prepare the bid . . . .

8. The Tribunal also awarded B.E.S.T.E. its reasonable costs incurred in preparing and proceeding with the complaints.⁵

9. On October 5, 2007, B.E.S.T.E. applied to the Federal Court of Appeal for judicial review of the determination made by the Tribunal on September 5, 2007.

10. On November 5, 2007, CIDA sent a letter to the Tribunal informing it that it had conducted the re-evaluation of the proposals as per the Tribunal’s recommendations. The proposal of Mr. Courtemanche, the winner of the current contract, ranked first. B.E.S.T.E.’s proposal finished third. As such, CIDA indicated that it had decided to continue the contract with Mr. Courtemanche and that a cheque for $7,500 had been sent to B.E.S.T.E. for its costs incurred in preparing the proposal.

11. On November 19, 2007, B.E.S.T.E. filed with the Tribunal a complaint (File No. PR-2007-068) regarding the re-evaluation conducted by CIDA. B.E.S.T.E. alleged: (1) that CIDA had breached the Tribunal’s determination issued on September 5, 2007; (2) that CIDA had placed itself in a conflict of interest situation by having only its staff re-evaluate the proposals; (3) that the evaluators who had taken part in the re-evaluation had no expertise in local governance; (4) that the re-evaluation of the proposals had been erroneous and unfair, particularly with regard to Requirement 1 of the RFSP; and (5) that Requirement 12 of the RFSP should have been eliminated during the re-evaluation.

12. On November 28, 2007, the Tribunal made its decision;⁶ it decided not to conduct an inquiry into the complaint for the following reasons. The Tribunal was of the view that it did not have jurisdiction to conduct an inquiry regarding the first and fifth grounds of complaint, that the third ground of complaint had not been filed within the time limits established by the Regulations, and that the second and fourth grounds of complaint did not disclose a reasonable indication that the procurement had not been carried out in accordance with the applicable trade agreements.

13. On December 3, 2007, Mr. Jean-Marc Bergevin, the sole owner and operator of B.E.S.T.E., applied to the Federal Court of Appeal for judicial review of the re-evaluation conducted by CIDA following the Tribunal’s recommendations.

14. On March 19, 2008, after CIDA filed a motion to strike, the Federal Court of Appeal dismissed, without costs, the application for judicial review on the ground that it involved, firstly, a decision by CIDA, which is not a federal board, commission or other tribunal listed in section 28 of the Federal Courts Act, and that it involved, secondly, the determination made by the Tribunal on September 5, 2007, for which an application for judicial review had already been filed.⁷

15. On January 23, 2009, the Federal Court of Appeal allowed the application for judicial review of the determination made by the Tribunal on September 5, 2007.⁸ It stated that there had been a breach of clause 2.3 of the RFPS and that Mr. Courtemanche’s proposal was inadmissible. Therefore, it referred the files back to the Tribunal for it to propose an appropriate remedy for B.E.S.T.E. This remedy was to take into account the reasons that supported the Federal Court of Appeal’s decision, including the following excerpt:

. . .

[34] This Court was informed at the hearing that the proposal re-evaluation had taken place in accordance with the Tribunal’s decision and that Mr. Courtemanche had once again ranked first. We are unaware of the applicant’s new ranking. However, we do know that Mr. Courtemanche’s proposal was inadmissible and should have been set aside from the outset so that it could not be resubmitted for re-evaluation, as it should not have been.

[35] This Court is also aware, as was the Tribunal, that the contract is currently being executed, as it has been for a rather significant period of time to date, and that substituting the monitor/advisor for the project while it is in progress may prove extremely problematic. The only reasonable remedy in the circumstances may perhaps be to adequately compensate the applicant.

[36] Considering the little, if not the complete lack of, information available to us following the re-evaluation that was done, I believe that the fairest and most equitable way of deciding the question would be to return the file to the Tribunal so that it may propose an appropriate remedy for the applicant that takes into account the fact that Mr. Courtemanche’s proposal was inadmissible, the applicant’s results from the proposal re-evaluation and the advisability of cancelling Mr. Courtemanche’s contract given how far the work has progressed.

. . .

16. On February 5, 2009, the Tribunal allowed the parties to file their submissions on the issue of the appropriate remedy by taking into account the Federal Court of Appeal’s reasons that supported its decision. On February 12, 2009, B.E.S.T.E. filed its submissions. On February 23, 2009, CIDA filed its submissions in response to B.E.S.T.E.’s submissions and, on February 27, 2009, B.E.S.T.E. filed its final submissions.

TRIBUNAL’S ANALYSIS

17. This remand raises two issues. First, the Tribunal must determine whether, taking into account the fact that Mr. Courtemanche’s proposal should not have been re-evaluated, B.E.S.T.E.’s proposal would have obtained the highest number of points in the re-evaluation. In the affirmative, it would open the door for the contract to be awarded to B.E.S.T.E. or for it to be compensated for the profit that it would have earned had it been awarded the contract. Second, the Tribunal must determine whether or not it is appropriate to cancel Mr. Courtemanche’s contract given how far the work has progressed.

Would B.E.S.T.E.’s proposal have ranked first in the re-evaluation?

18. In its letter of November 5, 2007, to the Tribunal, CIDA stated that Mr. Courtemanche’s proposal ranked first following the re-evaluation and that B.E.S.T.E.’s proposal finished third. It appears from the file that, even if Mr. Courtemanche’s proposal had been set aside from the re-evaluation process, B.E.S.T.E.’s proposal would still not have obtained the highest number of points.

19. The Tribunal reiterates that B.E.S.T.E. contended that CIDA had not re-evaluated the proposals in accordance with the Tribunal’s recommendations, which, in its opinion, invalidated the re-evaluation results. B.E.S.T.E. therefore asked the Tribunal not to rely on the re-evaluation results when recommending an appropriate remedy.

20. According to B.E.S.T.E., there is a legal vacuum that has caused it severe prejudice. This vacuum stems from the Tribunal’s decision not to conduct an inquiry into its complaint (File No. PR-2007-068) filed on November 19, 2007, concerning the re-evaluation conducted by CIDA and the Federal Court of Appeal’s dismissal of its application for judicial review dated December 3, 2007, due to lack of jurisdiction. In its view, the Tribunal’s refusal to review CIDA’s re-evaluation process in detail before using the results deprives it of the right to be heard and thereby breaches the principles of natural justice. B.E.S.T.E. also suggests that the referral of the present files back to the Tribunal by the Federal Court of Appeal perhaps now enables the Tribunal to reactivate File No. PR-2007-068 and consider the re-evaluation conducted by CIDA.

21. Finally, B.E.S.T.E. contends in its submissions that CIDA’s exclusion of Mr. Courtemanche’s proposal and a non-partisan reclassification of the other proposals would no doubt result in its proposal ranking first and in B.E.S.T.E. then being eligible for compensation.

22. In response to these submissions by B.E.S.T.E., CIDA notes that the re-evaluation results are not questioned by the Federal Court of Appeal and are not the subject of the referral of these files back to the Tribunal. Also, it reiterates that the Federal Court of Appeal’s decision in no way alters the decision not to conduct an inquiry into B.E.S.T.E.’s complaint, made by the Tribunal on November 19, 2007, nor the Federal Court of Appeal’s dismissal of the application for judicial review regarding the re-evaluation results. CIDA submits that there is res judicata regarding the part of B.E.S.T.E.’s arguments pertaining to the re-evaluation.

23. Thus, CIDA notes that an appropriate remedy in these files must take the re-evaluation results into account. In this respect, it reiterates that B.E.S.T.E.’s proposal ranked third in the re-evaluation and that, even if Mr. Courtemanche’s proposal were excluded, B.E.S.T.E. still would not obtain the highest number of points. Therefore, CIDA contends that B.E.S.T.E. cannot be awarded the contract or be compensated for lost profits.

24. Moreover, CIDA claims that B.E.S.T.E. has already been fairly compensated for the injury resulting from the deficiencies in the award process for the procurement at issue, indicating that it received $11,600, including $7,500 as an award for costs incurred in preparing its proposal and $4,100 as an award for costs incurred in preparing and proceeding with the complaints that it filed with the Tribunal.

25. The Tribunal cannot agree with B.E.S.T.E.’s argument to question the re-evaluation results. In fact, it is clear in these files that the results of the re-evaluation conducted by CIDA are not questioned by the Federal Court of Appeal and are not the subject of the present remand. In fact, the Federal Court of Appeal’s decision is clear and unambiguous on this point; the Tribunal must propose an appropriate remedy that takes into account “. . . the applicant’s results from the proposal re-evaluation . . .”.⁹ The Tribunal must therefore take into account the re-evaluation results, as presented by CIDA, to determine whether B.E.S.T.E. can be awarded the contract or receive compensation for lost profits.

26. The Tribunal also believes that, contrary to B.E.S.T.E.’s claims, its decision not to conduct an inquiry into B.E.S.T.E.’s complaint, issued on November 28, 2007, and the Federal Court of Appeal’s dismissal of the application for judicial review of December 3, 2007, do not create a legal vacuum and do not deprive B.E.S.T.E. of the right to be heard. The Tribunal fully considered B.E.S.T.E.’s complaint of November 19, 2007, and, on November 28, 2007, issued its decision not to conduct an inquiry. The Tribunal recalls that B.E.S.T.E. could have filed an application for judicial review with the Federal Court of Appeal if it did not agree with the Tribunal’s decision of November 28, 2007, which it did not do. Thus, as CIDA indicates, there is now res judicata regarding the re-evaluation results and the Tribunal cannot reconsider this issue.

27. In light of the foregoing, the Tribunal finds that, even if Mr. Courtemanche’s proposal had been set aside from the re-evaluation process, B.E.S.T.E.’s proposal would have ranked only second. Therefore, it would be inappropriate to recommend that the contract be awarded to B.E.S.T.E. or that it receive compensation for lost profits.

28. Moreover, the Tribunal reiterates that B.E.S.T.E. has already been compensated for injury arising from deficiencies in the award process for the procurement at issue. In fact, CIDA’s letter of November 5, 2007, states that $7,500 has already been paid to B.E.S.T.E. for its costs incurred to prepare the proposal. The Tribunal also notes that its determination in this remand does not affect its previous recommendation that such an amount be paid to B.E.S.T.E.

Should the contract awarded to Mr. Courtemanche be cancelled?

29. Upon reading paragraph 35 of the Federal Court of Appeal’s decision, the Tribunal concludes that the issue of the appropriateness of cancelling Mr. Courtemanche’s contract would only be raised if B.E.S.T.E.’s proposal had ranked first after excluding Mr. Courtemanche’s proposal.

30. However, the Tribunal found that the inadmissibility of Mr. Courtemanche’s proposal would not have enabled B.E.S.T.E.’s proposal to rank first in the re-evaluation. It therefore becomes impossible to recommend that the contract be awarded to B.E.S.T.E., and the issue of cancelling Mr. Courtemanche’s contract is therefore moot.

31. However, the Tribunal wishes to recall the content of its determination of September 5, 2007. In considering the factors listed in subsection 30.15(3) of the CITT Act, it gave CIDA the choice of cancelling the contract awarded to Mr. Courtemanche in the event that B.E.S.T.E. obtained the highest number of points in the re-evaluation. Given the Tribunal’s previous recommendation and the Federal Court of Appeal’s direction, the Tribunal cannot assert that it would have made a different recommendation. However, CIDA should take note that the successful bidder, Mr. Courtemanche, is the holder of a contract for which the Federal Court of Appeal clearly determined that he was not eligible.

Costs associated with the remand

32. Given that there was no request for costs associated with the remand, the Tribunal awards no costs in this case.

DETERMINATION OF THE TRIBUNAL

33. Considering the reasons supporting the Federal Court of Appeal’s decision, the Tribunal determines that there are no grounds to recommend a new remedy for B.E.S.T.E.

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

² . S.O.R./93-602 [Regulations].

³ . Re Complaints Filed by Bureau d’études stratégiques et techniques en économique, PR-2007-010 and PR-2007-012 (CITT).

⁴ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm>.

⁵ . On October 9, 2007, the Tribunal issued an order awarding B.E.S.T.E. $4,100, to be paid by CIDA, because it had found that the level of complexity of the complaints was Level 3, as contemplated by its Guideline for Fixing Costs in Procurement Complaint Proceedings.

⁶ . Re Complaint Filed by Bureau d’études stratégiques et techniques en économique, PR-2007-068 (CITT).

⁷ . Jean-Marc Bergevin v. The Canadian International Development Agency (19 March 2008), A-553-07 (FCA).

⁸ . Bergevin v. Canada (International Development Agency), 2009 FCA 18 (CanLII) [Bergevin].

⁹ . Bergevin at para. 36.