File No. PR-2018-058 Sunny Jaura d.b.a. Jaura Entreprises

Decision made Wednesday, January 30, 2019 Decision issued Thursday, January 31, 2019 Decision and reasons issued Tuesday, February 12, 2019

 

IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.).

BY

SUNNY JAURA d.b.a. JAURA ENTREPRISES

AGAINST

THE DEPARTMENT OF FOREIGN AFFAIRS, TRADE AND DEVELOPMENT

DECISION

Pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal has decided not to conduct an inquiry into the complaint.

The statement of reasons will be issued at a later date.

 

STATEMENT OF REASONS

[1]  Subsection 30.11(1) of the Canadian International Trade Tribunal Act [1] provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations, [2] a potential supplier may file a complaint with the Canadian International Trade Tribunal concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint. Subsection 30.13(1) of the CITT Act provides that, subject to the Regulations, after the Tribunal determines that a complaint complies with subsection 30.11(2) of the CITT Act, it shall decide whether to conduct an inquiry into the complaint.

BACKGROUND

[2]  On January 24, 2019, Sunny Jaura d.b.a. Jaura Enterprises (Jaura) filed a complaint with the Canadian International Trade Tribunal pursuant to subsection 30.11(1) of the CITT Act concerning a Request for Proposal (RFP) (Solicitation No. 19-145012-PRMNY-MG) issued by the Department of Foreign Affairs, Trade and Development (DFATD) for hotel accommodation.

[3]  This complaint follows a previous complaint filed by Jaura with the Tribunal, [3] which was determined to be valid. In this previous case, the Tribunal recommended that DFATD re-evaluate the technical proposal of the other bidder found to be compliant with the RFP in order to determine whether it was compliant based only on the information submitted (and not on the basis of additional material accessible online). The Tribunal also stated that after this re-evaluation was completed, if the other bidder was determined to be compliant, no compensation would be awarded to Jaura. However, if, as a result of the re-evaluation, it was determined that the only bidder compliant with the terms of the RFP was Jaura, Jaura would be entitled to be compensated for the profit that it would reasonably have made if it had been awarded the contract.

[4]  Accordingly, the re-evaluation was conducted by DFATD, and it determined that the second bidder’s proposal was compliant. As such, Jaura was not entitled to compensation. On December 12, 2018, the Department of Public Works and Government Services (PWGSC) informed the Tribunal and Jaura of this result.

[5]  In the present case, Jaura complains that the re-evaluation conducted by DFATD failed to consider the facts and the mandatory requirements of the RFP. Jaura alleges that the second bidder failed to submit a compliant bid and that DFATD failed to conduct a fair re-evaluation. Jaura also submits that it believes that the fact that the re-evaluation was conducted by the same organization (DFATD) led to an unfair evaluation and that there was bias against Jaura.

ANALYSIS

[6]  In order for the Tribunal to conduct an inquiry in a procurement matter, various conditions must be met. One of those conditions is that the complaint must disclose a reasonable indication that the procurement has not been carried out in accordance with the applicable trade agreements.

[7]  In support of its allegation, Jaura stated that it conducted its “own evaluation” and determined that the second bidder could not meet the mandatory criteria, namely with respect to the criterion pertaining to having a kitchen space which included a minimum of two burners and a fridge with at least nine cubic feet.

[8]  Jaura also relies on information contained in the December 12, 2018, letter with regard to the re‑evaluation results to question the consensus reached by the evaluators. Jaura highlights that “one evaluator had doubts” about the second bidder’s submission.

[9]  In the letter, counsel for PWGSC wrote the following:

As noted on the Consensus Evaluation Report, one of the evaluators identified two concerns during her individual evaluation examination regarding the information provided in the [second bidder’s submission] in relation to the requirements for security cameras and the equipping of the kitchens. (see: Attachment 2: Confidential Consensus Evaluation Report; Attachment 3, Confidential Individual Evaluation Notes) As described in the Consensus Evaluation Report, as a result of the consensus discussions, all three evaluators accepted that, considered on a reasonable basis, the information provided in the [second bidder’s] Bid was sufficient to meet all of the mandatory requirements set out in the RFP, including in particular the requirements regarding security cameras and the equipping of the proposed kitchens. Accordingly, the evaluation panel agreed that the [second bidder’s] Bid should be considered to be a compliant bid.

[10]  Jaura offers no other information in support of its allegations.

[11]  The Tribunal finds that there is insufficient evidence on the record to demonstrate either a reasonable indication of a violation of the trade agreements, or any indication of bias or a reasonable apprehension of bias.

[12]  On the issue of bias, the Tribunal notes that a concern about a potential bias in the conduct of a re‑evaluation by DFATD does not appear to have been discussed in the previous Tribunal file. The Tribunal’s decision simply recommends that evaluators re-evaluate the bids, without specifying who should conduct the re-evaluation or raising any concerns about the ability of the team of evaluators or of DFATD to conduct this re-evaluation fairly. [4]

[13]  There is no doubt that a duty of fairness applies to the conduct of evaluations during federal government procurement processes. While a complainant must, at this stage, only establish a reasonable indication of there being a reasonable apprehension of bias, as opposed to actual bias, in order to impugn the validity of administrative action to which a duty of fairness applies, it must be able to show facts and/or circumstances that will support its allegation. In other words, it is not sufficient to simply state that there is a belief that there is bias—it must offer sufficient evidence in that regard.

[14]  In the case at hand, the complainant believes that the evaluation that was conducted in File No. PR-2018-020 renders DFATD unable to conduct the re-evaluation. However, the fact that an error was made in the initial evaluation does not, de facto, mean that the government authority is unable to conduct a subsequent evaluation.

[15]  The original error in the evaluation of bids, in and of itself, is not sufficient to raise a concern about bias. The complainant bears the burden of providing evidence in support of its claim.

[16]  With respect to determining whether a reasonable apprehension of bias exists, the Tribunal considers the following test:

[What] would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [an individual], whether consciously or unconsciously, would not decide fairly. [5]

[17]  The evidence cited by Jaura in support of its allegation of reasonable apprehension of bias is insufficient and largely speculative, even when considered at the preliminary stage where the complainant need only to show a “reasonable indication” thereof that may justify initiating an inquiry

[18]  . In particular, the Tribunal finds that there is no reasonable indication that an informed person, viewing the matter realistically and practically and having thought the matter through, would be likely to conclude that DFATD evaluators would not have re-evaluated the bids fairly.

[19]  Furthermore, the December 12, 2018, letter from counsel for PWGSC contains a relatively detailed analysis of the re-evaluation process, including how it addressed concerns that were raised by one of the evaluators. The Tribunal is satisfied that the explanation provided by counsel to PWGSC with respect to the re-evaluation demonstrates a thoughtful consideration of the bid following recommendations made by the Tribunal. The fact that there was some discussion with respect to a particular point in the evaluation does not, in and of itself, provide a reasonable indication that the re-evaluation was not conducted fairly or that the winning bidder’s bid should have been, in the ultimate consensus analysis, found non-compliant. It is not unusual or unexpected that all evaluators may not, at the outset, agree on all points. The necessary consideration is whether the evaluators were able to get to a consensus result fairly, having regard to the obligations set out by the trade agreements. Furthermore, the fact that there may have been a variance in initial views in the evaluation does not, in this case, give rise to a reasonable indication of any prejudice against Jaura.

[20]  As such, the Tribunal finds that this complaint does not disclose a reasonable indication of a breach of the applicable trade agreements.

DECISION

[21]  Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.