File No. PR-2020-068 Heiltsuk Horizon Maritime Services Ltd./Horizon Maritime Services Ltd. v. Department of Public Works and Government Services

Determination and reasons issued Monday, May 3, 2021

 

TABLE OF CONTENTS

DETERMINATION i

STATEMENT OF REASONS 1

OVERVIEW 1

BACKGROUND 1

The solicitation 1

Previous complaints 1

The present complaint 2

TRIBUNAL’S ANALYSIS 4

Facts 4

Standing 4

Jurisdiction 5

Standard of review 8

Mandatory Requirement 20 8

Rated Requirement 24 9

Procedure of the substitution 10

Bias 11

COSTS 12

DETERMINATION 12

 

IN THE MATTER OF a complaint filed by Heiltsuk Horizon Maritime Services Ltd./Horizon Maritime Services Ltd. 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 decision to conduct an inquiry into the complaint pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN
HEILTSUK HORIZON MARITIME SERVICES LTD./HORIZON MARITIME SERVICES LTD.	Complainant
AND
THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES	Government Institution

DETERMINATION

Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is not valid. Each party will bear its own costs.

 

Tribunal Panel:	Peter Burn, Presiding Member
Support Staff:	Peter Jarosz, Counsel Jessye Kilburn, Counsel
Complainant:	Heiltsuk Horizon Maritime Services Ltd./Horizon Maritime Services Ltd.
Counsel for the Complainant:	Frank Metcalf, Q.C. Seamus Ryder Marc McLaren-Caux Gerry Stobo
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Brendan F. Morrison Peter J. Osborne Zachary Rosen
Intervener:	Atlantic Towing Limited
Counsel for the Intervener:	Robert A. Glasgow Julie K. Parla Ljiljana Stanic R. Paul Steep

Please address all communications to:

The Deputy Registrar
Telephone: 613-993-3595
E-mail: citt-tcce@tribunal.gc.ca

 

STATEMENT OF REASONS

OVERVIEW

[1] This is the fifth complaint filed by Horizon Maritime Services Ltd./Heiltsuk Horizon Maritime Services Ltd. (Heiltsuk Horizon) regarding a Request for Proposals (RFP) conducted by the Department of Public Works and Government Services (PWGSC) on behalf the Department of Fisheries and Oceans, for the services of two emergency towing vessels provided on a time charter basis to patrol the British Columbia coastline (Solicitation No. F7017-160056/C). PWGSC awarded the contract to Atlantic Towing Ltd. (ATL).

[2] Heiltsuk Horizon argued that PWGSC improperly allowed ATL to substitute four masters for the masters originally proposed in ATL’s bid. (“Masters” are ship’s officers which are often colloquially referred to as “captains” of sea vessels.) According to Heiltsuk Horizon, the substitute masters did not have sufficient experience to meet Mandatory Requirement 20 (MR 20). Additionally, Heiltsuk Horizon argued that the substitute masters would have received lesser scores than the original masters under Rated Requirement 24 (RR 24). Finally, Heiltsuk Horizon alleged that PWGSC’s conduct displayed bias in favour of ATL.

[3] For the reasons below, the Tribunal finds that Heiltsuk Horizon’s complaint is not valid.

BACKGROUND

The solicitation

[4] The solicitation was issued on February 5, 2018. The bid closing date was April 13, 2018, and Heiltsuk Horizon submitted its bid on that date. ATL was awarded the contract on August 9, 2018.

Previous complaints

[5] Heiltsuk Horizon filed four previous complaints in respect of the same procurement that is at issue in the present complaint. Heiltsuk Horizon alleged that PWGSC was biased in favour of ATL, and it challenged PWGSC’s evaluation of the solicitation’s mandatory bollard-pull requirement (MR 12).

[6] Heiltsuk Horizon filed its first complaint (PR-2018-023) on August 20, 2018. On January 2, 2019, the Tribunal found the first complaint to be valid in part and recommended a re-evaluation of MR 12. [1] On May 27, 2019, PWGSC notified the Tribunal and Heiltsuk Horizon that it had re‑evaluated MR 12, that all bidders were found compliant with MR 12, and that ATL remained the successful bidder.

[7] Heiltsuk Horizon filed its second complaint (PR-2019-020) on June 7, 2019, its third complaint (PR-2019-025) on July 30, 2019, and its fourth complaint (PR-2019-034) on September 17, 2019. On September 19, 2019, the Tribunal decided not to conduct an inquiry into the fourth complaint. [2] The Tribunal conducted an inquiry into the second and third complaints and, on October 18, 2019, the Tribunal found them valid in part and recommended a second re-evaluation of MR 12. [3]

[8] On December 2 and 3, 2020, the Federal Court of Appeal heard five applications for judicial review concerning the Tribunal’s decisions in the first three complaints. Heiltsuk Horizon challenged the Tribunal’s first decision, and all three parties (Heiltsuk Horizon, PWGSC, and ATL) challenged the Tribunal’s second and third decisions. On February 10, 2021, the Federal Court of Appeal upheld the first decision and set aside the second and third decisions. [4]

The present complaint

[9] On November 28, 2019, Heiltsuk Horizon made a request under the Access to Information Act [5] for documents relating to the solicitation at issue. PWGSC provided documents in response to this request on December 3, 2020, immediately after the conclusion of the judicial review hearing at the Federal Court of Appeal.

[10] Heiltsuk Horizon filed the present complaint on December 17, 2020, and requested that the records of the previous four complaints be added to that of the fifth complaint. On December 21, 2020, the Tribunal noted that Heiltsuk Horizon would not be required to refile documents that were already part of previous complaints. On December 23, 2020, the Tribunal accepted the complaint for inquiry.

[11] On January 15, 2021, ATL requested intervener status. ATL also objected to Heiltsuk Horizon’s request to add the records of previous complaints to that of the present complaint, and it alleged that Heiltsuk Horizon’s counsel had misused confidential information belonging to ATL, which counsel had obtained in previous complaints, by submitting this information as part of the present complaint.

[12] On January 21, 2021, PWGSC filed comments supporting ATL’s request to intervene, echoing ATL’s concerns about the use of confidential information, opposing Heiltsuk Horizon’s request to add the record of previous complaints to the present complaint, and requesting an extension of time to file its Government Institution Report (GIR).

[13] On January 22, 2021, the Tribunal granted PWGSC’S request for an extension of time to file the GIR.

[14] On January 25, 2021, Heiltsuk Horizon indicated that it did not object to ATL’s request for intervener status. In addition, Heiltsuk Horizon denied ATL’s allegation that its counsel had misused confidential information, arguing that referring to confidential information disclosed in a previous procurement inquiry concerning the same solicitation and the same parties is not a misuse of confidential information. ATL replied to these submissions on January 28, 2021.

[15] The Tribunal granted ATL’s request for intervener status on January 28, 2021.

[16] On February 3, 2021, the Tribunal found that there had been no substantive breach of confidentiality obligations by counsel for Heiltsuk Horizon. The Tribunal noted that all Heiltsuk Horizon’s complaints have concerned the same parties, the same solicitation, and related issues. The Tribunal found no indication that counsel had disclosed confidential information to anyone who did not already have access to it. The Tribunal nonetheless noted that, in the future, where parties refer to the confidential record of previous complaints and ask the Tribunal to add that record to that of the new complaint, they should provide references to that record in lieu of attaching third-party confidential information to the new complaint. Finally, the Tribunal found that it was appropriate to add the record of Heiltsuk Horizon’s previous complaints to the record of the present complaint, as the complaints are closely related, if not identical.

[17] PWGSC filed the GIR on February 8, 2021.

[18] On February 10, 2021, Heiltsuk Horizon requested that the Tribunal order PWGSC to produce additional documents that were not filed with the GIR but which were required to be included pursuant to paragraph 103(1)(b) of the Canadian International Trade Tribunal Rules. [6] On February 12, 2021, PWGSC objected to this request on the grounds that the documents requested were irrelevant. Nonetheless, PWGSC filed several additional emails and meeting minutes that were not filed with its GIR.

[19] On February 12, 2021, ATL provided its comments on the GIR.

[20] On February 15, 2021, the Tribunal ordered PWGSC to produce certain additional documents, including scoring documents for the evaluation of the substitute masters and any correspondence related to the substitution process, to the extent that these documents existed and had not already been filed with the Tribunal. The Tribunal also extended Heiltsuk Horizon’s deadline to comment on the GIR. On February 17, 2021, PWGSC indicated that no notes or scoring documents were made regarding the evaluation of the substitute masters but filed certain additional documents related to the substitution process.

[21] On February 18, 2021, Heiltsuk Horizon requested an extension of time to file its comments on the GIR, to which ATL objected on February 19, 2021. The Tribunal granted Heiltsuk Horizon’s request on February 19, 2021.

[22] Heiltsuk Horizon filed its reply to the GIR on February 24, 2021, as well as an objection to PWGSC’s confidentiality designations on certain documents. On March 3, 2021, PWGSC resubmitted certain documents as non-confidential. On March 5, 2021, the Tribunal requested that Heiltsuk Horizon indicate whether it was satisfied with the additional public documents provided by PWGSC and, if not, indicate the specific confidentiality designations to which it still objected. On March 8, 2021, Heiltsuk Horizon indicated that it still objected to certain email exchanges being designated as confidential. On March 9, 2021, the Tribunal requested that PWGSC indicate whether it was willing to make these email exchanges public. On March 11, 2021, PWGSC filed public versions of these email exchanges.

[23] On March 9, 2021, PWGSC filed a response to Heiltsuk Horizon’s comments on the GIR. On March 10, 2021, the Tribunal noted that, while this response was not provided for in the Tribunal’s schedule of submissions, it would allow the response onto the record and would also allow ATL and Heiltsuk Horizon to respond. ATL submitted its response on March 12, 2021. Heiltsuk Horizon submitted its response on March 17, 2021, in which it argued that PWGSC’s submissions of March 9 should be given no weight as they were not necessary and did not respond to new facts but were rather an improper attempt to bolster PWGSC’s argument.

TRIBUNAL’S ANALYSIS

Facts

[24] After PWGSC had awarded the contract to ATL, representatives from ATL, PWGSC and the Canadian Coast Guard (CCG) held a meeting in August 2018 to prepare to deploy the emergency towing vessels to the coast of British Columbia. At that meeting, according to ATL, CCG emphasized the importance of the masters’ role in engaging with coastal and Indigenous communities, as ambassadors of the CCG. [7] ATL has submitted that although the masters it had originally proposed were still available, it believed that other masters it employed would be more suitable for this community outreach role. As such, ATL proposed substitutes for three of the four masters proposed in its bid. ATL sent the resumes of three substitute masters to PWGSC on September 4, 2018, [8] and PWGSC approved the substitution on September 11, 2018. [9]

[25] Shortly after the first substitution, ATL proposed another substitution. The one remaining master who had originally been included in ATL’s bid was deployed in the North Sea and, according to ATL, it would be difficult for him to leave his current vessel in time to perform the contract. [10] Therefore, ATL proposed a fourth substitute master on September 28, 2018, and PWGSC approved this substitution on October 4, 2018. [11]

[26] Two of the substitute masters delivered the vessels to Victoria, British Columbia towards the end of 2018, and the other two substitute masters joined the vessels shortly after. [12]

[27] As mentioned above, Heiltsuk Horizon became aware of the substitution on December 3, 2020, when PWGSC provided documents in response to Heiltsuk Horizon’s access to information request.

Standing

[28] PWGSC and ATL have challenged Heiltsuk Horizon’s standing to bring this complaint, on the grounds that it is no longer a “potential supplier” under section 30.1 and subsection 30.11(1) of the Canadian International Trade Tribunal Act (CITT Act) because it can no longer perform the contract. The two vessels that formed part of Heiltsuk Horizon’s bid were decommissioned in April and August 2019.

[29] Heiltsuk Horizon argued that it is a potential supplier because it bid on the RFP and that it does not lose potential supplier status because it decommissioned its vessels over a year after bidding had closed. It also argued that it decommissioned its vessels because it had an obligation to mitigate its damages.

[30] The Federal Court of Appeal heard arguments on a similar issue but declined to consider these arguments. [13]

[31] The Tribunal agrees with Heiltsuk Horizon that potential supplier status is determined at the time the bids are submitted. Section 30.1 of the CITT Act defines a “potential supplier” as “a bidder or prospective bidder on a designated contract”. It is undisputed that Heiltsuk Horizon was one of the bidders on a designated contract.

[32] The decommissioning of the vessels over a year after bid closing is therefore irrelevant to the issue of standing. In past cases where a bidder complained that a government institution had modified a contract after it was awarded, as Heiltsuk Horizon does here, the bidder was not required to demonstrate that it could still perform the original contract (or that it could perform the modified contract) in order to have standing to bring a complaint. [14]

[33] As such, Heiltsuk Horizon has standing to bring a complaint as a “potential supplier” under section 30.1 and subsection 30.11(1) of the CITT Act.

Jurisdiction

[34] PWGSC and ATL argued that the substitution of masters is a matter of contract administration over which the Tribunal does not have jurisdiction, because the provision of the RFP allowing substitution of personnel (section 7.46) falls within the RFP’s section on contracting clauses. [15]

[35] Heiltsuk Horizon argued that PWGSC’s substitution of masters was not a matter of mere contract administration, and that the Tribunal therefore has jurisdiction over this complaint. According to Heiltsuk Horizon, PWGSC effectively initiated a new procurement with new mandatory and rated requirements that only ATL had the opportunity to bid on. Heiltsuk Horizon pointed to Tribunal jurisprudence establishing that “[it] is not a simple matter of contract administration if a mandatory term of a procurement is changed after bids are received or even after a contract is awarded.” [16] Heiltsuk Horizon also pointed to Article 503.2 of the Canadian Free Trade Agreement, [17] according to which “[a] procuring entity shall not use options, cancel a procurement, or modify an awarded contract in a manner that circumvents the obligations of this Chapter.”

[36] ATL further submitted that a new procurement can arise out of an ongoing contract only when Canada accepts goods from bidders knowing from the beginning that the goods are not compliant with the mandatory criteria. ATL insisted that no changes were made to the mandatory criteria during the substitution process and that the rated criteria are irrelevant in the substitution process.

[37] In response, Heiltsuk Horizon pointed to section 4.2(a)(i) of the RFP, which states that “[a]ny element of the bid solicitation identified with the words “must” or “mandatory” is a mandatory requirement.” Heiltsuk Horizon therefore argued that section 7.46 of the RFP, which states that a replacement individual “must have qualifications and experience that meet or exceed the score obtained for the original resource”, is a mandatory requirement.

[38] The Tribunal recalls that it has jurisdiction over the “procurement process” but not matters of “contract administration”, as recent jurisprudence has explained:

The CITT Act and the Regulations allow a potential supplier to complain to the Tribunal about any aspect of a procurement process for a designated contract. When applying these provisions, the Tribunal has made an important distinction between the procurement process and contract administration. The procurement process begins after the government institution has decided on its procurement requirement and continues through to the awarding of the contract. Contract administration is a separate phase that takes place after the procurement process is completed. It deals with issues that arise as a contract is performed and managed. The Tribunal has been clear that matters of contract administration are beyond the scope of its jurisdiction. [18]

[Footnote omitted]

[39] In the Tribunal’s view, certain of Heiltsuk Horizon’s allegations relate to contract administration and fall outside the Tribunal’s jurisdiction, while other allegations relate to the procurement process and fall within the Tribunal’s jurisdiction.

[40] Arguments about the purpose of the substitution (as outlined in resulting contract clause 7.46) are matters of contract administration that are beyond the Tribunal’s jurisdiction. The Tribunal will therefore not consider Heiltsuk Horizon’s arguments that the substitution was made for an improper purpose. [19] These allegations relate to a matter of contract administration, which is governed by the terms of the contract between ATL and PWGSC, and over which the Tribunal does not have jurisdiction. [20]

[41] In contrast, the issue of whether the substitute masters met the mandatory and rated requirements of the RFP is within the Tribunal’s jurisdiction over the procurement process. The Tribunal has jurisdiction to consider whether the government institution acted contrary to Article 503.2 of the CFTA by modifying an awarded contract in a manner that contravened the requirements of Chapter 5 of the CFTA, which includes the requirement that an evaluation be “based solely on the evaluation criteria specified in the tender notices and tender documentation.” [21] In effect, the Tribunal has jurisdiction to consider whether the contract was modified in a manner that contravened the RFP. Even prior to the existence of Article 503.2 of the CFTA, [22] the Tribunal found that it had jurisdiction to inquire into whether a substitution amounted to a new evaluation (or a re‑evaluation) such that it effectively became a new procurement [23] and whether the government institution “obtained something substantially different from what was contemplated by the original RFP”. [24] As such, the Tribunal will consider whether the substituted masters substantially satisfied the RFP’s requirements.

[42] While PWGSC and ATL argued that the substitute masters needed only to meet the mandatory requirements, the Tribunal is of the view that rated requirements as well as mandatory requirements are relevant to the question of whether RFP requirements were substantively satisfied. If the substitute masters were not required to earn the same points on rated requirements as ATL’s original masters had earned, then PWGSC would be effectively creating a new evaluation process where ATL’s substitute masters would be permitted to satisfy lesser requirements than all masters originally proposed by other bidders. This issue goes to the core of the procurement process, as it affects the fairness of competition between bidders according to the terms of the procurement, and it is therefore within the Tribunal’s jurisdiction. Accordingly, in what follows, the Tribunal will address Heiltsuk Horizon’s arguments that the substitute masters did not have sufficient experience to satisfy MR 20 and RR 24.

[43] Finally, the Tribunal will also consider Heiltsuk Horizon’s arguments that PWGSC and CCG did not follow a proper procedure for evaluating the substitute masters. Chapter 5 of the CFTA includes a requirement that the government institution “. . . treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process . . . .” [25] As the Tribunal has jurisdiction to consider whether the government institution acted contrary to Article 503.2 of the CFTA by modifying an awarded contract in a manner that contravened the requirements of Chapter 5 of the CFTA, then the Tribunal accordingly has jurisdiction to consider the procedure as well as the substance of the substitution.

Standard of review

[44] It is well established that the Tribunal will review a procurement process on a reasonableness standard, showing deference to the evaluators’ expertise and making recommendations only when a decision is unreasonable in light of the solicitation’s criteria. [26] This means that the Tribunal’s role is not to conduct its own evaluation of ATL’s substitute masters, but to determine whether PWGSC’s assessment of the substitute masters under MR 20 and RR 24 was reasonable.

Mandatory Requirement 20

[45] MR 20 reads as follows: “The Bidder’s vessels must demonstrate that the vessels will be manned by a Master with demonstrable minimum 5 years’ experience in ocean and emergency towing.” The assessment methodology for MR 20 is as follows: “The bidder must provide the résumé of the proposed masters for both vessels for all watches which demonstrates the proposed Masters’ experience.” [27]

[46] Heiltsuk Horizon argued that PWGSC made improper changes to MR 20 after ATL was awarded the contract, by allowing ATL to substitute personnel without previous experience as a master. Heiltsuk Horizon argues that MR 20 required candidates to have held the rank of master at the time of bid closing or at the time of the proposed substitution, as it would be absurd if the criterion included individuals with no experience as commanding officer. Heiltsuk Horizon submits that two of ATL’s replacements held only a lower rank at the time of bid substitution and did not have experience commanding a vessel.

[47] PWGSC argued that MR 20 does not include a requirement that candidates already hold the rank of master. It insisted that the substituted masters met MR 20 because they had the required 5 years of experience in ocean and emergency towing, and that their previous rank is irrelevant to MR 20.

[48] In the Tribunal’s view, a plain reading of MR 20 does not include a requirement that candidates already hold the rank of master. The mandatory requirement is a minimum 5 years of experience in ocean and emergency towing.

[49] The Tribunal finds that it was reasonable for PWGSC to conclude that the substitute masters fulfilled MR 20. The resumes of the substitute masters clearly show that each candidate had at least 5 years of experience in ocean and emergency towing, as of the date that the substitutes were proposed. The first three substitute masters were submitted for PWGSC’s approval on September 4, 2018, [28] and the fourth substitute master was submitted for approval on September 28, 2018. [29] Each candidate’s resume states that XXXXXXXXXXXXXXXXXXXX XXXXXXX, and each resume contains detailed descriptions of the candidates’ work experience since then. [30]

Rated Requirement 24

[50] RR 24 sets out the number of points to be given to a bidder based on the proposed masters’ years of experience in ocean and emergency towing, as follows:

0 PTS = The Bidder has demonstrated that the vessels will be manned by a master with minimum 5 years’ experience in ocean and emergency towing.

6 PTS = The Bidder has demonstrated that the vessels will be manned by a master with more than 5 and less than 7 years’ experience in ocean and emergency towing.

12 PTS = The Bidder has demonstrated that the vessels will be manned by a master with more than 7 years and less than 10 years’ experience in ocean and emergency towing.

18 PTS = The Bidder has demonstrated that the vessels will be manned by a master with 10 years or more experience in ocean and emergency towing. [31]

[51] The evidence before the Tribunal was that the procurement involved two towing vessels, each with two rotating crews. Therefore, four masters had to be proposed by the bidders. In ATL’s original bid, each of its four proposed masters had over 10 years of experience in ocean and emergency towing. ATL was awarded the full 18 points for RR 24. [32]

[52] Heiltsuk Horizon alleged that ATL performed a “bait and switch” by proposing masters with more experience and later substituting masters with less experience. It argued that all four replacement masters must be assessed against ATL’s original scores, as RR 24 refers to “vessels”, in the plural. Heiltsuk Horizon also notes that XXXXXXXXXXXXXXXXXXXXXXXX. XXXXXX. Heiltsuk Horizon disputed the experience of two masters as follows: (1) the first master has XX years of experience according to PWGSC, but only XX years according to Heiltsuk Horizon, and (2) the second master has XXXX years of experience according to PWGSC but only XXXX according to Heiltsuk Horizon, of which Heiltsuk Horizon argued that XXXXXXXXXXXXXXX and therefore did not qualify as ocean and emergency towing.

[53] PWGSC argued that only one of the four masters needed to be assessed under RR 24. Therefore, it argued, ATL needed to demonstrate that each of the proposed substitute masters had a minimum of 5 years of experience in ocean and emergency towing (to meet MR 20) and that only one of the masters had more than 10 years of the required experience (to receive full points under RR 24). Nonetheless, PWGSC submitted that ATL’s replacements exceeded this requirement because all four substituted masters had 10 or more years of experience at the time of the substitution, and therefore would have all received the full 18 points under RR 24.

[54] ATL submitted that the experience of replacement masters is assessed as of the date on which the new master will man the vessel, and that all four replacement masters had ten years of experience in ocean and emergency towing at the date of vessel manning.

[55] The Tribunal does not accept PWGSC’s argument that only one master’s experience is relevant under RR 24. While PWGSC highlights that RR 24 refers to “master”, in the singular, when the requirement is read as a whole, it is clear that “master” is singular because only one master at a time mans a vessel. The phrase “the vessels will be manned . . .”, with “vessels” in the plural, indicates that more than one master’s experience is intended to be rated under RR 24.

[56] In assessing whether the masters have adequate experience, the Tribunal recalls that it reviews procurement decisions on a reasonableness standard, which means that it does not perform its own evaluation or engage in overly close scrutiny of the government institution’s evaluation. The Tribunal adopts the following summary of the standard set out by the Supreme Court of Canada in Vavilov:

. . . a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan, at paras. 50-51. [33]

[57] In the Tribunal’s view, in light of the resumes of the substitute masters provided by ATL, it was reasonable for PWGSC to conclude that all four substitute masters had ten years of experience in ocean and emergency towing at the time the substitute masters were proposed.

[58] As noted above, the substitute masters were proposed in September 2018. According to the resumes provided by ATL, each substitute master XXXXXXXXXXXXXXXXXXXXXXXXXX, and each resume contains detailed descriptions of the candidates’ work experience since then. [34] In light of this information, the Tribunal finds that it was reasonable for PWGSC to conclude that each of the substitute masters had at least ten years of experience in ocean and emergency towing, as of September 2018 when the substitutions were proposed. Therefore, it was reasonable for PWGSC to conclude that these masters were permissible substitutes for the original masters when assessed under RR 24.

Procedure of the substitution

[59] Heiltsuk Horizon argued that PWGSC should have submitted documentation showing how the substitute masters were evaluated and scored in comparison to the original masters. According to Heiltsuk Horizon, section 7.46 of the RFP obligated PWGSC and/or CCG to verify that each of ATL’s proposed substitute masters possessed the experience required to meet or exceed the score obtained by all four of the original masters under RR 24.

[60] The record of this complaint includes several emails exchanged between ATL and officials from PWGSC and CCG, discussing the substitution. [35] These emails show that ATL provided resumes of the substitute masters and that officials eventually approved these resumes, after some internal discussion about whether a particular evaluation process needed to be followed and whether the rated requirement needed to be assessed. A PWGSC official indicated that section 7.46 contained the procedure that needed to be followed, and a CCG official stated that “[w]ithout comparison to the original records of the contract and just on assessment of the resumes provided the experience, knowledge and abilities meet the expectations.” [36] In the Tribunal’s view, PWGSC and/or CCG ought to have better documented their evaluation of the substitute masters. In particular, they should have documented efforts to ensure that the substitute masters would meet the mandatory requirements and that they would receive equivalent scores to the original masters under the rated requirements.

[61] However, this litigation has allowed PWGSC to put forward evidence (i.e. the substitutes’ resumes) that the substitute masters are valid replacements, as well as an explanation of the substitution process. Therefore, while contemporaneous documentation is lacking, the substitutes were ultimately sufficient, as determined above, and the Tribunal therefore finds no breach of the CFTA. Nonetheless, this lack of documentation is reflected in the Tribunal’s cost order, as explained below.

Bias

[62] In each of its past complaints, Heiltsuk Horizon argued that PWGSC had displayed bias in favour of ATL and the Tribunal dismissed these bias allegations each time. [37] The Federal Court of Appeal upheld the Tribunal’s findings on bias. [38]

[63] In the present complaint, Heiltsuk Horizon argued that despite the outcome of its bias allegations in past complaints, it now has enough evidence to establish that PWGSC was biased in favour of ATL. Heiltsuk Horizon submitted that PWGSC has refused to accept the Tribunal’s findings in previous complaints and has displayed an eagerness to misinterpret its own mandatory requirements to allow ATL to succeed. Heiltsuk Horizon also alleged that PWGSC has made efforts to conceal or misrepresent documents, both in the context of Tribunal proceedings and in the context of Heiltsuk Horizon’s access to information requests, to which PWGSC responded almost immediately after the closing of the judicial review hearings of the previous complaints at the Federal Court of Appeal.

[64] PWGSC submits that the bias allegations are res judicata, and ATL submits that issue estoppel precludes re-litigation of the bias allegations.

[65] In the Tribunal’s view, whether or not the bias allegations are precluded by res judicata or issue estoppel, there is nonetheless insufficient evidence to establish either bias or a reasonable apprehension of bias. An allegation of actual bias “cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions . . . It must be supported by material evidence demonstrating conduct that derogates from the standard.” [39] When a complainant alleges even a reasonable apprehension of bias, “it is not sufficient to simply state that there is a belief that there is bias—[the complainant] must offer sufficient evidence in that regard.” [40] Moreover, the Tribunal generally “presumes the good faith and honesty both of the bidders and of the public servants mandated to evaluate their bid”, [41] meaning that the complainant must provide sufficient evidence to overcome this presumption. [42] None of the conduct referred to by Heiltsuk Horizon is sufficient evidence to meet this standard.

COSTS

[66] The Tribunal has determined that each party will bear its own costs. While costs are generally awarded to the winning party, the Tribunal has on occasion declined to do so “in keeping with [its] discretion as a court of record and master of its own procedure . . . ” [43] . For example, the Tribunal has declined to award costs to a winning party that withheld relevant information and/or unduly complicated the proceedings. [44]

[67] PWGSC made this complaint considerably more procedurally complicated than necessary, in several ways. As explained above, PWGSC’s documentation of the substitution process was lacking, which was in part what motivated Heiltsuk Horizon’s complaint. Furthermore, during the complaint process, PWGSC failed to provide all relevant documentation with its GIR, which necessitated several rounds of submissions from parties and a production order from the Tribunal. PWGSC also unnecessarily designated documents as confidential, which necessitated further submissions from parties, and it supported ATL’s unfounded and unnecessary allegations that counsel for Heiltsuk Horizon had breached their confidentiality obligations. Finally, in the Tribunal’s view, Heiltsuk Horizon’s complaint—while ultimately not valid—was not frivolous either. As such, the Tribunal finds it appropriate for each party to bear its own costs.

DETERMINATION

[68] Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid. Each party will bear its own costs.