Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited

Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited
Court (s) Database
Federal Court of Appeal Decisions
Date
2021-02-10
Neutral citation
2021 FCA 26
File numbers
A-428-19, A-429-19, A-430-19, A-433-19, A-57-19
Decision Content
Date: 20210210
Dockets: A-429-19 (lead file)
A-57-19
A-428-19
A-430-19
A-433-19
Citation: 2021 FCA 26
CORAM:
NADON J.A.
WEBB J.A.
LEBLANC J.A.
Docket: A-429-19
BETWEEN:
HEILTSUK HORIZON MARITIME SERVICES LTD. and
HORIZON MARITIME SERVICES LTD.
Applicants
and
ATLANTIC TOWING LIMITED and
THE ATTORNEY GENERAL OF CANADA
Respondents
Docket: A-57-19
AND BETWEEN:
HEILTSUK HORIZON MARITIME SERVICES LTD.
and HORIZON MARITIME SERVICES LTD.
Applicants
and
ATLANTIC TOWING LIMITED and
THE ATTORNEY GENERAL OF CANADA
Respondents
Docket: A-428-19
AND BETWEEN:
ATLANTIC TOWING LIMITED
Applicant
and
HEILSTUK HORIZON MARITIME SERVICES LTD.,
HORIZON MARITIME SERVICES LTD., and
ATTORNEY GENERAL OF CANADA
Respondents
Docket: A-430-19
AND BETWEEN:
HEILTSUK HORIZON MARITIME SERVICES LTD. and
HORIZON MARITIME SERVICES LTD.
Applicants
and
ATLANTIC TOWING LIMITED and
THE ATTORNEY GENERAL OF CANADA
Respondents
Docket: A-433-19
AND BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
HEILTSUK HORIZON MARITIME SERVICES LTD.,
HORIZON MARITIME SERVICES LTD. and
ATLANTIC TOWING LIMITED
Respondents
Heard by online video conference hosted by the registry on December 2 and 3, 2020.
Judgment delivered at Ottawa, Ontario, on February 10, 2020.
PUBLIC REASONS FOR JUDGMENT BY:
LEBLANC J.A.
CONCURRED IN BY:
NADON J.A.
WEBB J.A.
Date: 20210210
Dockets: A-429-19 (lead file)
A-57-19
A-428-19
A-430-19
A-433-19
Citation: 2021 FCA 26
CORAM:
NADON J.A.
WEBB J.A.
LEBLANC J.A.
Docket:A-429-19
BETWEEN:
HEILTSUK HORIZON MARITIME SERVICES LTD. and
HORIZON MARITIME SERVICES LTD.
Applicants
and
ATLANTIC TOWING LIMITED and
THE ATTORNEY GENERAL OF CANADA
Respondents
Docket:A-57-19
AND BETWEEN:
HEILTSUK HORIZON MARITIME SERVICES LTD.
and HORIZON MARITIME SERVICES LTD.
Applicants
and
ATLANTIC TOWING LIMITED and
THE ATTORNEY GENERAL OF CANADA
Respondents
Docket:A-428-19
AND BETWEEN:
ATLANTIC TOWING LIMITED
Applicant
and
HEILSTUK HORIZON MARITIME SERVICES LTD.,
HORIZON MARITIME SERVICES LTD., and
ATTORNEY GENERAL OF CANADA
Respondents
Docket:A-430-19
AND BETWEEN:
HEILTSUK HORIZON MARITIME SERVICES LTD. and
HORIZON MARITIME SERVICES LTD.
Applicants
and
ATLANTIC TOWING LIMITED and
THE ATTORNEY GENERAL OF CANADA
Respondents
Docket:A-433-19
AND BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
HEILTSUK HORIZON MARITIME SERVICES LTD.,
HORIZON MARITIME SERVICES LTD. and
ATLANTIC TOWING LIMITED
Respondents
PUBLIC REASONS FOR JUDGMENT
This is a public version of confidential reasons for judgment issued to the parties. The two are identical, there being no confidential information disclosed in the confidential reasons.
LEBLANC J.A.
I. Introduction
[1] This Court is seized of a number of judicial review applications – five in total – brought pursuant to paragraph 28(1)(e) of the Federal Courts Act, R.S.C. 1985, c. F-7, in relation to three decisions of the Canadian International Trade Tribunal (the Tribunal), one dated January 2, 2019 and the other two dated October 18, 2019. Those decisions disposed of complaints arising from a government procurement process, bearing No. F7017-160056/C, held in 2018 for the provision of two emergency towing vessels for Canadian Coast Guard (CCG) operations on the British Columbia coastline (the Solicitation).
[2] The Solicitation, conducted by Public Works and Government Services Canada (PWGSC) on behalf of the CCG, was initiated by way of a Request for Proposal (the RFP). It attracted nine (9) bids, including those of Heiltsuk Horizon Services Limited/Horizon Maritime Services Ltd. (Heiltsuk Horizon), a partnership between British Columbia’s Heiltsuk Nation and a Canadian marine and offshore company, and of Atlantic Towing Limited (Atlantic). Atlantic ended up the top-ranked bidder and was awarded the contract contemplated by the Solicitation, a three-year contract worth 67 million dollars. Heiltsuk Horizon ranked last.
[3] Heiltsuk Horizon, which filed four complaints with the Tribunal in connection with the Solicitation, as permitted by the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.) (the Act), claims that the vessels bid by Atlantic do not exert the minimum pulling or towing power measure required by the RFP’s mandatory requirement No. 12 (MR 12) and that Atlantic’s bid is therefore non-compliant. It asserts that the Tribunal’s decisions are fatally flawed in that the Tribunal recommended, on each occasion, that all bids be re-evaluated, despite Atlantic’s bid’s alleged non-compliance. Heiltsuk Horizon claims that the only reasonable outcome in these circumstances was to declare Atlantic’s bid non-compliant, exclude that bid from any further consideration, and terminate the contract awarded to Atlantic. Moreover, being of the view that it is now the only compliant bidder, Heiltsuk Horizon asserts that it should have been awarded a new contract. Heiltsuk Horizon also takes issue with the Tribunal’s dismissal of its allegation that PWGSC favoured Atlantic in conducting the Solicitation.
[4] For its part, Atlantic, with the support of the Attorney General of Canada (the Attorney General), takes issue with the Tribunal’s second and third decisions, which, except for the costs award, are identical. Both Atlantic and the Attorney General claim that the Tribunal exceeded its oversight jurisdiction over federal government procurement by imposing, in these two decisions, an interpretation of MR 12 that has no basis in the RFP, thereby impermissibly altering the RFP’s mandatory requirements. They also claim that the Tribunal further exceeded its jurisdiction by failing to accord deference to the evaluators’ re-evaluation of MR 12, by failing to adequately consider the steps taken by those evaluators in assessing compliance with said requirement, and by misapprehending the relevant evidence. In addition, they both submit that Heiltsuk Horizon engaged in an abuse of process by failing to disclose to the Tribunal, and to the Court, evidence regarding the decommissioning and dismantling of the vessels it proposed in its bid (the New Evidence). Atlantic and the Attorney General claim that the New Evidence, had it been properly disclosed to the Tribunal, would have affected the outcome of the proceedings.
[5] All five judicial review applications related to this matter were heard together. The application in Court file A-57-19 concerns Heiltsuk Horizon’s challenge to the Tribunal’s first decision (Decision I). Those in Court files A-429-19 and A-430-19 relate to Heiltsuk Horizon’s challenge to the Tribunal’s second and third decisions, which, as indicated previously, are identical and will be referred to in these reasons as Decision II. The remaining two applications in Court files A-428-19 and A-433-19 were brought by Atlantic and the Attorney General, respectively, and also challenge Decision II.
[6] For the reasons that follow, I propose that Heiltsuk Horizon’s applications be dismissed and that Atlantic and the Attorney General’s be granted. This set of reasons will dispose of all five applications and will be filed in each of the above-mentioned Court files.
II. The Solicitation
[7] The Solicitation was launched in response to Canada’s Ocean Protection Plan, which was made public in November 2016 and designed to improve marine safety. Consistent with that plan, the Solicitation’s objective was to increase the CCG’s capacity to conduct rescue-towing operations involving large vessels and container ships off Canada’s West Coast. It was preceded by two requests for information (Solicitation Nos. F7017-160056/A and F7017-160056/B) (RFI A and RFI B) aimed at obtaining industry and prospective bidders’ feedback regarding (i) the profile and features of the towing vessels that would be needed to increase that capacity, and (ii) the draft solicitation documents. The feedback received by PWGSC with respect to the first point contributed to the development of the baseline requirements of the sought-after vessels.
[8] On February 5, 2018, following these consultations, the RFP was released with an initial closing date of March 20, 2018 (Solicitation No. F7017-160056/C). It provides for 26 mandatory technical criteria (i.e. mandatory requirements) and 27 point-rated technical requirements (i.e. rated requirements).
[9] The mandatory technical requirement at issue in these proceedings, MR 12, requires the bidders’ proposed vessels to “exert a minimum continuous bollard pull of no less than 120 tonnes when all required engine driven consumers (shaft generators, etc.) are taken into account.” According to the RFP’s assessment methodology, bidders needed to “provide a certificate of compliance (independently verified) or bollard test output data (in accordance with MSC/Circ 884 section 11.1) less than 10 years old” in order to satisfy this requirement (Amendment No. 008 to the RFP, Modification No. 34, Consolidated Record, Vol. 2, Tab 20 at pp. 01589-01590 (Amendment No. 008)).
[10] Following the release of the RFP, PWGSC held a prospective bidders’ conference that provided an opportunity to ask questions – and suggest amendments to – the RFP (Confidential Affidavit of Henri Legros sworn August 30, 2019, Confidential Tribunal Record – Consolidated Record, Vol. 3, Tab 142 at pp. 12835-12836, para. 15 (the Confidential August 2019 Legros Affidavit)). Following that conference, a total of fourteen amendments were made and the bid closing date was extended to April 13, 2018.
[11] One of the amendments made to the RFP concerned the assessment methodology for MR 12 (Amendment No. 008). Pursuant to Amendment No. 008, it became possible for the bidders to prove their compliance with MR 12 through the provision of a bollard pull certificate or, alternatively, through specified bollard pull calculations. This depended on the age of the proposed vessel (more or less than 10 years old) and on whether a certificate could be produced for that vessel. The amended assessment methodology reads as follows:
The Bidder must provide a certificate of compliance (independently verified) or bollard test output data (in accordance with MSC/Circ 884 section 11.1) less than 10 years old that demonstrates a minimum continuous bollard pull of no less than 120 tonnes when all required engine driven consumers (shaft generators, etc.) are taken into account.
As per "Noble Denton Marine Services - Certification for Towing Vessel Approvability (DNVGL-SE0122), edition March, 2017", in instances where a certificate of continuous bollard pull, less than 10 years old cannot be produced, then for tugs less than 10 years old, bollard pull may be estimated as 1 tonne/100 (certified) BHP of the main engines and for tugs over 10 years old, with a bollard pull certificate greater than 10 years old, Bollard Pull may be accepted as the greater of:
— the certified value reduced by 1% per year of age since the BP test, or
— 1 tonne/100 (certified) BHP of the main engines reduced by 1% per year of age greater than 10.
(Amendment No. 008, Consolidated Record, Vol. 2, Tab 20 at pp. 01589-01590)
[12] All bidders produced independently verified bollard pull certificates in support of their bids. The certificates for Atlantic’s proposed vessels, the Atlantic Eagle and the Atlantic Raven, were issued in 2013 by Det Norske Veritas (DNV), one of seven classification societies permitted by the government of Canada to perform statutorily mandated inspections of large commercial vessels. DNV conducts bollard pull testing in accordance with industry-accepted guidelines established by the International Maritime Organization. All vessels bid in the context of the Solicitation were found to be compliant with MR 12.
[13] On May 24, 2018, PWGSC determined Atlantic to be the top-ranked responsive bidder. As required by article 4.5(a) of the RFP (as amended by Amendment No. 002), Atlantic’s proposed vessels underwent a Vessel Confirmation Assessment (VCA). The aim of the VCA requirement is to allow Canada to verify whether the vessels proposed by the top-ranked responsive bidder (in this case, Atlantic) do in fact possess the features, functionalities and capabilities described in the RFP or the bid, and thereby satisfy the requirements of the Solicitation.
[14] Upon learning that Atlantic’s proposed vessels had undergone a VCA, Heiltsuk Horizon submitted a written objection to PWGSC. In its objection, Heiltsuk Horizon asserted that Atlantic’s proposed vessels lacked the propulsion power required to satisfy MR 12, namely a minimum 120-tonne bollard pull. It also conveyed its concerns about apparent bias on the part of PWGSC in favour of Atlantic’s bid.
[15] On August 9, 2018, PWGSC awarded the contract for the provision of emergency towing vessels to Atlantic.
III. Heiltsuk Horizon’s First Complaint
[16] Heiltsuk Horizon filed its first complaint with the Tribunal regarding the Solicitation a few days after the contract was awarded to Atlantic (the First Complaint). It alleged that although Atlantic’s vessels had been certified to have a bollard pull exceeding 120 tonnes, the vessels’ real bollard pull was significantly lower when all required engine driven consumers were accounted for per MR 12. It also alleged that PWGSC had shown bias by engaging in closed consultations with Atlantic well before Canada’s Ocean Protection Plan had even been announced in November 2016 and by structuring the Solicitation to advantage Atlantic.
[17] As a remedy, Heiltsuk Horizon sought from the Tribunal that Atlantic’s contract be terminated and that Heiltsuk Horizon be awarded the contract instead. In the alternative, it sought compensation for lost profits or lost opportunity as well as reimbursement of both its bid preparation and complaint costs.
[18] On August 23, 2018, the Tribunal accepted the First Complaint for inquiry. In response to that complaint, PWGSC filed a Government Institution Report (the First GIR), claiming that Heiltsuk Horizon’s complaint had no merit. In particular, PWGSC submitted that it was reasonable on the part of the evaluators to accept the bollard pull certificates produced by Atlantic since they had been independently verified, were less than 10 years old, and demonstrated that the two proposed vessels had a bollard pull well beyond the minimum set out in MR 12. PWGSC further submitted that the use of bollard pull certificates was a standard practice in the industry and that the standard bollard pull testing procedure required that “all auxiliary equipment such as pumps, generators and other equipment which are driven from the main engine(s) or propeller shaft(s) in normal operation of the vessel” be connected during the test and, therefore, that all required engine driven consumers be taken into account (First GIR, Consolidated Record, Vol. 2, Tab 34 at p. 01995, paras. 29-30).
[19] PWGSC also claimed that Heiltsuk Horizon’s calculations, purportedly demonstrating that Atlantic’s proposed vessels had a pulling power far below the minimum set out in MR 12 when all required engine driven consumers are taken into account, were based on erroneous assumptions.
[20] Finally, PWGSC denied that it had worked in private with Atlantic, noting that Heiltsuk Horizon’s allegations of bias were based exclusively on an informal August 2018 LinkedIn post (the social media post). That social media post was authored by one of Atlantic’s employees to congratulate Atlantic’s team for “more than two years” of hard work on the Solicitation (First GIR, Consolidated Record at p. 02001, paras. 50-51). According to PWGSC, the social media post simply alluded to the approximate time period that had elapsed between RFI A, issued in November 2016, and contract award in August 2018. The release of RFI A, which preceded the Solicitation, marked the beginning of any consultations between PWGSC and industry members, including Heiltsuk Horizon and Atlantic.
[21] On September 27, 2018, Heiltsuk Horizon made a request for production of documents to the Tribunal, claiming that there were “significant gaps” in the documentation provided by PWGSC with the First GIR (Letter from Marc McLaren-Caux, counsel to Horizon Maritime Services, to the Tribunal (27 September 2018), Consolidated Record, Vol. 2, Tab 41 at p. 02218). On October 11, 2018, the Tribunal granted that request in part and ordered PWGSC to produce, among other documents, Atlantic’s complete bid and the evaluators’ individual and collective notes on that bid’s evaluation. These were provided to Heiltsuk Horizon on October 17, 2018.
[22] A week later, that is on October 24, 2018, Atlantic, having been granted intervener status by the Tribunal, filed a response to the First Complaint. This response was filed together with affidavit evidence from Mr. Gilles Gagnon, Atlantic’s Vice-President and General Manager, and Mr. Dan Vyselaar, its Director of Technology and Development. Mr. Gagnon addressed, for the most part, the bollard pull tests Atlantic’s two vessels had undergone, DNV’s testing protocol, and Heiltsuk Horizon’s bias allegations (see Affidavit of Gilles Gagnon sworn October 2, 2018 (with exhibits), Consolidated Record, Vol. 2, Tab 57 at pp. 02310-02358). Mr. Vyselaar testified about Atlantic’s vessels’ capabilities, noting that those vessels are equipped with two auxiliary power generators operating independently of the main propulsion engines and providing additional sources of power to the vessels (see Affidavit of Dan Vyselaar sworn November 26, 2018 (with exhibits), Consolidated Record, Vol. 2, Tab 57 at pp. 02666-02728 (the Vyselaar Affidavit)).
[23] According to Mr. Vyselaar, it is therefore “completely normal for these vessels to operate with no required engine driven consumers, as they have other generating capability to power all electrical power consumers on the ship during normal operations,” which means that “there are no ‘required engine driven consumers’ to be deducted” from either the Atlantic Eagle or the Atlantic Raven (Vyselaar Affidavit, Consolidated Record at pp. 02667-02669, paras. 4-9). Mr. Vyselaar then took issue with Heiltsuk Horizon’s assertion that the bollard pull certificates provided by Atlantic were deficient, claiming that this assertion was based on two fundamental erroneous assumptions: (i) that the shaft generators are the only sources of electric power on board the vessels, making them required engine driven consumers; and (ii) that according to MR 12, absolute full power is to be expended on all of the vessels’ capabilities simultaneously (Vyselaar Affidavit, Consolidated Record at p. 02670, paras. 13-17).
[24] Heiltsuk Horizon responded to the First GIR and to Atlantic’s submissions on November 13, 2018. In support of its responding submissions, Heiltsuk Horizon filed the affidavit of Horizon Maritime Services Ltd.’s Chief Executive Officer, Mr. Sean Leet. In his affidavit, Mr. Leet opined that MR 12 requires the bidders to demonstrate “a minimum effective bollard pull, that accounts for the negative effect of engine driven consumers, including shaft generators, on propulsion power and bollard pull, which are critically important to normal, emergency towing operations” (Affidavit of Sean Leet sworn November 13, 2018, Consolidated Record, Vol. 2, Tab. 64 at p. 02426, para. 4 (the Leet Affidavit)) (emphasis in original). He concluded that the bollard pull certificates provided by Atlantic did not satisfy MR 12 because there was no evidence on those certificates that any allowance had been made to account “for the draw of power by the shaft generators that would be required to power winches, thrusters and other heavy consumers under normal, emergency towing operations” (Leet Affidavit, Consolidated Record at p. 02429, para. 17). Had this been done, he added, the actual propulsion engine power of the vessels would have been noted as lower than the total engine power (Leet Affidavit, Consolidated Record at p. 02429, para. 18). Mr. Leet further claimed that these deficiencies in Atlantic’s certificates were confirmed by DNV in an email to him dated November 8, 2018.
[25] On November 26, 2018, PWGSC and Atlantic filed further submissions, as permitted by the Tribunal, on the issue of MR 12 compliance. These were filed together with the affidavit evidence of Mr. Henri Legros, a CCG Project Manager designated as the Solicitation’s “Technical Authority”. Mr. Legros affirmed that the language of MR 12 had been “specifically designed so that the bidders whose vessels had an independently verified certificate that was less than ten years old were not required to go through the significant undertaking and expense of undertaking a new bollard pull test and then providing test output data to demonstrate compliance with the requirement.” MR 12 requires that bidders provide either a certificate or test output data, not both (Confidential Affidavit of Henri Legros sworn November 26, 2018, Consolidated Record, Vol. 2, Tab. 71 at p. 02610, para. 9 (the Confidential November 2018 Legros Affidavit)).
[26] The next day, that is on November 27, 2018, Heiltsuk Horizon replied to these additional submissions. It claimed that Atlantic had failed to demonstrate, on the face of its bid, that its vessels could exert a continuous bollard pull of 120 tonnes when all engine driven consumers required in emergency towing operations are taken into account, as required by MR 12. Heiltsuk Horizon further claimed that Atlantic even conceded that no engine driven consumers had been taken into account when DNV conducted the bollard pull testing of its two vessels, contrary to that requirement. It also contended that Atlantic’s reference to the auxiliary generators on board each of its vessels was not included in its bids and therefore should not be considered by the Tribunal. Finally, Heiltsuk Horizon characterized as “nonsensical” PWGSC’s reliance on the testing authorities in determining compliance with MR 12.
[27] In support of its reply submissions, Heiltsuk Horizon produced before the Tribunal the affidavits of two Chief Engineers, Mr. John Trainor and Mr. Dustin Boyd, and of a Master Mariner, Mr. Adam Myers. These affidavits were submitted by Heiltsuk Horizon with a view to assisting the Tribunal in its assessment of whether PWGSC had erred in concluding that the bollard pull certificates provided by Atlantic satisfied MR 12 and whether the evidence and submissions provided by PWGSC and Atlantic in their response to the First Complaint were “credible and/or valid”. The three deponents opined that these two questions should be answered in the negative.
IV. Decision I
[28] On January 2, 2019, the Tribunal determined that the First Complaint was valid in part (Tribunal File No. PR-2018-023). It recommended that PWGSC re-evaluate MR 12 for all of the bids received prior to bid closing. The Tribunal further recommended that the contract remain with Atlantic until the completion of the re-evaluation and that it be terminated should that re-evaluation result in a top-ranked responsive bidder other than Atlantic. The contract would then be awarded to that top-ranked bidder.
[29] Should Heiltsuk Horizon become the new top-ranked responsive bidder as a result of the re-evaluation, the Tribunal recommended that PWGSC compensate Heiltsuk Horizon for any profit it would have earned between the moment of contract award to Atlantic and the date of a new contract award to Heiltsuk Horizon. If, however, PWGSC were to consider termination of the contract with Atlantic to be unfeasible for operational reasons, Heiltsuk Horizon should be compensated for lost profits (Decision I at paras. 99-100).
[30] The Tribunal issued its statement of reasons on January 7, 2019. It determined that it was unreasonable for PWGSC to conclude that Atlantic’s bid, on its face, satisfied MR 12 for essentially two reasons:
On their face, neither of Atlantic’s bollard pull certificates noted deductions for engine driven consumers, a fact not disputed by Atlantic, which contended that there was no need for such deductions given the presence of auxiliary generators on both of its bid vessels;
one of the evaluators had chosen to concur with the rest of the evaluation team, “tak[ing] it for granted” that Atlantic’s bid was compliant with MR 12 despite the fact that there was no explicit demonstration of compliance on the face of the certificates (Decision I at paras. 60-62; emphasis in original).
[31] While the Tribunal acknowledged that it owes deference to the expertise of the evaluation team “as the standard of reasonableness requires,” it found “no evidence that the evaluation team applied itself to consider the issue raised in the one member’s handwritten note, i.e. that [Atlantic’s] bid, on its face, did not address the engine-driven consumer requirement.” The Tribunal added that assumptions during a procurement evaluation process are “not a means by which PWGSC can provide justification, transparency and intelligibility within a decision-making process.” Therefore, in the Tribunal’s view, PWGSC could not simply rely on the certifying body – DNV – to determine which power-driven consumers needed to be accounted for in assessing compliance with MR 12. This is because DNV had conducted bollard pull testing on Atlantic’s vessels in 2013, long before the Solicitation. DNV would not – and could not – have had any reference point to use with respect to the technical requirements of the 2018 RFP (Decision I at paras. 64, 67-68; internal quotation marks omitted).
[32] As for Heiltsuk Horizon’s allegations of bias, the Tribunal found these to be without merit. It began by noting that it generally “presumes the good faith and honesty both of the bidders and of the public servants mandated to evaluate their bid,” and that there must be some evidentiary basis in support of an allegation of bias. The Tribunal then determined that the evidence supporting Heiltsuk Horizon’s claim of bias – a single social media post authored by one of Atlantic’s employees – neither had the requisite probative value, nor sufficed to support such a claim (Decision I at paras. 74-76; internal quotation marks omitted). The Tribunal was not satisfied either that Heiltsuk Horizon had presented evidence substantiating its claim that the terms of the RFP, particularly the maximum vessel age requirement (MR 18), were structured in a manner to favor Atlantic’s bid or exclude other bids. The maximum vessel age requirement had been broadened from 15 years in RFI B, issued in July 2017, to 20 years in the RFP. The Tribunal accepted PWGSC’s explanation that that change had been made to increase rather than decrease competition (Decision I at paras. 77-78).
[33] Both Heiltsuk Horizon and Atlantic challenged Decision I. Heiltsuk Horizon claims that the Tribunal fatally erred by recommending that all bids be re-evaluated, despite having concluded that Atlantic’s bid was non-compliant (Court file A-57-19). It takes issue as well with the dismissal of its allegations of bias, claiming that the Tribunal breached its duty of procedural fairness in refusing to order the production of any documents relevant to those allegations.
[34] Heiltsuk Horizon also took initial steps to obtain an interim order enjoining PWGSC from carrying out the re-evaluation recommended by the Tribunal pending the outcome of its judicial review application. However, Heiltsuk Horizon did not follow through with its pursuit of such relief.
[35] For its part, Atlantic challenged Decision I (Court file A-55-19) on the basis that the Tribunal improperly and unreasonably applied an interpretation of MR 12 that is inconsistent with how the evaluators and the bidders understood said requirement. Atlantic claimed that the Tribunal should have disposed of Heiltsuk Horizon’s First Complaint by dismissing it in its entirety.
[36] Atlantic discontinued its application for judicial review of Decision I in September 2019. In the present proceedings, it claims it did so because any issue arising from Decision I became moot when the re-evaluation recommended therein was undertaken and completed. For the same reason, it contends that Heiltsuk Horizon’s challenge to Decision I is also moot and should therefore not be entertained by this Court.
V. The re-evaluation and subsequent complaints
[37] On January 22, 2019, PWGSC advised the Tribunal that it intended to implement Decision I to the greatest extent possible and that the re-evaluation would be conducted in accordance with the Tribunal’s recommendations as well as with the terms of the RFP. A Bid Evaluation Plan was developed for these purposes and a five-member re-evaluation team of independent evaluators, totalling 89 years of experience in the marine sector, was put together. None of the members had been part of the first evaluation team.
[38] On May 27, 2019, PWGSC issued a report on the results of the re-evaluation (see Bid Re-Evaluation Results for MR 12 Only, Confidential Tribunal Record – Consolidated Record, Vol. 3, Tab 139 at pp. 12583-12596 (the Re-Evaluation Report)). The report concluded that all bids, including Atlantic’s, were compliant with MR 12. That meant that the contract had been properly awarded to Atlantic.
[39] In particular, the Re-Evaluation Report indicates that the members of the re-evaluation team were asked to confirm their understanding of “required” in the phrase “when all required engine driven consumers (shaft generators, etc.) are taken into account.” The evaluators achieved consensus that “required” means “those consumers that are required to operate the vessel safely at sea and for the purpose of the Bollard Pull test as reflected in the Classification Society Bollard Pull testing procedure” (Re-Evaluation Report, Confidential Tribunal Record – Consolidated Record at p. 12589).
[40] The Re-Evaluation Report also indicates that the evaluators were asked to provide their views on how, as noted on Atlantic’s bollard pull certificates, the engine power could be equal to the propulsion engine power given that the required engine driven consumers had been connected during the bollard pull test in accordance with DNV’s testing procedures. The evaluators noted that “significant consumers such as shaft generators would not be required during the Bollard Pull test and that those consumers such as communication equipment, radar, lights machinery ventilation fans would use minimal power that would be supplied by alternate sources of power.” In the case of Atlantic’s vessels, they noted that the bid’s specifications “indicated the availability of auxiliary generators that would provide this functionality” (Re-Evaluation Report, Confidential Tribunal Record – Consolidated Record at p. 12590).
[41] The results of the re-evaluation gave rise to three new complaints on the part of Heiltsuk Horizon. On June 7, 2019, Heiltsuk Horizon submitted that PWGSC had unreasonably re-evaluated the compliance of Atlantic’s bid with MR 12 by wilfully ignoring the Tribunal’s determination in Decision I and had therefore essentially performed the same evaluation that the Tribunal had previously found to be unreasonable. It also complained that PWGSC had necessarily engaged in impermissible bid repair in order to support its finding that Atlantic was still compliant with MR 12 (the Second Complaint).
[42] On June 11, 2019, the Tribunal accepted the Second Complaint for inquiry and on July 16, 2019, PWGSC provided its response to that complaint (the Second GIR). PWGSC claimed in the Second GIR that Heiltsuk Horizon’s allegations as to flaws in the re-evaluation process were based on a misinterpretation of the Tribunal’s findings in Decision I. In Heiltsuk Horizon’s reading of Decision I, the Tribunal had found Atlantic’s bid to be non-compliant with MR 12. Such an interpretation precluded an outcome whereby Atlantic could emerge as the top-ranked responsive bidder upon re-evaluation. In contrast, PWGSC contended that the Tribunal’s primary concern in Decision I was one of process; there were no substantive findings pertaining to compliance. In PWGSC’s view, the Tribunal was mainly concerned that the evaluators had relied on an assumption based on the documents provided in Atlantic’s bid instead of applying themselves to determine whether the information contained therein supported a conclusion of compliance (Second GIR, Consolidated Record, Vol. 2, Tab. 98 at pp. 02975-02976, paras. 52-55).
[43] PWGSC also took issue with Heiltsuk Horizon’s allegations that it had impermissibly engaged in bid repair, underscoring the fact that no information or documentation had been requested by PWGSC, the CCG, or the re-evaluation team from Atlantic during the re-evaluation process. Nor had Atlantic provided any such information or documentation for the purposes of the re-evaluation (Second GIR, Consolidated Record at p. 02977, paras. 61-62).
[44] The Second GIR was filed together with affidavit evidence from Mr. Legros, who had assumed the role of Technical Evaluation Team Leader (TETL) for the re-evaluation.
[45] On July 30, 2019, Heiltsuk Horizon, based on the information disclosed in the Second GIR and “out of an abundance of caution,” filed its third complaint. It alleged this time that PWGSC had not only failed to correctly re-evaluate the compliance of Atlantic’s bid with MR 12 and the relevant assessment methodology, but that it had also failed to correctly evaluate all of the bids (the Third Complaint). Moreover, Heiltsuk Horizon argued that the evaluators’ reliance on the classification societies’ bollard pull testing rules and procedures amounted to impermissible bid repair.
[46] The Tribunal accepted the Third Complaint for inquiry. On September 3, 2019, PWGSC filed its response, asking the Tribunal to deny this latest complaint as being untimely, subsumed in the allegations of the Second Complaint and therefore redundant, and without merit (the Third GIR). It contended that the re-evaluation had been conducted in accordance with a plain reading, common sense, and reasonable interpretation of MR 12, and that this interpretation was entitled to deference. Moreover, PWGSC asserted that the interpretation advanced by Heiltsuk Horizon would require the evaluators to determine in their discretion which engine driven consumers are “required” for emergency towing operations, thereby undermining the very purpose of allowing bidders to submit bollard pull certificates to demonstrate compliance with MR 12 (Third GIR, Confidential Tribunal Record – Consolidated Record, Vol. 3, Tab 142 at pp. 12813, 12817, 12820, paras. 24, 25, 39, 49-50).
[47] PWGSC also claimed that it was reasonable to allow the re-evaluation team to rely on the classification societies’ internationally recognized bollard pull testing rules and procedures. This is because bollard pull testing is conducted in accordance with those rules and procedures, which are incorporated into the certificates either by express reference or necessary implication (Third GIR, Confidential Tribunal Record – Consolidated Record at pp. 12822-12824, paras. 58-59). As a result, such reliance could not be considered impermissible bid repair.
[48] On September 17, 2019, Heiltsuk Horizon filed its fourth complaint in respect of the Solicitation “out of an abundance of caution.” It contended that all the vessels bid in response to the Solicitation, except its own, were non-compliant with MR 12. However, the Tribunal, being of the view that this latest complaint raised essentially the same facts and issues as the Third Complaint, declined to conduct an inquiry.
VI. Decision II
[49] The Second and Third Complaints were determined by the Tribunal on October 18, 2019. That panel was differently constituted from the panel that had heard the First Complaint. A single statement of reasons for both matters (Tribunal File Nos. PR-2019-020 and PR-2019-025) was issued on November 1, 2018.
[50] The Tribunal found these two complaints to be valid in part and recommended a second re-evaluation of all of the bids with respect to their compliance with MR 12. In particular, it found that the re-evaluation undertaken by PWGSC as a result of Decision I proceeded from an incorrect interpretation of MR 12 and therefore remained unreasonable. The Tribunal held that a “crucial component” of Decision I was the finding that “required engine driven consumers” in MR 12 signifies “the power-driven consumers required for normal operations of emergency towing vessels” (Decision II at para. 54, citing Decision I at para. 64; internal quotation marks omitted). This standard, according to the Tribunal, ensures that these vessels will have “adequate power to tow a vessel in distress, in order to ensure marine safety and protect British Columbia’s coastline” (Decision II at para. 56).
[51] The Tribunal concluded that the re-evaluation team had ignored this critical direction from the Tribunal in Decision I by interpreting “required engine driven consumers” to mean “those consumers that are required to operate safely at sea and for the purpose of the Bollard Pull test as reflected by the Classification Society Bollard Pull testing procedure.” According to the Tribunal, the evaluators had thereby improperly relied on the bid vessels’ bollard pull certificates “without taking the further step of considering which engine-driven consumers would be required for emergency towing operations and making the according deductions from the certified bollard pull” (Decision II at para. 57; internal quotation marks omitted).
[52] In its discussion on remedy, the Tribunal noted Heiltsuk Horizon’s claim that “there [was] more than enough information to conclude that all bids were improperly evaluated.” However, the Tribunal held that it was beyond its expertise and role to determine the compliance of each bid and that this task, given its highly technical and factual nature, should be left to the evaluators (Decision II at paras. 66-68; internal quotation marks omitted).
[53] Moreover, the Tribunal stated that “it may not be possible to conduct a proper re-evaluation of MR 12 without seeking additional information from bidders.” The Tribunal noted that the RFP allows evaluators “to seek clarification or verification from bidders regarding any or all information provided by them with respect to the bid solicitation and verify any information provided by bidders through independent research, use of any government resources or by contacting third parties.” It went on to expressly allow evaluators “to request clarification and supplementary information from bidders regarding their compliance with MR 12” (Decision II at para. 69; internal quotation marks omitted).
[54] The Tribunal then outlined some of the parameters that should guide the new evaluation:
[70] For clarity, this new re-evaluation will allow evaluators to rely on bollard pull certificates as a starting point, but it will require that evaluators assess deductions for all engine-driven consumers required in emergency towing operations. This means evaluators are required to use their expertise to assess bids as to which consumers are engine-driven, which are required for emergency towing operations, and how much each required consumer would deduct from the certified bollard pull. These factors must be assessed on a vessel-by-vessel basis, taking into account the specific design of the power supply of each vessel and whether the vessel relies on engine-driven consumers at all. Evaluators must ensure that a vessel would have a functional bollard pull of at least 120 tonnes, even during an emergency towing operation when power may be drawn away from the engine to power other consumers.
[71] For further clarity, evaluators are not necessarily required to account for every single con