Airbus Helicopters Canada Limited v. Canada (Attorney General)

Airbus Helicopters Canada Limited v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-02-27
Neutral citation
2015 FC 257
File numbers
T-1097-13
Decision Content
Date: 20150227
Docket: T-1097-13
Citation: 2015 FC 257
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 27, 2015
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
AIRBUS HELICOPTERS CANADA LIMITED
Applicant
and
THE ATTORNEY GENERAL OF CANADA
and
THE MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
and
BELL HELICOPTER TEXTRON CANADA LTD.
Respondents
JUDGMENT AND REASONS
I. Introduction [1] Airbus Helicopters Canada Limited [Airbus] is challenging the contract award process conducted on behalf of the Government of Canada by the Minister of Public Works and Government Services Canada [PWGSC], which concluded with the purchase of light-lift helicopters to replace the aging fleet used by the Canadian Coast Guard [CCG].
[2] The contract was eventually awarded to Bell Helicopter Textron Canada Ltd. [Bell] on May 9, 2014 (affidavit of Sandra Howell, September 19, 2014). In fact, Airbus chose not to bid in response to the request for proposals that was issued by PWGSC on April 3, 2013, following a consultation process with the industry. Airbus participated in the process leading up to the request for proposals. Only one bidder, Bell, responded to Solicitation No. F7013-120014/C, which closed on June 4, 2013.
[3] The contract is for the purchase of 15 helicopters, and could be worth up to $172 million, according to the press release that announced the awarding of the contract on May 12, 2014.
[4] An abridged chronology might be helpful in explaining the process followed in granting the contract:
March 2012: Federal budget
August 17, 2012: Letter to potential bidders in the industry inviting them to express an interest in the project
August 29, 2012: First reaction from Airbus
September 4, 2012: Meeting day with industry
September 6, 2012: First day meeting one-on-one with Airbus
November 15, 2012: Second day meeting one-on-one with Airbus
January 11, 2012: Letter from Airbus clarifying, among other things, the Detailed Mission Requirements it wants to receive
February 6, 2013: Third day meeting one-on-one with Airbus; Airbus announces it is withdrawing
February 13, 2013: PWGSC reply
March 4, 2013: Fourth day meeting one-on-one with Airbus
18 March 2013: Another Airbus letter on Detailed Mission Requirements
April 3, 2013: Opening of the tendering period: request for proposals
June 4, 2013: Close of the tendering period
May 9, 2014: Contract awarded
[5] This is therefore an application from Airbus for judicial review under section 18.1 of the Federal Courts Act, RSC 1985, c F-7, challenging the process that led to the request for proposals and ultimately the contract that was awarded in May 2014. Obviously, since Airbus did not submit a bid, the request for proposals itself is not being challenged, but rather the refusal by PWGSC to reconsider and modify certain technical requirements contained in said request for proposals. According to Airbus, requests for modifications were refused despite its often repeated claims that the requirements were tailored specifically to suit Bell. We are therefore dealing with events prior to the request for proposals, not after it was issued.
II. The parties [6] Both Airbus (Eurocopter at the time the procurement process was initiated) and Bell are well known in the aerospace industry. They both manufacture helicopters and they are competitors. There are other competitors in this market, but not many. There are only three serious competitors besides the two protagonists in this case. In fact, the top five players, along with a few others, all responded to a letter of interest, but only three pursued this interest, including, of course, Airbus and Bell. Ultimately, Bell was the only manufacturer to bid.
[7] Airbus and Bell are Canadian subsidiaries of companies headquartered outside Canada. As for the Government of Canada, PWGSC is given responsibility for procurement processes through its enabling legislation (Department of Public Works and Government Services Act, SC 1996, c 16), which states that “the Minister may, on behalf of the Government of Canada, enter into contracts for the performance of any matter or thing that falls within the ambit of the Minister’s powers, duties or functions” (section 20). Furthermore, given that the helicopters were intended to renew the CCG’s helicopter fleet, the Department of Fisheries and Oceans was involved in the procurement process (the CCG is an entity within that department and its responsible minister is the Minister of Fisheries and Oceans; Oceans Act, SC 1996, c 31, section 41). Finally, the Department of Transport was also involved given that it is responsible for operating the CCG helicopter fleet (affidavit of R. Wight). As we will see, other departments also contributed to the process.
[8] A users group was therefore created once the Government of Canada had announced in its March 2012 budget that funds would be set aside for the purchase of helicopters. This group was composed of officials from different units within the CCG and the Department of Transport. However, PWGSC was ultimately responsible for managing the procurement process with the CCG, which was in charge of defining the technical requirements, since it was familiar with the various operational requirements. The first draft of the technical requirements was prepared by this group. The consultations were conducted based on this document, which was modified over the ensuing months. This document was the basis for the draft request for proposals that was completed after the second round of one-on-one meetings with interested companies. Said document is understood to have been prepared between late November 2012 and early January 2013. I will be returning to the governance structure of the procurement process.
[9] Since this is not a case in which the law predominates, it is necessary to review the facts with a certain degree of detail. To succeed, the applicant must meet the burden imposed on it. For their part, the respondents argue not only that the burden has not been met, but that their evidence is clear and refutes the applicant’s case.
III. The theory of the case and the applicant’s evidence [10] The theory of the case put forward by Airbus is ultimately quite simple. The applicant argues that the request for proposals that resulted from the consultations conducted by government representatives was tailored to enable Bell to win. Airbus contends that the technical requirements were designed based on the specifications for the aircraft provided by Bell (the Bell 429). Airbus goes as far as to maintain in its memorandum of fact and law that
[translation]
. . . despite the appearance of an impartial, fair, open and transparent competitive call for proposals process, the Government of Canada had decided from the start to award the contract to Bell, and that the procurement process was conducted in a manner that ensured that the Bell 429 would be the only aircraft that would meet the project’s technical specifications.
[Para 3]
(See, to the same effect, the affidavit of Guillaume Leprince, Airbus Vice President of Sales and Marketing, paras 21 to 24. It was Mr. Leprince who presented the evidence on behalf of Airbus. The company also used the services of an expert.)
[11] This is not a trivial accusation. At the hearing, counsel for Airbus maintained that they were not arguing that there had been a conspiracy within the government. Nevertheless, the theory of the case maintains that from the very beginning of the process, the technical requirements substantially favoured the Bell 429. Requests by Airbus to reduce the technical requirements did not receive the desired response. Moreover, Airbus complains that on numerous occasions, it requested additional information about the profiles of the missions to be conducted by the CCG so that it could offer alternatives. Rather than satisfy the requirements imposed by the process, Airbus sought to identify the customer’s needs in order to address them outside of the constraints of the technical requirements. Clearly, Airbus wanted to avoid, and even challenge, the onerous technical requirements imposed by PWGSC by arguing that they could not be required based on the type of work to be performed by the new helicopters (Mr. Leprince’s affidavit, paras. 39-41).
[12] There is no doubt in my mind that Airbus realized before the consultation process had even begun that it could not easily meet the original technical requirements, because it very early on asked not to determine if it could meet the requirements, but rather to receive the CCG mission profiles. By August 29, 2012, Airbus was already complaining. The following complaints can be found in its response to the letter of interest issued by the government on August 17, 2012:
1-4 Insert your key conclusions and recommendations. Two pages maximum – use the other sections to provide details
Eurocopter welcomes GoC decision to move ahead with replacement of the current CCG fleet. As planned, holding an Industry Engagement Session as well as one on one sessions with potential bidders to finalize the requirements of the RFP is certainly a step in the right direction. Our comments and recommendations by analysing the contents of the LOI and the draft copy of the mission requirements include:
- Mission Oriented RFP: GoC should focus on the specific mission requirements of the CCG and be careful on including specifications of a given platform as a reference for the RFP. This approach may limit the numbers of options that may be available to fulfill the mission requirements and also curtail the competition amongst the bidders. We are sure GoC wants the best for CCG missions and would be open to discussing in detail the operational details on the intended use of different class of helicopters. This way Bidders [sic] will not only be able to answer the requirements but also propose their respective solutions to the missions including value added product features that may not have been thought about for the CCG mission needs.
[At page 6 of 16]
Further on, we read the following in the conclusion:
9-1 Indicate any other areas of concern that Canada may be interested/concerned with that would aid in providing a recommendation for improvement.
Requirements should be more mission oriented than technically driven. We invite GoC to work with the industry to provide a solution fitting the operational requirements. GoC should be open to alternative solutions regardless of the type of aircraft (light, medium, polar) to ensure suitable solutions for the Canadian Coast Guard of Canada.
Public works should carefully define requirements to allow several platforms to be compliant in order to have a fair competition for the benefit of Canada.
[At page 16 of 16]
Airbus had already consulted the Preliminary Draft CCG Helicopter Requirements Document—Light and Medium Helicopters, Industry Day, September 2012, which listed a series of technical requirements and was provided to interested parties for purposes of the initial discussions between the government and industry, which took place on September 4, 2012.
[13] Moreover, as early as the industry day held on September 4, 2012, access was provided to seven CCG mission profiles describing CCG activities. A document entitled CCG Helicopter Mission Profile Document was made available. The applicant argues that the description there is very short. The preliminary technical requirements developed for consultation purposes in the Preliminary Draft CCG Helicopter Requirements Document—Light and Medium Helicopters, Industry Day, September 2012, are considered by the applicant to be too onerous and specific. It wanted to offer alternatives based on mission profiles. Airbus continued in this vein up until the request for proposals was issued on April 3, 2013, and the same arguments are presented in the application for judicial review.
[14] In addition to quickly forming the opinion that the technical requirements could not easily be satisfied, the applicant decided that they favoured Bell, to the detriment of Airbus. This characterization is very general in nature, and Airbus only precisely identified a few technical requirements. The evidence presented through the affidavit of G. Leprince referred to the individual consultation session held on September 6, 2012. We read the following at paragraph 59:
[translation]
59. We then explained how the Preliminary Requirements for the light-lift helicopters were discriminatory to other potential suppliers, including Eurocopter Canada, AgustaWestland, MD Helicopters and Sikorsky. With regard to light-lift helicopters, we highlighted the following:
(a) requirement 6.4 states that the aircraft must be certified to operate and fly at an exterior ambient air temperature between -40°C and +50°C, while the only aircraft certified to fly at -40°C is the Bell 429;
(b) requirement 7.3.5.1.2 states that the aircraft must be equipped with a bleed air heater system or equivalent, with an appropriate de-icing capacity to operate in winter conditions at a temperature of -40°C, while the only aircraft that meets this requirement is the Bell 429; and
(c) the combination of requirements 7.3.5.12.1 and 7.3.4.2.1 requires that the aircraft be equipped with skid landing gear and a four-axis digital automatic flight control system and flight director, while the only aircraft that meets these requirements is the Bell 429.
We do not find any greater precision coming directly from Airbus during the procurement process with regard to the allegation that the technical requirements were modeled after the technical specifications of the Bell 429. What is found through an examination of the evidence is that the alternatives proposed by Airbus over time in fact reduced the technical requirements. There is therefore a connection between the technical requirements considered by Airbus to be too stringent and the mission profiles: if the profiles were shown not to reflect reality, it might be possible to demand changes to the associated requirements.
[15] Thus, well after the request-for-proposals process had already begun, Airbus was still corresponding with PWGSC. This correspondence continued along the same lines, i.e., with Airbus claiming that the requirements were too stringent to allow it to participate in the request-for-proposals process. Some of these requirements had even been strengthened.
[16] On April 17, May 2, and May 17, 2013, Airbus wrote to PWGSC to continue to complain about the mission profiles, arguing that the technical requirements were too stringent for the mission profiles identified in these letters.
[17] The third individual consultation session, held on February 6, 2013, focused on the comments of a senior Airbus official, who announced that the applicant could no longer continue its participation in the process. What had become a mantra was repeated yet again:
This confirms what Eurocopter [since become Airbus Helicopters Canada Limited] has been telling you for the last 6 months. The lack of real mission understanding, working only on technical parameters prevents us to understand the rationale behind the changes of requirements.
It is in the Government of Canada [sic] best interest to present mission oriented requirements to the industry in order to obtain a best value proposal for the Coast Guards [sic]. We already addressed this issue several times in verbal and in written communications. This is the process followed by the Fixed Wing SAR project for which the industry consultation is constructively ongoing.
[Exhibit P-30, affidavit of Mr. Leprince]
[18] PWGSC responded precisely to the specific elements raised in the February 6 letter in its letter of February 13, 2013. I note in particular its response to the Airbus comment to the effect that it had been serving the CCG with its helicopters for 25 years: “It is understood that Eurocopter has been serving the CCG for over 25 years and we believe that Eurocopter would have a great understanding of how the helicopter fleet is currently operating to achieve their mandate”. The applicant continued to complain about having insufficient information with regard to mission profiles, or that the profiles did not justify the technical requirements that were being imposed.
[19] In fact, Airbus went further than to complain about the mission profiles provided. In letters sent by Airbus to PWGSC on January 11 and March 18, 2013, Airbus clarified the information it was seeking (Exhibits P-26 and P-33 in the affidavit of G. Leprince). I am reproducing the excerpt, which is identical in the two letters:
The following are a few examples of Detail Mission Requirements as opposed to technical requirements that could be provided:
• Number of bases to be equipped for each type
• Number of vessels equipped for each type
• Description of Night Mission
◦ Number of passengers
◦ Length
◦ Load
• Distance Flown from Shore to Ship for each mission
• Number of cargo / pax for each mission
• Percentage of usage for each mission of the helicopter type, per year
• Availability targets per type, per year
• Description of the loads
• How far do you need to go and with how many pax’s
[Letter of January 11, 2013]
Regarding the mission requirements requested, our previous communications were asking for detailed Mission Requirements as opposed to technical requirements including but not limited to the following:
• Number of bases to be equipped for each type
• Number of vessels equipped for each type
• Description of Night Mission
◦ Number of passengers
◦ Length
◦ Load
• Distance Flown from Shore to Ship for each mission
• Number of cargo / pax for each mission
• Percentage of usage for each mission of the helicopter type, per year
• Availability targets per type, per year
• Description of the loads
• How far do you need to go and with how many pax’s
[Letter of March 18, 2013]
I am far from being persuaded that this is truly an issue of “mission requirements”. It is no longer “mission requirements” at issue here but the use of the helicopter fleet: where, when and how the aircraft will be used, rather than responding to the question of what was involved in the missions. These requests can be seen to originate in the response provided by Airbus at the very first one-on-one meeting on September 6, 2012. The same list, in the same order, can be found there.
[20] What is not lacking is repeated requests from Airbus to be given mission profiles in order to offer alternatives. The evidence does not show what these alternatives could have been other than to claim that the requirements were too stringent based on the missions to be carried out. As has already been pointed out, for some important elements, the alternatives would ultimately be to decrease the desired performance.
[21] In fact, the technical requirements identified by Airbus before this Court always appear to suggest that its aircraft is less efficient, and not that the requirements are unprecedented. When it comes to a general allegation, the Court is referred to the working documents, in the form of tables, prepared by Airbus, which are intended to demonstrate that the technical requirements only favour Bell (in particular Exhibit P-46 in Mr. Leprince’s affidavit). The only real precision is actually found in Mr. Leprince’s affidavit, at paragraph 59, the content of which is reproduced at paragraph 13 of these reasons. The evidence will show, moreover, that requirements 6.4 and 7.3.5.1.2 were actually amended during the consultations.
[22] Following the fourth day of one-on-one meetings held on March 4, 2013, Airbus provided details of the technical requirements that would limit its ability to bid (letter of March 21, 2013, and affidavit of G. Leprince, at paras 96 to 104). The clear implication is that the aircraft that Airbus had available did not meet the requirements for payload and range. These are not simple details. The alternative proposed by Airbus was to reduce the range or payload. Airbus also complained about the required blade folding width for the helicopter. This time no alternative was offered other than to work with the CCG. In terms of the altitude limit for in-ground effect hover, the alternative was to reduce the payload or the required altitude (from 7,000 to 6,000 feet). There was also an issue with regard to the flight director.
[23] The response received from PWGSC on April 4 was that the requested reductions to the payload or range represented decreases of 9% and 7% in the requirements, which would have a significant impact on operations. The same comment was made with regard to the altitude limit for in-ground effect hover. The response concerning the required blade folding for helicopter parking was particularly unequivocal:
Your March 21, 2013 letter repeats Eurocopter’s request in the Round 4 meeting of March 12, 2013 that CCG’s maximum blade folding width requirement be 3.8 m to allow Eurocopter to bid the EC 135. Each and every one of Canada’s requirement (sic) is based on the missions as described in the Mission Profile document provided to all bidders, and not on specific makes or models.
As was specifically described in the March 12, 2013 meeting with Eurocopter, given CCG’s shipboard hangar door width of 4.08 m, providing a maximum blade folding width of 3.8 m provides approximately 0.14 m of space between the helicopter and each side of the hangar door. A 0.14 m gap between the door and the helicopter is insufficient for at-sea operations.
[24] The applicant offered two additional elements in support of its position. Airbus presented a witness, Corey Taylor, who had examined the available documentation and concluded that the original request for proposals, on which comments from the industry were requested, unduly favoured Bell. The other element was in regard to a weight exemption obtained for the Bell 429 helicopter in 2011; Airbus contends that this is proof of the government’s preference for Bell’s product.
[25] As for the weight exemption, the evidence shows that in an e-mail dated June 17, 2010, a Transport Canada official reported to his supervisor that six months earlier, in December 2009, the CCG chief pilot, also an employee of Transport Canada, had asked the author of the e-mail about the possibility of granting a weight exemption at take-off for the class of helicopters to which the Bell 429 belonged. According to the e-mail, the chief pilot had indicated that this helicopter would be “a great aircraft for them.” The e-mail indicated “I told him the bad news about the GW limit for Part 27 helicopters but we started throwing the idea around up here in Flight Test and thought why not?” (GW refers to gross weight). The e-mail concludes by describing the regulatory difficulties:
From a technical standpoint the 429 is already or very nearly designed to 7500 lb. The big problem appears to be how to handle it from the regulatory standpoint. What we were thinking was a flight manual supplement for 7500 lb for Canadian-registered aircraft only (EMS operators would love another 500 lb of payload). How we deal with the 7000 lb max gross weight in 527.1 is another matter. Exemption, special condition, restricted type certificate…? Anyway, from our perspective in Flight Test, we support Bell’s proposal. There have been some rumblings about Agusta requesting a similar increase in Max GW for the new A109 Grand New from EASA but I can’t vouch for their authenticity. Just some food for thought.
[Exhibit 1 to the affidavit of Michael Laughlin, Chief Pilot of the CCG, dated November 1, 2013]
When cross-examined by Airbus, Mr. Laughlin had a very unclear recollection of a conversation that would have taken place four years earlier.
[26] The submissions include e-mails between Transport Canada officials, from which the applicant attempted to extract evidence of cronyism involving junior officials to prove that the Government of Canada had demonstrated favouritism toward Bell.
[27] The applicant also argued that both the American regulator (the Federal Aviation Administration [FAA]) and the European regulator (the European Aviation Safety Agency [EASA]) had refused the same exemption. However, 15 regulators in addition to Canada did accord it. Finally, the evidence shows that Airbus complained to a member of the party in power, who referred the matter to the Minister of Transport. The Minister did not ignore his colleague’s letter; the weight exemption was granted after senior officials in the Department of Transport had been made aware of the allegations. In addition, the file before the Court reveals that the Department of Transport had been alerted and that it was not just junior officials who were involved.
[28] The file also shows that Department of Transport officials were aware of the Airbus viewpoint and had been in contact with the FAA and EASA. In an e-mail from the FAA to Transport Canada dated July 7, 2011, the FAA noted its reservations, although Bell had not as yet made a request to US authorities. On August 8, 2011, an e-mail from the EASA to Transport Canada noted that the legal systems were different and that a decision to grant a weight exemption could only be reached after an elaborate process. The e-mail indicated a preference for harmonization among the three agencies (affidavit of G. Leprince, Exhibit P-13).
[29] The file also shows that not only was Bell given weight exemptions by 15 other regulators, but that Airbus, which was clearly aware of the application for exemption since the evidence establishes that it was in communication with Transport Canada, did not request an exemption for itself. Nor did it challenge in court the exemption given to Bell by Canadian authorities, despite having informed Transport Canada of its opposition (affidavit of G. Leprince, Exhibit P-13) and its opposition having been received by Transport Canada. The weight exemption was granted on December 28, 2011.
[30] This may explain why, at the hearing, Airbus focused more on the appearance of cronyism that it contended was suggested by some internal e-mails. We are not talking therefore of collusion, let alone fraud; Airbus does not go further than to suggest bias. But then, this bias would have occurred at the lower levels of the department. It therefore could not explain the departmental decision that was reached despite formal opposition from Airbus and the fact that the Minister himself had been made aware of the complaints. These complaints had even led to a letter from an assistant deputy minister of Transport Canada, on July 25, 2011, seeking to reassure Airbus executives that the application for a weight exemption would be handled in accordance with criteria established under the Aeronautics Act, RSC 1985, c A-2. This same letter stated that “[i]t should be noted that any other manufacturer of a comparable rotorcraft is eligible to apply for a similar exemption” (affidavit of G. Leprince, Exhibit P-13). As indicated above, Airbus did not take advantage of this invitation.
[31] The other evidence submitted by Airbus in support of its contentions is the affidavit of Corey Taylor, a helicopter pilot who undoubtedly has considerable experience in that field. He claimed to be familiar with the limits of most helicopters certified in Canada and to be knowledgeable about requests for proposals as he works for a company that provides helicopter transport services. As was mentioned during the hearing, Mr. Taylor does not have technical qualifications (his CV, which is Exhibit N in his affidavit, indicates that he completed high school and therefore has no particular aeronautics training), and his expertise, including that relative to requests for proposals, is limited to the transportation of goods and people, and not the procurement of helicopters. According to his CV, he has spent his career as a pilot and manager (base manager, project manager, operations manager, exploration manager, and at the time of the affidavit, general manager of Great Slave Helicopters Ltd.)
[32] Mr. Taylor sought to testify with regard to the technical requirements in the request for proposals that could be tailored to fit one aircraft in particular. That is in fact the conclusion that he reached. To do this, he consulted flight manuals for different helicopter models, among other documents.
[33] At paragraph 24 of his affidavit, he states as follows:
24. The requirements, that leave only the Bell 429 in compliance, include:
(a) 6.4 – Minimum operating air temperature (EC135 and AW109 disqualified);
(b) 6.7 – Ditching standards (only the Bell 429 makes any claim to meeting ditching standards from what I have been able to determine);
(c) 7.3.5.2.1 – 4 Axis Autopilot (EC135 eliminated);
(d) 7.3.5.5.1 – Cargo compartment size (EC135 and AW 109 disqualified); and
(e) 7.3.5.22.3 – Rear facing cargo doors (AW109 disqualified).
[34] The affiant adds the following at paragraph 131 of his affidavit:
131. As a result of the way that they have been drafted, the Technical Requirements have had the effect of excluding all aircraft other than the Bell 429 from the competition, as follows:
(a) The AW109 is eliminated because of non-compliance with items 6.4, 7.2.1 and 7.2.3, although it gains 20 bonus points for 7.2.2;
(b) The EC135 is eliminated because of non-compliance with items 7.1.2, 7.2.1 and 7.2.3, but gains 50 bonus points for item 6.4 and 60 bonus points for item 7.2.2;
(c) The MD902 is eliminated because of non-compliance with the Canadian IFR certification and item 7.1.4.
We understand the affiant to be referring to manufacturers’ helicopter models.
[35] The applicant seeks to draw two arguments from this evidence.
[36] First, the Minister of PWGSC acted unlawfully in that his action was arbitrary and unreasonable. It became clear during the hearing that when the applicant spoke in terms of “excess of jurisdiction”, the reference was to the exercise of discretion inherent in the granting of contracts. Judicial review must be based on the standard of reasonableness in this case. This contrasts with the standard of correctness, which applies to true questions of jurisdiction, as set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir], at paragraph 59 of the decision:
[59] Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose‑leaf), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para 5, per Bastarache J.). That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires. These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.
[37] It is clear to me that this is not at all what the applicant is contending. Its argument is rather that the favouritism demonstrated toward Bell is contrary to the law and government policies. A customized request for proposals cannot be reasonable. It cannot satisfy the law (section 40.1 of the Financial Administration Act, RSC 1985, c F-11) or the regulations (Government Contracts Regulations, SOR/87-402). Section 40.1 reads as follows:
Commitment
Engagement
40.1 The Government of Canada is committed to taking appropriate measures to promote fairness, openness and transparency in the bidding process for contracts with Her Majesty for the performance of work, the supply of goods or the rendering of services.
40.1 Le gouvernement fédéral s’engage à prendre les mesures indiquées pour favoriser l’équité, l’ouverture et la transparence du processus d’appel d’offres en vue de la passation avec Sa Majesté de marchés de fournitures, de marchés de services ou de marchés de travaux.
A customized request for proposals would also violate policies aimed at promoting healthy competition (Contracting Policy) and meeting operational needs in a way that provides the best value (Procurement Review Policy). The refusal to reconsider the technical requirements would render the exercise of discretion unreasonable.
[38] The other argument proceeds from an alleged breach of procedural fairness. In this regard, the standard is less demanding for an applicant because it is not that of reasonableness, but of correctness. Here, the applicant challenges the decision to not change the technical requirements on the grounds that it was not impartial. According to the applicant, the criterion that should be applied is the appearance of bias: would this give rise to a reasonable apprehension of bias on the part of a well-informed person? Fairness, transparency and openness are required in the awarding of public contracts.
[39] Here, the applicant basically repeats the elements of its first argument in contending that the Minister failed in his duty to be impartial by favouring Bell and turning a deaf ear to the requests of Airbus, and in not responding to repeated requests to provide additional information on CCG mission profiles. The applicant pointed to the weight exemption that was granted for the Bell helicopter as demonstrating favouritism, as well as the technical requirements that Bell satisfied.
[40] Moreover, the applicant argued that the Minister violated the commitments that were made, and repeated, to act in the fairest and most impartial manner. As proof of this, it points to the engagement agreement that participants were required to enter into before the process began. Indeed, the letter of interest (affidavit of G. Leprince, Exhibit P-2) states as follows: [translation] “One of the fundamental principles of the industry consultation is that it is conducted with the highest degree of fairness and equity among all parties. No person or organization shall receive, or be perceived to receive, any unusual or unfair advantage over the others.”
[41] A second component of the breach of procedural fairness would be related to the legitimate expectations of Airbus. Again, there is a certain relationship with the first argument as to the reasonableness of the discretion exercised in awarding the contract. On this front, the applicant submits that it was entitled to expect that the request for proposals would be [translation] “biddable”, implying that the Minister should have taken into account the comments and proposals Airbus had provided between August 2012 and April 2013, and that the Minister would act with the utmost impartiality and as fairly as possible. Airbus argues that it was disappointed in these legitimate expectations.
[42] The applicant therefore asks that the contract that was awarded be cancelled due to a defective process, and that the Minister establish a new process leading to a new request for proposals.
IV. The defence [43] The respondents vigorously attacked the allegations made in the application. The Attorney General, on behalf of the Minister of PWGSC, as well as the other organizations that participated in the procurement process for CCG helicopters, defended the process and sought to demonstrate that the technical requirements criticized by Airbus were based on operational requirements and were fair and reasonable. Bell, which won the contract, fully supported the Crown and contended that the affidavit of Mr. Taylor was not that of an expert, or at the very least, carried little weight. Bell argued that if for some reason the Court agreed with Airbus, the appropriate remedy would not be to cancel a contract on which the applicant did not bid.
A. The Crown [44] One of the respondents, the Crown, sought to demonstrate that the structure established for the procurement of helicopters ensured that the alleged bias was quite simply not possible; checks and balances were incorporated into the process to guard against the type of allegations being brought by Airbus in this case. The Crown met all of its commitments, and the process that was implemented was of the highest integrity.
[45] In addition, the Crown submitted evidence to show that the technical requirements were necessary for the wide variety of missions conducted by the CCG. Thus, the decisions being criticized by the applicant to not reconsider and modify certain technical requirements in the request for proposals were in fact reasonable and therefore unassailable.
[46] As to the allegations that the process that was followed violated procedural fairness, particularly because it interfered with the applicant’s legitimate expectations, the Crown strongly defends what it considers to be a model process. The process that was selected and used was fair: it sought to involve industry well before the request for proposals was issued on April 3, 2013. But it could not cause the Minister to refuse to exercise the discretion required of him by law. Draft technical requirements were provided to everyone, and meetings were organized with those who had chosen to participate in the process following a 19-page letter sent out in August 2012 to identify interested parties. Numerous changes were made to the technical requirements to promote competition and not accidentally eliminate potential bidders. These changes demonstrate the value and validity of the rigorous process that was put in place and followed. The government was looking for the best helicopter and did not wish to eliminate competition, which promotes the best quality at the best price. On the contrary. But the product had to meet the operational requirements.
[47] The Attorney General argues that in no way did the Minister of PWGSC have a closed mind regarding changes to the technical requirements. The applicant would not be any more successful if the test to be applied were the reasonable apprehension of bias since the evidence does not show any such bias, in appearance or reality. The government promised a process and followed it. This is what was done.
[48] The applicant’s contentions are not supported by any evidence, much less solid evidence. In fact, given the high number of participants on the government side, the governance structure and the presence of external parties to ensure a fair process, it would have taken serious fraud on the part of all involved for there to be favouritism toward Bell. No such evidence was tendered. The applicant was careful not to cross that line.
[49] The governance structure put in place shortly after the March 2012 budget remained in place at least until the request for proposals was issued on April 3, 2013. The closing date for tenders was June 4, 2013.
[50] At the heart of the governance was PWGSC, which is legally responsible for mana