IBM Canada Ltd. v. Hewlett-Packard ( Canada ) Ltd., 2002 FCA 284, [2003] 1 F.C. D-20


INTERNAL TRADE

IBM Canada Ltd. v. Hewlett-Packard (Canada) Ltd.

A-173-02, A-178-02

2002 FCA 284, Décary J.A.

4/7/02

14 pp.

Judicial review of determination by Canadian International Trade Tribunal (CITT) government procurement unclear, breached requirements of Agreement on Internal Trade, Art. 506(6), North American Free Trade Agreement, Art. 1013-- CITT first rejecting submission complaint not timely--Public Works issued Request For Proposal (RFP) for planning, acquisition of computer equipment for Human Resources Development Canada on April 2, 2001--Hewlett-Packard incumbent contractor--Following issuance of RFP, some 135 questions posed by bidders answered by Public Works in Solicitation Amendments published from time to time--Main argument between parties revolved around how term "partitioning" to be interpreted--Relevant questions, answers found in Amendments dated May 7, May 18 and June 5, 2001 --Both Hewlett-Packard, IBM having compliant bids, but IBM successful bidder--Hewlett-Packard delivering two formal objections on September 17 and 21--Canadian International Trade Tribunal Procurement Inquiry Regulations, s. 6(1) requiring potential suppliers to file complaints no later than 10 working days after day on which basis of complaint becomes known or reasonably should have become known to potential supplier--Applications allowed-- (1) Within CITT's jurisdiction to decide whether complaint time-barred--No legal issue as to interpretation of s. 6(1)-- Determination of starting point herein pure question of fact--CITT's knowledge of procurement process placing it in best position to decide when complainant aware or reasonably should have become aware of basis of complaint--Standard of review patent unreasonableness--(2) Complaints grounded on interpretation of terms of RFP should be made within 10 days from moment alleged ambiguity or lack of clarity became or normally ought to have become apparent--But where latent ambiguity, i.e. ambiguity only coming to one's attention at later stage in process, CITT holding time for filing complaints not beginning to run until something triggering potential supplier's awareness of existence of latent ambiguity --CITT's reasons as to timeliness not addressing issue of whether answer to last relevant question should have attracted Hewlett-Packard's attention and incited it to take immediate action--In absence of reasoned explanation, CITT's claim for deference weakened--If Hewlett-Packard of opinion that clear answer (both single and multiple operating system environments acceptable) contradicted procurement requirements, should have filed complaint immediately instead of waiting until procurement process over-- Regulations seeking to discourage precisely this type of attitude--Impossible to conclude latent ambiguity--Patently beyond reason for CITT to have found Hewlett-Packard only aware of ground of complaint on September 12, 2001 (date successful bidder identified)--Any doubt as to effect of answer should have been raised when Amendment published --Patently unreasonable for CITT not to dismiss complaints as time-barred--Agreement on Internal Trade, Canada Gazette, Part I, Vol. 129, No. 17 (29 April 1995), Art. 506(6) --North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, December 17, 1992, [1994] Can. T.S. No. 2, Art. 1013--Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/93-602 (as am. by SOR/95-300, s. 2), s. 6(1).

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