Government Operations Committee on May 29th, 2008

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

My fourth and last question might get towards policy, and if you're not able to answer this, I understand. Once you have made a recommendation.... In particular, I'm not talking about the private sector here, because obviously they will have a different set of responsibilities. We, as legislators, want to ensure that the activities we have before.... If you pass judgment--this is following up on Madame Bourgeois' position a little bit--and you've made recommendations to a department and/or a crown corporation and/or an agency, have you found that your decisions have had a good level of acceptance? I'm not asking for a judgmental response here. Has there been any resistance or appeal process based on your decisions?

[André F. Scott]

In terms of appeals, very few have been appealed. If I recall, we have some statistics on that, and it was around six cases in the past five years. Very few are appealed.

In terms of implementation, that I know of, all our decisions have been implemented.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

That's actually reassuring. That basically tells us that you're doing your job.

Thank you.

Those are all the questions I have right now, Madam Chair.

[The Chair, Liberal, Diane Marleau]

Thank you.

Mr. Holland, did you want to continue?

[Mark Holland, Liberal, Ajax—Pickering, ON]

No, that's fine.

[The Chair, Liberal, Diane Marleau]

We will now come back to you, Ms. Bourgeois.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Since my colleague has a brief question, I will give her the floor, and then come back with my questions.

[The Chair, Liberal, Diane Marleau]

Ms. Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Thank you for appearing before us today.

My questions have to do with the way in which the tribunal works. When an individual files a complaint... I can see that the form is quite easy to complete, and that people have to do that within 10 days of the awarding or the signing of the contract.

[André F. Scott]

People must do it within 10 days of the contract being awarded, or as soon as something happens in the bid process that would cause them to file a complaint. The complaints can be made even before the contract is awarded or closed.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I have worked in Public Works and in a number of departments, on issues involving contracts that are subject to NAFTA.

The process does include an evaluation stage for bidders. Individuals who go through all the steps may not have realized that their rights were violated. The process proceeds, and they trust in the system. It is transparent, and there are meetings held. When the bidder is chosen, one of the parties competing may say that they do not understand the decision. In that case, they may file a complaint with the tribunal.

[André F. Scott]

Often, the individual will go back to the department running the bidding process to get an explanation. That is called a debriefing, and departments very often grant that.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I see.

[André F. Scott]

Normally, at these debriefings, the department explains the procedure that was used and answers certain questions. One does not exclude the other.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

You know as well as I do that bidders are not given some documents. These documents are quite important in choosing the winning bid. As a result, people have to go through access to information to get them. If the value of the contract is quite high—$200 million or $250 million, for example—there may be a good deal of documentation, and it may be very costly. In addition, it may take time to get them.

Is there a point in the process where people can ask for an extension in the deadlines in order to provide documents? There's a reference to “attachments” on the form. That is where the application usually becomes thicker.

[André F. Scott]

Your question contains a number of sub-questions. Individuals may file a complaint as soon as they have a reason for doing so. They may also file new complaints later on or change their original complaint if they discover new reasons for doing so. The 10-day time limit begins as soon as there is an initial reason for filing a complaint.

However, once the first complaint is filed and has been rejected, people can come back if they discover...

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

At what point does the 10-day period begin? Let us assume that I am a bidder, that the selection process, the boards that review the applications, happened six months ago, and that when I heard the decision, I realized that I had grounds for complaint at that stage.

[André F. Scott]

From the moment we learn there is ground for a complaint, the 10-day time limit begins. That's why I always make the distinction. There may be grounds for a complaint before the bidding process has been closed and the assessment done. You might want more information on the content of the material on which the bidding process is based or on the interpretation of certain provisions. If you are not given an answer or if you are given an answer which might cause your bid to become distorted, you might have grounds for making a complaint. You would then have 10 days to go before the tribunal even though the bidding process is not closed yet.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Fine.

After the 10 days, you can apply to the Federal Court.

[André F. Scott]

No. We are the first level. If you are not within the deadline, there is unfortunately no other recourse for you.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I could not make a complaint to the tribunal anymore, but I could take legal action against the department in Federal Court.

[André F. Scott]

In my opinion, that would depend on the grounds. There is no review. At the Federal Court...

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

The interested parties are often very few when there is a call for tenders. The work to be carried out is so specific that only a few service providers can qualify. Even if they do not qualify, it is possible that three months later, people get together and learn that the bidding process was flawed.

If that happens, what kind of recourse is available?

[André F. Scott]

If three months later a bidder realizes there is grounds to file a complaint, he has 10 days to do so at that point.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Thank you.

I just wanted to know when the 10-day time limit begins.