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CROWN - Contracts with Crown - Formation - Breach of contract

Thursday, December 22, 2016 @ 7:00 PM  

Appeal by TPG Technology Consulting from the dismissal of its action against the Crown. The Crown awarded CGI Group a multi-year contract for the provision of engineering and technical support services to federal government users. TPG had been the incumbent service provider under the predecessor contract. TPG sued, alleging the Crown failed to properly follow the procurement process. TPG sought damages for breach of contract plus interest and costs. The Federal Court determined that the action was more properly within the jurisdiction of the Canadian International Trade Tribunal. Despite declining jurisdiction, the Federal Court considered the merits of the claim and found that TPG failed to establish a case for damages. TPG established a breach of the duty of fairness arising from adjustment and application of two of the 217 evaluation criteria, but found no other unfairness in the conduct of the overall bid process. The unfairness established by TPG did not give rise to any compensable damages, as the impugned criteria scores were statistically inconsequential with respect to the outcome. TPG failed to establish that CGI’s successful bid was non-complaint. TPG appealed.

HELD: Appeal dismissed. The Federal Court did not err in finding concurrent jurisdiction with the Canadian International Trade Tribunal over the issues raised by TPG’s action. It was unnecessary to determine the circumstances in which the Court should decline to exercise its jurisdiction. In proceeding to determine the merits, the Court effectively accepted jurisdiction. For TPG to establish a compensable loss, it was required to demonstrate it would have won the bid but for the Crown’s breach. The absence of evidence proving unfair evaluation of all but two of the criteria supported the Court’s conclusion that no such loss was proven. The Court did not err in evaluating the impact of the breach on those criteria. No error arose from the conclusion that CGI’s bid was complaint.