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Appeal to the NNI Contracting Appeals Board by Adlair Aviation (1983) Ltd. of RFP# 2011-21 and the subsequent award of the contract to Agsaaniq Airways Ltd. Members of Board Sitting on the 11th of October, 2011 Chairperson: Barry Cotnthwaite Members: Chris Cote
Adlair Aviation (1983) Ltd. Jack Williams, counsel for Adlair Aviation (1983) Ltd. Paul Laserich, Adlair Aviation (1983) Ltd.
Department of Community and Government Services, Government of Nunavut (Contracting Authority) John MacLain, Department of Justice, GN, counsel for the Department of Community and Government Services, GN Mark McCullough, Department of Community and Government Services, GN
Aqsaqniq Airways Ltd. Paul Smith, counsel for Aqsaqniq Airways Ltd. Chuck Parker, Aqsaqniq Airways Ltd.
Jurisdiction: No administrative board or tribunal has inherent jurisdiction. They can only deal with matters within the jurisdiction given them by their mandating legislation. Page 1 of 5
Therefore, before arriVing at any decision a board or tribunal must consider its jurisdiction to ensure that it has the necessary authority to deal with the issues raised before it. Prior to its deliberations the NNI Contracting Appeals Board considered the question of it's jurisdiction to hear this appeal and the scope of the inquiry the NNI Contracting Appeals Board could undertake in fulfilling its mandate. The Board's jurisdiction is given to it by s. 18.13 (a) of Nunavummi Nangmlniqaqtunik lkajuutl (NNI Policy) which reads as follows:
"18.13 (a) An appeal from an award by an unsuccessful Bidder or Proponent to
the Contracting Appeals Board may be made on the ground that the Contracting Authority in making the award erred in the application of NNI Policy." It can be seen from the above quoted section that the NNI Contracting Appeals Board jurisdiction is limited to only dealing with questions concerning the application of NNI Policy by the Contracting Authority when it awarded the contract. The Contracting Appeals Board does not have the authority to consider any aspects of the evaluation of the RFP that do not relate to the application of the NNI Policy. Nor can the Contracting Appeals Board put itself in the position of the Contracting Authority, hear new evidence and substitute its decision for the Contracting Authority's decision. For these reasons the NNI Contracting Appeals Board, in its deliberations limited itself to only that documentation that was before the Contracti ng Authority on the date that the RFP closed. Facts: The following facts were found by the NNI Contracting Appeals Board and were used in their deliberations and in coming to the decision on this appeal. With regard to Request for Proposal! # 2011 - 21, the following timeline was determined: RFP Issued: RFP Closed: Letter to Adlair Aviation (1983) Ltd. Regret Letter: Adlair Aviation (1983) Ltd. Challenge Letter:
18th Februa ry, 2011 8th April, 2011 at 4: 00 PM 15th August, 2011 16th August, 2011
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Contracting Authority Response Letter: Adlair Aviation (1983) Ltd. Appea I Letter: Board Hearings:
19th August, 2011 26th August, 2011 12th September, 2011 11th October, 2011
In reviewing this tlrnellne the NNI Contracting Appeals Board found that all the relevant parties followed the NNI Policy with regard to the various time deadlines that had to be met in accordance with the NNI Policy, in any appeal' to this Board. Therefore the Board found that were no defects in the appeal. with regard to the time limitations contained in the NNI Policy. Decision: Section 18.14 of the NNI Policy states: "Where the appeal filed with the Board does not fall within the jurisdiction of the Board the appeal may be dismissed by order of the Board without holding a hearing." The Board reviewed the Appeal Letter from Adlair Aviation (1983) Ltd. dated the 26th of August, 2011 for the reasons given for Adlair Aviation (1983) Ltd. appeal. The Board found that Adlair Aviation (1983) Ltd. gave in the opening paragraph of that letter sufficient indication that it was appealing the manner in which N'NI adjustments were not given to itself and were given to Aqsaqniq Airways Ltd. to fall within the jurisdiction of the NNI Appeals Board. The Board, therefore, fe.lt that the appeal should not be dismissed without a hearing and a hearing was held. At the sitting of the Boa rd held on the 11th day of October, 2011, the Board hea rd submissions from Adlalr Aviation (1983) Ltd., Aqsaqniq Airways Ltd. and the Contracting Authority. As well, the Board allowed Mr. Paul Laserich of Adlair Aviation (1983) to present to the Board and the other parties a binder which contained various documents. The Board also allowed Mr. Laserich to review these documents with the Board, as he felt they might help the Board in its deli berations. The Board has found with regard to this binder and .Mr. Laserich's review that anything relating to the time period after the closing of the RFP on the 8th of April, 2011 could not be considered by the Board in its deliberations as being outside the jurisdiction of the Board. The Board could not accept new evidence nor could Page 3 of 5
it consider facts not before the Contracting Authority at the time of the making of its decision to award the contract. The NNI Contracting Appeals Board could only deal with evidence falling with the time period before the 8th of April, 2011. The Board was of the opinion that to do otherwise was to exceed its jurisdiction. Mr. Williams, counsel for Adlair Aviation (1983) Ltd., in his submission argued that the award of the contract should be overturned for three reasons. First, he argued that the Contracting Authority improperly applied the bid adjustments. In dealing with this argument and the others arguments presented by 'all parties the Appeals Board was very mindful of the consequences of any decision it made to the various parties and for that reason spent two full days reviewing and deliberating on the admissible information before it, prior to arriving at its decision. And, this first point raised by Mr. Williams was the question the that the Board devoted the majority of its time to considering. The Board found after a thorough review of all the documents involved in the awarding of this contract, that on the basis of the information contained in the proposals of the proponents at the time of the closing of the RFP,that the Contracting Authority properly awarded the NNI Bid Adjustments and that there is no merit in that argument. Mr Williams also argued on behalf of Adlair Aviatlon (1983) Ltd. that the Contracting Authority while it asked for clarification on certain points, ie the serial number of an aircraft, it did not request missing information from Adlair Aviation (1983) Ltd. in relation to its proposal. The instruction in the RFPdocuments are quite clear that certain information must be provided by the proponents to receive any of the NNI bid adjustments and if that information is not provided the bid adjustments will not be provided. It is the Board's finding that it is the responsibility of each proponent to provide the information that they wish the Contracting Authority to consider in the awarding of the contract and not the responsibi.lityof the Contracting Authority to request missing information. Any suggestion that there was an onus on the part of the Contracting Authority to perfect a proponent's application by requesting mlsstnq information would put the Contracting Authority in the position of assisting a proponent in the competition and acting as that proponent's agent. To accept this second argument made on behalf of Adlair Aviation (1983) Ltd. would give rise to a competition process that would be manifestly unfair to the other proponents and for that reason could not be accepted. Page 4 of 5
2011-10-29 12:03 arcs
The Board felt that the third argument advanced on behalf of Adlair Aviation ~ (1983) Ltd, that Adlalr Aviation (1983) Ltd. met the minimum requirements tor the awarding of the contract, could not be accepted by the Board. The Board! found that this argument was outside the Jurisdiction of the Appeal Board. It ~id not go to any question of the Contracting Authority errIng In the application at NNI policy in the awarding of the contract. :1
For the above reasons it is the decision of the NNI Contracting Appeals Boar~' that the appeal of Adlai r Aviation (1983) ltd. of the awardi n9 ofa contract to Aqs' qniq Airways Ltd. pursuant to RFP # 2011-21 is dIsmissed. ~
Note: While t4r. Cote was present at the hearing on the i r'" of October, 2014 unfortunately he was unable to partIcipate in the review and deliberations , conducted by the Appeats Board and for that reason has had no input into th~5 decision. Wlthout Mr. Cote there was still the required quorum for the Appeali} Board and only those members who were present through all aspects of this! appeal participated in the decision on thiS appeal.
I; :1 :1
Dated at Iqaluit, thiS 2.cit~ay of October,
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