Decision Date: April 4, 2017
Panel: Alan Andison
Keywords: Wildlife Act – s. 53(1)(g); Angling and Scientific Collection Regulation – s. 11; angling guide; classified water; angler day quota; bid and tender
Kim Sedrovic and Gordon Silverthorne filed separate appeals against the decisions of the Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Programs, Kootenay-Boundary Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), with respect to their applications for new guided angler day quota on the Wigwam River. His decisions were made after a tender process, whereby the Ministry issued a tender package inviting angling guides to apply for the quota by submitting monetary bids as well as written proposals addressing the criteria specified in the tender package. The bids and proposals were then reviewed and scored by Ministry staff. Based on the scoring of the bids and tenders, the Regional Manager decided not to award any of portion of the new quota to Mr. Sedrovic or Mr. Silverthorne. The Regional Manager decided to award the new quota to two other angling guides.
Mr. Sedrovic and Mr. Silverthorne appealed, and they each requested a reconsideration of their bid and proposal scores. They asserted that they intended their monetary bids to be for each “guided angler day” they were bidding on within a block (“Lot”) of days, rather than for an entire Lot, yet they were scored as if the bids were for an entire Lot. They submitted that the bid process was unclear, and if their bids and proposals had been properly considered, they would have been awarded at least some portion of the quota. They asked that the Board to reverse or vary the Regional Manager’s decision and allocate some, or all, of the quota to each of them, or send the matter back to the Regional Manager with directions for reconsideration.
The Board found that the tender process for allocating the quota was governed by the legal principles that guide the law of tenders. Therefore, the tender package issued by the Ministry at the start of the tender process established contractual terms between the Ministry and the guides who responded to the request for tenders. In addition, the Ministry had an obligation to treat all bidders fairly and equally throughout the tender process.
When scoring the bids and proposals, the Regional Manager decided to give the bids slightly less weight relative to the proposals than was suggested in a Ministry policy. The Board found that the Regional Manager had the authority to do so, and the tender package issued by the Ministry clearly stated how much weight would be given to the bids and the proposals. In any event, the Board held that giving the Appellants’ bids greater weight, as suggested in the Ministry policy, would not have resulted in them receiving any of the quota, because it would have actually reduced their total scores compared to those of the successful applicants.
Regarding the scoring of the proposals, the Board found that the instructions in the tender package were clear, and the applicants were informed of the criteria that would be used to score their proposals. It was unnecessary for the tender package to disclose the particular methodology that the Ministry used for allocating points in connection with the criteria. The criteria and scoring methodology were applied consistently to all applicants.
The Board also found that the tender package clearly indicated that the bids were to be the monetary amount for each Lot (i.e. block of days), and not for each individual day. The Appellants made an error by submitting bid amounts for individual days, which meant that their bids were much lower than those of the successful applicants. This was not due to any error by the Regional Manager or the Ministry, and it would be unfair to the successful applicants to give the Appellants a second chance to correct, on appeal, what they should have done properly in the first instance.
In conclusion, the Board found that the tender process was fair and consistent, the tender package was clear and unambiguous, and all applicants were treated equally. There was no basis for varying or reversing the Regional Manager’s decisions.
Accordingly, the appeals were dismissed.