INTRODUCTION

I. Overview

1. In any procurement process there are necessarily winners and losers—applicants who are successful and are awarded contracts and those who are not. In virtually every such procurement process, applications have to be evaluated, decisions made, and contracts eventually awarded based on the merits of the applications and the needs and goals of the government. In managing and implementing procurement processes, decision-makers are often forced to make adjustments at key junctures in order to best satisfy the policy objectives of the government and ensure that the process unfolds in a fair, transparent and efficient manner. Such adjustments often result in winners and losers as well, as changes operate to the benefit of some and the detriment of others.

2. Those who are unsuccessful usually disagree with the outcome. They often feel aggrieved and allege that their applications were better than those of their competitors. The fact that they were unsuccessful is proof, in their eyes, of a conspiracy, wrong-doing and injustice. In reality, it is nothing more than a commercial consequence of the legitimate policy choices which must be made as any such process unfolds.

3. At the heart of this arbitration brought against Canada by Mesa Power Group, LLC (the “Claimant” or “Mesa”) are these sort of typical complaints. The Claimant is disappointed that it did not receive a contract as part of Ontario’s Feed-in Tariff Program (“FIT Program”) – particularly because it had hoped to use such a contract to mitigate its losses from an ill-advised decision to sign a multi-billion dollar agreement to purchase wind turbines for a Texas project that failed prior to the FIT Program’s launch. It alleges that its applications were better than those of its competitors who did receive contracts. It then makes broad and unsubstantiated accusations of discriminatory treatment and egregious conduct.