3202488 CANADA INC. O/A KINETIC SOLUTIONS

3202488 CANADA INC. O/A KINETIC SOLUTIONS
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2014-025

Determination issued
Tuesday, November 25, 2014

Reasons issued
Friday, December 19, 2014

Corrigendum issued
January 29, 2015

TABLE OF CONTENTS

 

IN THE MATTER OF a complaint filed by 3202488 Canada Inc. o/a Kinetic Solutions pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.);

AND FURTHER TO a decision to conduct an inquiry into the complaint pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN

3202488 CANADA INC. O/A KINETIC SOLUTIONS Complainant

AND

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES Government Institution

DETERMINATION

Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is valid.

Pursuant to section 30.15 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that 3202488 Canada Inc. o/a Kinetic Solutions should be compensated for reasonable lost profits. The Canadian International Trade Tribunal will request further submissions from the parties on the quantum of that remedy.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act and the Procurement Costs Guideline, the Canadian International Trade awards 3202488 Canada Inc. o/a Kinetic Solutions its reasonable bid preparation costs, with the quantum of said costs also to be determined subsequent to the receipt of further submissions.

Furthermore, the Canadian International Trade Tribunal awards 3202488 Canada Inc. o/a Kinetic Solutions its reasonable costs incurred in preparing the complaint. The Canadian International Trade Tribunal’s preliminary determination of the amount for complaint costs is $1,150 (Procurement Costs Guideline – Level 1). Parties are invited to make submissions on the cost award, should they disagree with the preliminary determination.

The Canadian International Trade Tribunal retains jurisdiction to establish the quanta of compensation and costs set out above.

Jason W. Downey
Jason W. Downey
Presiding Member

The statement of reasons will be issued at a later date.

Tribunal Member: Jason W. Downey, Presiding Member

Counsel for the Tribunal: Jidé Afolabi
Carrie Vanderveen

Acting Case Assistance Officer: Ekaterina Pavlova

Acting Registrar Support Officer: Sara Pelletier

Complainant: 3202488 Canada Inc. o/a Kinetic Solutions

Government Institution: Department of Public Works and Government Services

Counsel for the Government Institution: Roy Chamoun
Susan D. Clarke
Ian McLeod

Intervener: Treadmill Doctor Inc. o/a TDI Fitness Consultants

Please address all communications to:

The Registrar
Canadian International Trade Tribunal
333 Laurier Avenue West
15th Floor
Ottawa, Ontario  K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
E-mail: citt-tcce@tribunal.gc.ca

STATEMENT OF REASONS

  1. On August 26, 2014, 3202488 Canada Inc. o/a Kinetic Solutions (Kinetic) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11(1) of the Canadian International Trade Tribunal Act.[1] The complaint concerned a Request for Proposal (RFP) (Solicitation No. W010X-14A002) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the delivery and installation of treadmills in naval facilities and on naval ships. Kinetic filed additional information with the Tribunal on August 27, 2014.
  2. Kinetic’s complaint was based on the assertion that, with regard to points awarded for two specifications making up the technical score, PWGSC erred in its evaluation of the proposal submitted by the contract awardee, Treadmill Doctor Inc. o/a TDI Fitness Consultants (TDI). Those requirements pertained to the size of the running deck of the treadmill and to the user weight rating of the treadmill. Kinetic further asserted that, as a result of those errors, the resulting contract was incorrectly awarded.
  3. As a remedy, Kinetic requested compensation for lost profits, as well as a reimbursement of its bid preparation costs and its complaint costs.

BACKGROUND TO THE COMPLAINT

  1. On May 24, 2013, PWGSC posted a Request for Information (RFI) on the Government Electronic Tendering Service system. The RFI requested information from industry with regard to defining the technical specifications of a proposed solicitation for fitness equipment.[2]
  2. The RFI closed on June 21, 2013, with responses received from Kinetic, TDI and three other potential suppliers. Following the receipt of those submissions, PWGSC and DND began work on the technical specifications for the proposed solicitation.[3]
  3. On December 23, 2013, PWGSC issued the RFP for the solicitation, with a bid closing date of February 4, 2014. The technical specifications were set out in Annex A of the RFP, with the two specifications at issue in this complaint set out as follows:

ANNEX A

Statement of Requirement

. . . 

The following base levels are minimum mandatory requirements; additional points are awarded for exceeding the minimum mandatory as noted. The bidder must identify where in the technical literature the requirement is met. If, in the event, an item is not detailed in the technical literature, the bidder is required to provide manufacturer certification that the requirement is met with the bid.

1. TREADMILLS

. . . 

Levels Points

. . . 

Deck: 20” X 60” 0

 Greater   5

. . . 

Weight: *Must be identified as  350  0
capable of accommodating 400  5
user with a minimum weight 450  10
(lbs) of level while running: 500  15

. . . 

*Certification letter from manufacturer must also identify maximum user weight capacity while running.

  1. Further, Part 4 of the RFP stated as follows with regard to the basis of selection and contract award:

3. The selection will be based on the highest responsive combined rating of technical merit and price. The ratio will be 70% for the technical merit and 30% for the price.

4. To establish the technical merit score, the overall technical score for each responsive bid will be determined as follows: total number of points obtained/maximum number of points available multiplied by the ratio of 70%.

5. To establish the pricing score, each responsive bid will be prorated against the lowest evaluated price and the ratio of 30%.

6. For each responsive bid, the technical merit score and the pricing score will be added to determine its combined rating.

  1. Subsequent to the close of the solicitation and the evaluation of the bids, the contract, with a value of $388,125.00, was awarded to TDI on February 14, 2014.[4]
  2. On February 26, 2014, Kinetic wrote to PWGSC, noting the award of the contract to TDI and requesting “a complete and detailed explanation”. PWGSC replied on the same day and provided Kinetic’s combined score of 89.19315, as well as TDI’s combined score of 90.28679.
  3. On February 27, 2014, Kinetic once again wrote to PWGSC. In that correspondence, Kinetic relied on its industry and brand knowledge in inferring that TDI’s bid must have been premised on either the Precor® 833 or Precor® 835 treadmill. In comparison, Kinetic’s bid had been premised on the True CS900 treadmill.
  4. Kinetic asserted that, based on the technical requirements of the solicitation, Precor® treadmills cannot acquire ratings higher than those of True CS900 treadmills. In support of its assertion, Kinetic noted that Precor® treadmills have a running surface of 20” X 60” (the minimum in mandatory requirements – granting the TDI bid no more than 0 points) and that, according to the solicitation, treadmill decks must be over that size in order to acquire the 5 points available with regard to running surfaces.[5]
  5. In its response on the same day, PWGSC indicated that it had disclosed everything that it could with regard to TDI’s bid, citing limitations within the disclosure of information provisions of the Supply Manual.[6] PWGSC asserted that it could not provide any information regarding the treadmill brand that TDI utilized in its bid, or any further particulars as to how TDI’s bid was awarded points. In addition, the PWGSC officer with whom Kinetic had been corresponding directed Kinetic to his team leader with regard to any further discussion of the issues raised.
  6. On the same day, Kinetic wrote to the team leader, indicating that it had deduced numbers and undertaken a presumed scoring of TDI’s bid, in comparison to its own bid. Kinetic stressed that, under this scenario, it was mathematically impossible for TDI’s bid to score higher than its own bid. Kinetic explained that such a result could only be obtained if TDI’s bid was awarded 70/70 for technical requirements, which was not plausible in light of the treadmill brand that TDI was in a position to deliver.[7]
  7. In his response on March 3, 2014, the team leader reiterated that PWGSC had disclosed everything that it could with regard to TDI’s bid and directed Kinetic to PWGSC’s Access to Information and Privacy office regarding any further requests for additional information. The team leader also directed Kinetic to the Tribunal.[8]
  8. On March 5, 2014, Kinetic informed PWGSC that it had initiated an Access to Information request with regard to the solicitation for treadmills, with the objective of acquiring information pertaining to TDI’s bid, which would assist it in substantiating both its calculations and assertions.[9]
  9. 16. That request was filed on March 3, 2015, and ultimately resulted in the disclosure of information which had mostly already been available to Kinetic; the additional information sought by Kinetic was specifically excluded from the required documents pursuant to paragraphs 20(1)(b)> and (c) of the Access to Information Act;[10] the information provided was relatively cryptic. The letter informing Kinetic of the disclosure and exclusions was date stamped June 27, 2014, but possessed a fax transmission date of August 13, 2014.
  10. On August 26, 2014, Kinetic filed its complaint with the Tribunal, with additional information filed on August 27, 2014. With regard to the above facts and resultant dates, the Tribunal deems the complaint to be timely.
  11. In its complaint, Kinetic indicated as follows with regard to the information that it had been seeking from PWGSC:

We ended up sending our sales rep in Atlantic Canada . . . into one of the facilities to physically measure and take pictures of the treadmill including running surface/deck . . . and provide us with serial numbers which we ran with the manufacturer Precor to confirm the model supplied by TDI. . . . While doing our research we also became aware that the Precor TRM 833 does not even meet the weight standard required. It is printed in the owner’s manual to not exceed 350 lbs. while running. . . . Not meeting this standard means the Precor TRM 833 should have only received 50 out of 70 points . . . .[11]

[Emphasis added]

  1. On September 3, 2014, the Tribunal accepted Kinetic’s complaint for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.[12]
  2. On September 29, 2014, PWGSC filed its Government Institution Report (GIR). The Tribunal granted TDI intervener status, and it filed its comments on October 6, 2014. On October 14, 2014, Kinetic filed its comments on the GIR, as well as its response to TDI’s comments.
  3. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that an oral hearing was not required and disposed of the complaint on the basis of the written information on the record.

POSITIONS OF PARTIES

PWGSC

  1. By specifying a length of 20” X 60”, the RFP utilized imperial units of measurement in setting out the running deck size requirement for the solicitation. In the GIR, PWGSC indicates that TDI utilized imperial units, stated as exactly 20” X 60”, as well as metric units of measurement, that is, centimeters, in specifying the running deck size of the treadmill proposed in its bid.[13]
  2. According to PWGSC, TDI indicated that a conversion of its metric units to imperial units resulted in dimensions which were incrementally (within a fraction of a single inch) greater than . Considering that the converted measurements actually “exceed” the standard, the evaluators opted to grant TDI’s bid 5 points on the basis of that indication.[14]
  3. As concerns the user running weight requirement, PWGSC stated the following in the GIR:

In establishing this requirement, the DND Technical Authority, working with PWGSC, understood the requirement as stating that to be compliant with the requirement, any proposed machine would have to accommodate the force created by a 350 lb. person while running. A machine rated at such a 350 lb level, while compliant, would be awarded zero marks. Machines with higher ratings would be awarded higher scores up to a machine rated at 500 lbs, which would be awarded l5 points. In setting this requirement, the Technical Authority was mindful that the proposed treadmills were intended for use by the military and for firefighting training where individuals would be equipped with large amounts of equipment. In addition, the Technical Authority was also aware from the RFI process and its own knowledge that the user weight ratings were also considered in the industry to be a measure of durability. Accordingly, where treadmills would be subject to high levels of use and/or used in stressful environments, preference should be given to machines with high user weight ratings, i.e., 500 lbs. In the case of this procurement, the treadmills were intended for use in three Canadian Forces bases exercise facilities where the usage level would be high and on board RCN ships with the additional stresses of operation in various sea states. As a result, while a machine rated at 350 lbs would be acceptable under the requirement, l5 additional points would be awarded to machines rated at 500 lbs or more.[15]

[Emphasis added]

  1. PWGSC then proceeded to indicate that TDI effectively provided conflicting information with regard to the user running weight rating of the treadmill proposed in its bid. While TDI prominently indicated a user running weight rating which would qualify for the full complement of points available in the solicitation, TDI also provided fine print information (calculation of running weight) which effectively lowered the same rating.[16] The wording of the fine print information is included as a confidential addendum to this determination.
  2. PWGSC granted TDI’s bid 15 points on the basis of the prominent indication, only confirming much later that the statement provided by TDI was in fact in contradiction with another part of its proposal.[17]
  3. In the GIR, PWGSC admits to the error by indicating that “. . . the treadmills are in fact compliant with the requirements of the solicitation but, if the matter had been fully understood at the time of evaluation, would not have been entitled to the 15 points awarded.”[18]
  4. With regard to the evaluation of both the running deck size requirement and the user running weight requirement, PWGSC asserts that its evaluation team still reached a “reasonable conclusion” in the circumstances. In support of its assertion, PWGSC argued that it is well-established jurisprudence that evaluators must limit their evaluation of a bid to the actual contents of the bid submission rather than seeking extraneous information,[19] that evaluators are entitled to rely on the information submitted by bidders in proposals[20] and that the Tribunal has repeatedly stated that it will only interfere with an evaluation that is unreasonable.[21]

Kinetic

  1. As concerns the running deck size requirement, Kinetic asserted that the solicitation requirement was in imperial units of measurement and that, as such, all bids should have used, and should have been assessed on, solely those units of measurement. Kinetic further asserted that “[t]o err on the side of caution, one must assume the imperial measurement is ‘exact’ and the metric size is rounded from that.”[22]
  2. With regard to the user running weight requirement, Kinetic’s position[23] has, to all intents, been conceded by PWGSC—the treadmill model proposed by TDI has a user running weight rating of 350 lbs. and, as such, it is compliant with the requirements of the solicitation, but is not entitled to the 15 points awarded.
  3. In rebutting PWGSC’s argument that it acted reasonably, Kinetic referred to Part 5 of the RFP, which provides as follows:

The certifications provided by bidders to Canada are subject to verification by Canada at all times. Canada will declare a bid non-responsive, or will declare a contractor in default, if any certification made by the Bidder is found to be untrue whether during the bid evaluation period or during the contract period.[24]

  1. Thus, Kinetic essentially asserted that PWGSC should have applied itself with greater care by acting in accordance with the rules of the solicitation and verifying the information provided by bidders, if needed. Along this line of reasoning, the Tribunal notes that Part 5 of the RFP additionally states:

The Contracting Authority will have the right to ask for additional information to verify the Bidder’s certifications. Failure to comply with this request will also render the bid non-responsive or will constitute a default under the Contract.[25]

TRIBUNAL ANALYSIS

  1. The Tribunal has stated, in past cases, that it will not disturb a reasonable evaluation undertaken in a solicitation, with a reasonable evaluation being one that is supported by a tenable explanation, even if that explanation is not one that the Tribunal itself finds compelling.[26]
  2. Further, the Tribunal has often stated that an unreasonable evaluation is one in which the evaluators have not applied themselves, have ignored vital information, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have failed to conduct the evaluation in a procedurally fair manner.[27]
  3. In the complaint at hand, once seized with what appeared to be conflicting information in a bidder’s proposal, specifically the provision of two running deck sizes by TDI, it was incumbent upon PWGSC to act in keeping with established jurisprudence and rightly interpret the scope of the requirement as set out in the solicitation.
  4. The solicitation clearly specified a minimum dimension of 20” X 60”, set out in imperial units of measurement. The process of conversion by TDI to metric units of measurement and then a reconversion back to imperial units, resulting in a marginally larger dimension, hence favourable to the award of additional points, was not what the requirement called for.
  5. This had the effect of producing two entirely different dimensional propositions, one of which improperly generated a greater number of points for a given bidder. PWGSC was not at liberty to allow such conversions or to proceed to choose between different units of measurement; it could only evaluate in accordance with the terms of the requirement, in this case, imperial units. To adopt a path where the attribution of additional points is justified following incremental conversion values is disingenuous, at best.
  6. Thus, the Tribunal can only conclude that the evaluation of TDI’s proposal in regard to the running deck requirement is not supported by a tenable explanation.
  7. Further, as concerns the user running weight requirement, regarding which TDI also made two entirely conflicting indications, it was incumbent upon PWGSC to act in accordance with Part 5 of the RFP in seeking a verification resulting in a singular, unambiguous indication. To the extent that the provisions in Part 5 of the RFP were discretionary, the conflicting indications by TDI, coupled with established jurisprudence as set out earlier, rendered their utilization in this case imperative. What transpired in the alternative was the ignoring of vital information and a failure by the evaluators to apply themselves accordingly.
  8. It is noteworthy that, contrary to the PWGSC’s assertion, the evaluators would have been limiting themselves to the actual contents of the bid in properly interpreting the scope of the running deck requirement and in seeking an unambiguous indication with regard to the user running weight requirement. In essence, proper interpretation and verification do not equate to the importation of extraneous information.
  9. Further, the ability of evaluators to rely on the information submitted in bidders’ proposals cannot excuse a failure by those evaluators to properly interpret the scope of a requirement in a solicitation. Information that alters that scope would, by definition, be unacceptable and, thus, would not engage the question of reliability.
  10. In addition, conflicting information is, by its very essence, problematic and unreliable; reliability only becomes possible once the ambiguities have been resolved. If the evaluators had legitimately decided that they would not seek out additional information/verification on the apparent conflicting proposition, the only alternative open to them in this case was to deny TDI of those additional points.
  11. Contrary to either possible scenario, the evaluators proceeded in granting TDI 15 additional points; such a process is unjustified and amounts to the improper evaluation of the bid.
  12. In any event, PWGSC clearly admits having improperly evaluated TDI’s bid, as to user weight, and in its brief unequivocally recognizes that it should not have granted the 15 additional points which it awarded.
  13. Without these 15 additional points, TDI’s bid would not have been recommended for contract award. With a mere 1.09364 points separating TDI’s bid from Kinetic’s bid, the deduction of either the 5 (deck size) or the 15 (user weight) points, or both, improperly attributed to TDI would have allowed Kinetic to be recommended for contract award in the present procurement.
  14. On the basis of the foregoing, the Tribunal finds that Kinetic’s complaint is valid.

REMEDY

  1. As the complaint is valid, the Tribunal must consider the appropriate remedy pursuant to subsections 30.15(2) and (3) of the CITT Act.
  2. According to subsection 30.15(3) of the CITT Act, in recommending an appropriate remedy, the Tribunal must consider all the circumstances relevant to the complaint at hand, including the following:
    1. the seriousness of the deficiencies found by the Tribunal;
    2. the degree to which Kinetic and other interested parties were prejudiced;
    3. the degree to which the integrity and efficiency of the competitive procurement system were prejudiced;
    4. whether the parties acted in good faith; and
    5. the extent to which the contract was performed.
  3. The deficiencies found by the Tribunal were serious. PWGSC acted in an untenable manner, with a direct result on the outcome of a solicitation. PWGSC’s actions prejudiced Kinetic’s interests. The submissions before the Tribunal support the conclusion that Kinetic would have won the solicitation but for the errors in PWGSC’s evaluation. For these reasons, the integrity and efficiency of the competitive procurement process were prejudiced. However, the Tribunal is not of the opinion that PWGSC acted in bad faith, and the Tribunal notes that the contract has been performed by TDI.
  4. According to subsection 30.15(2) of the CITT Act, the Tribunal may recommend any one or more of the following remedies:
    1. that a new solicitation for the designated contract be issued;
    2. that the bids be re-evaluated;
    3. that the designated contract be terminated;
    4. that the designated contract be awarded to the complainant; or
    5. that the complainant be compensated by an amount specified by the Tribunal.
  1. Kinetic has requested compensation for lost profits in the amount of $54,378.00, representing 20 percent of its bid amount. PWGSC made no submissions regarding the question of a remedy. It is the Tribunal’s determination that, in light of the circumstances of this complaint, including the fact that the contract has been performed, Kinetic should be compensated for reasonable lost profits.
  2. The Tribunal requests submissions from the parties on the quantum of that remedy. Kinetic will have 30 days from the date of the release of this determination to file its submissions with the Tribunal, with a copy delivered to PWGSC, subsequent to which PWGSC will have 20 days to file its response with the Tribunal, with a copy delivered to Kinetic. The Tribunal retains jurisdiction to establish the quantum of the remedy.

COSTS

  1. Pursuant to section 30.16 of the CITT Act, the Tribunal awards Kinetic its reasonable costs incurred in preparing the complaint.
  2. In determining the amount of the cost award for this complaint, the Tribunal considered its Procurement Costs Guideline (the Guideline), which contemplates classification of the level of complexity of cases on the basis of three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.
  3. The Tribunal’s preliminary determination is that this complaint has a complexity level corresponding to the lowest level of complexity referred to in article 4.0 of the Guideline (Level 1). The complexity of the procurement was low, as it involved the provision of one type of good. The Tribunal finds that the complexity of the complaint was low, as the issues were straightforward and dealt with the proper evaluation of a proposal. Finally, the complexity of the proceedings was low, as the issues were resolved by the parties through documentary evidence and written representations, and a hearing was not necessary.
  4. Accordingly, as contemplated by the Guideline, the Tribunal’s preliminary determination of the amount of the cost award is $1,150. The parties are invited to make submissions on this cost award, should they disagree with the preliminary determination. Otherwise, the Tribunal recommends the payment of this amount by PWGSC to Kinetic with all due haste.
  5. In addition, the Tribunal awards Kinetic its reasonable bid preparation costs. In accordance with the Guideline, to determine the quantum of those costs, the Tribunal requires a brief narrative summary of the work undertaken to prepare the bid, along with detailed and itemized schedules of the costs incurred, supported by documentation. The Tribunal directs that the narrative, itemized schedules and documentation be delivered at the same time and in the same manner as the submissions regarding the quantum of reasonable lost profits, with PWGSC’s response also similarly delivered. The Tribunal’s order regarding the quantum of the remedy will also dispose of the question of reasonable bid preparation costs.

DETERMINATION OF THE TRIBUNAL

  1. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is valid.
  2. Pursuant to section 30.15 of the CITT Act, the Tribunal determines that Kinetic should be compensated for reasonable lost profits. The Tribunal requests submissions from the parties on the quantum of that remedy.
  3. Pursuant to section 30.16 of the CITT Act, and the Guideline, the Tribunal awards Kinetic its reasonable bid preparation costs, with the quantum of said costs also to be determined subsequent to the receipt of submissions.
  4. Furthermore, the Tribunal awards Kinetic its reasonable costs incurred in preparing the complaint. The Tribunal’s preliminary determination of the amount for complaint costs is $1,150 (Guideline – Level 1). Parties are invited to make submissions on the cost award, should they disagree with the preliminary determination.
  5. The Tribunal retains jurisdiction to establish the quanta of compensation and costs set out above.

IN THE MATTER OF a complaint filed by 3202488 Canada Inc. o/a Kinetic Solutions pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.);

AND FURTHER TO a decision to conduct an inquiry into the complaint pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN

3202488 CANADA INC. O/A KINETIC SOLUTIONS Complainant

AND

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES Government Institution

CORRIGENDUM

Paragraph 16 should have read as follows:

That request was filed on March 3, 2014 . . . .

 

[1].     R.S.C., 1985, c. 47 (4th Supp.) [CITT Act].

[2].     Exhibit PR-2014-025-12, Exhibit 1, Vol. 1.

[3].     Exhibit PR-2014-025-12 at para. 5, Vol. 1.

[4].     Exhibit PR-2014-025-12, Exhibit 6, Vol. 1.

[5].     Ibid., Exhibit 8.

[6].     Exhibit PR-2014-025-12, Exhibit 8, Vol. 1. The Supply Manual, at https://buyandsell.gc.ca/policy-and-guidelines/Supply-Manual, is a policy and guideline document for use by procurement officers of the Government of Canada.

[7].     Exhibit PR-2014-025-12, Exhibit 9, Vol. 1.

[8].     Ibid.

[9].     Ibid., Exhibit 10.

[10].   R.S.C., 1985, c. A-1. Those paragraphs pertain to “financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party”, and “information the disclosure of which could be reasonably expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party”.

[11].   Exhibit PR-2014-025-01A, Vol. 1.

[12].   S.O.R./93-602 [Regulations].

[13].   Thus, as made clear on page 13 of the GIR, the metric units were indicated by TDI in addition to, not in place of, the imperial units, and on that basis the evaluators had initially granted or considered granting zero points to TDI’s bid for the running deck size requirement.

[14].   Thus, in effect, TDI provided two running deck sizes and, in essence, PWGSC chose one.

[15].   Exhibit PR-2014-025-12 at 13-14, Vol. 1. PWGSC additionally stated that the “minimum weight . . . while running” stipulation made in the solicitation should have read “maximum weight . . . while running”. PWGSC posited that, despite this inaccuracy, the overall meaning of the requirement was clear, as the word “maximum” was used elsewhere in the solicitation and, further, that no concerns were raised by bidders regarding that issue during the bid period. As the stipulation of a minimum running weight would have been conceptually absurd, and as a maximum running weight was stipulated elsewhere in the solicitation, the Tribunal is in agreement with PWGSC that the overall meaning remained clear.

[16].   Exhibit PR-2014-025-12A (protected) at 14, Vol. 2.

[17].   Ibid. at 15.

[18].   Ibid.

[19].   Reference was made to Chamber of Shipping of British Columbia (24 March 2010), PR-2009-069 (CITT) at para. 59, as well as to Secure Computing LLC (23 October 2012), PR-2012-006 (CITT) at para. 41.

[20].   Reference was made to 3202488 Canada Inc. o/a Kinetic Solutions (18 February 2011), PR-2010-089 (CITT) at para. 18, as well as to Sanofi Pasteur Limited (12 May 2011), PR-2011-006 (CITT) at paras 22-23.

[21].   Reference was made to BRC Business Enterprises Ltd. (27 September 2010), PR-2010-012 (CITT) [BRC] at para. 43, as well as to Excel Human Resources Inc. v. Department of the Environment (2 March 2012), PR‑2011-043 (CITT) [Excel] at para. 33.

[22].   Exhibit PR-2014-025-17 at 1, Vol. 1.

[23].   Ibid. at 2, Vol. 1.

[24].   Ibid. at 1; Exhibit PR-2014-025-01A at 37, Vol. 1.

[25].   Exhibit PR-2014-025-01A at 37, Vol. 1.

[26].   BRC at para. 43.

[27].   BRC at para. 43; Excel at para. 33; Northern Lights Aerobatic Team, Inc. (7 September 2005), PR-2005-004 (CITT).

Case Number(s)

PR-2014-025

Attachment(s)

pr2o025_e.pdf (147.96 KB)

Status

Publication Date

Monday, January 11, 2016

Modification Date

Monday, January 11, 2016