Procurement

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TABLE OF CONTENTS

• DETERMINATION OF THE TRIBUNAL
• STATEMENT OF REASONS
• • COMPLAINT
  • PRELIMINARY MATTER
  • PROCUREMENT PROCESS
  • TRIBUNAL’S ANALYSIS
  • • Requirement to Bid Firm Prices
    • Requirement for Basket-of-Goods Price List to Reflect Editable Price List
  • COSTS
  • DETERMINATION OF THE TRIBUNAL

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IN THE MATTER OF a complaint filed by Global Upholstery Co. Inc. under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

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

BETWEEN
GLOBAL UPHOLSTERY CO. INC.	Complainant
AND
THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES	Government Institution

Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is not valid.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards the Department of Public Works and Government Services its reasonable costs incurred in responding to the complaint, which costs are to be paid by Global Upholstery Co. Inc. The Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Canadian International Trade Tribunal, as contemplated by the Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of the award.

Hélène Nadeau
Hélène Nadeau
Secretary

Tribunal Member:	Pasquale Michaele Saroli, Presiding Member
Director:	Rose Ritcey
Investigation Manager:	Michael W. Morden
Investigator:	Josée B. Leblanc
Counsel for the Tribunal:	Jidé Afolabi
Complainant:	Global Upholstery Co. Inc.
Counsel for the Complainant:	Paul M. Lalonde
	Martha Harrison
	Judith Parisien
Intervener:	BRC Business Enterprises Ltd.
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	David M. Attwater
	Susan D. Clarke
	Ian McLeod
	Karina Fauteux

Please address all communications to:

COMPLAINT

1. On February 19, 2009, Global Upholstery Co. Inc. (Global) 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 Solicitation No. E60PQ-080001/B issued by the Department of Public Works and Government Services (PWGSC) on behalf of various government departments for the provision of four different categories ² of free-standing office furniture.

2. Global submitted that PWGSC improperly disqualified its proposal regarding the three categories of furniture (categories 1, 2 and 4) on which it had bid. As a remedy, Global requested (1) that PWGSC include Global as an approved supplier of these categories of furniture; (2) in the alternative, that Global be compensated for the profits that it could reasonably have expected to have made, had it not been disqualified; or (3) in the further alternative, that Global be compensated by an amount equal to the costs that it incurred in preparing its proposal. Global also requested that it be compensated for the costs that it incurred in bringing the complaint before the Tribunal.

3. On March 2, 2009, the Tribunal informed the parties that the complaint had been accepted for inquiry, since 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. ³ The Tribunal limited its inquiry to the allegation that PWGSC incorrectly deemed Global’s proposal non-compliant with respect to categories 2 and 4. It decided not to inquire into Global’s ground of complaint relating to category 1.

4. On March 10, 2009, the Tribunal granted BRC Business Enterprises Ltd. (BRC) intervener status. On April 7, 2009, PWGSC submitted the Government Institution Report (GIR). On April 21, 2009, Global filed its comments on the GIR. BRC did not make any filings with regard to the inquiry.

5. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that a hearing was not required and disposed of the complaint on the basis of the written information on the record.

6. Section 7 of the Regulations requires the Tribunal to determine whether the information provided by the complainant discloses a reasonable indication that the procurement has not been carried out in accordance with whichever of Chapter Ten of the North American Free Trade Agreement, ⁴ Chapter Five of the Agreement on Internal Trade, ⁵ the Agreement on Government Procurement ⁶ or Chapter Kbis of the Canada-Chile Free Trade Agreement ⁷ applies. In this case, all four trade agreements apply.

PRELIMINARY MATTER

7. On January 30, 2009, PWGSC advised Global that both lines of furniture that it submitted for category 1 were “. . . non-compliant to the technical requirements of Annex ‘A’ - specifications”. Specifically, it stated the following:

The partial modesty panels on the D-Top work surfaces proposed by [Global] . . . are 10 inches off the floor as per your e-mail dated January 7, 2009. As stated in PD-1, paragraph 3.2, the modesty panel must have a minimum height allowance of at least 16 inches. . . . ⁸

8. Global acknowledged that the specification referred to by PWGSC required that “[p]artial modesty panels must have a minimum height allowance of 406 mm (16 in.)”. ⁹ However, it contended that, because the specification required the minimum height in order “. . . to allow for electrical outlets to be accessed”, ¹⁰ it was created for surfaces to be located against a wall. Global submitted that, because the D-Top work surface is intended to provide a work surface running perpendicular to a wall, the modesty panel is attached to the centre of the underside of the work surface to ensure that people can sit around it. According to Global, given the normally intended location of the D-Top work surface, it was entirely reasonable for it to interpret the modesty panel requirement of 16 in. as not applying to the D-Top work surface, as to suggest otherwise would make no practical sense.

9. The Tribunal notes that this particular requirement was the subject of a clarification question during the bidding period. Specifically, answer No. 33 in amendment No. 005 advised bidders of the following:

PD-3 item 3.2 states a minimum height allowance of 16"; this is to be measured from floor to the bottom of the partial modesty panel (open clearance from floor). ¹¹

10. As the Tribunal has stated in the past, it is the prerogative of the procuring entity to define its own procurement needs. ¹² The Tribunal has further indicated in the past that, “. . . while PWGSC has the right to establish the parameters of an RFP, it must do so reasonably. PWGSC does not have licence to establish conditions that are impossible to meet.” ¹³ Thus, the prerogative of the procuring entity to define its procurement needs is circumscribed by “reasonableness”.

11. In the Tribunal’s opinion, the requirement for a 16–in. modesty panel is not a condition that is impossible to meet and, further, it is not unreasonable. It is conceivable, for example, that the modesty panel requirement reflected the procuring entity’s desire, for expenditure control or other purposes, to retain some measure of flexibility as to future office space re-configurations as needs changed, even if this involved the less-than-optimal placement of specific pieces of furniture.

12. In any event, with regard to timeliness, the Tribunal notes that subsection 6(1) of the Regulations provides that a complaint shall be filed with the Tribunal “. . . not later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier.” Subsection 6(2) provides that a potential supplier that has made an objection to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal “. . . within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier.”

13. In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become aware, of its ground of complaint either to object to the government institution or to file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.

14. It is incumbent upon a bidder that believes that a requirement is unreasonable, to take steps to seek relief within the time periods prescribed under section 6 of the Regulations. Global, an experienced bidder, should have taken such steps rather than read its own limitations into the scope of an explicit mandatory requirement. In the Tribunal’s view, allowing a bidder to summarily determine the reasonableness of requirements instead of seeking relief in a timely manner would undermine the functioning and integrity of the government procurement system.

15. Global was fully aware of the requirement for the 16–in. modesty panel on the date on which it received amendment No. 005, on or about November 12, 2008. Accordingly, if Global had any concerns regarding this requirement, a complaint should have been filed, or an objection made to PWGSC, within 10 working days of that date. Global did not file its complaint with the Tribunal until February 19, 2009. Therefore, the Tribunal concludes that it exceeded the allowable time period for seeking relief.

16. In the light of the foregoing, the Tribunal will not conduct an inquiry into the ground of complaint alleged by Global in relation to category 1.

PROCUREMENT PROCESS

17. On October 15, 2008, PWGSC made available, through MERX, ¹⁴ a Request for a Standing Offer (RFSO) to establish one or more National Master Standing Offers (NMSOs) for the supply, delivery and installation, on a national basis, of four different categories of free-standing furniture. Bidders could submit proposals to supply any or all categories of furniture. According to PWGSC, the furniture that was to be considered for evaluation purposes was contained in a listing identified as the “basket of goods”. Each category had a separate basket of goods. It was mandatory for bidders that proposed to supply a particular category to provide prices for all furniture in the basket of goods for that category. Bidders were able to offer more than one series of furniture in a category, as long as each series met the specifications of the category. According to PWGSC, it was mandatory for bidders to provide a list of prices for the basket-of-goods and a separate list, called the editable price list.

18. The bidding period closed on December 2, 2008.

19. According to Global, the following exchanges took place between it and PWGSC on the following dates:

TRIBUNAL’S ANALYSIS

20. Subsection 30.14(1) of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of the complaint. Furthermore, at the conclusion of the inquiry, the Tribunal must determine the validity of the complaint on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been observed. Section 11 of the Regulations further provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, as noted above, are the AIT, NAFTA, the AGP and the CCFTA.

21. Article 506(6) of the AIT provides that “. . . tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria.”

22. Article 1013 of NAFTA provides that tender documentation “. . . shall contain all information necessary to permit suppliers to submit responsive tenders, including . . . the criteria for awarding the contract . . . .”

23. Article XII of the AGP provides that tender documentation “. . . shall contain all information necessary to permit [suppliers] to submit responsive tenders, including . . . the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders . . . .”

24. Article Kbis-06(1) of the CCFTA provides that PWGSC “. . . shall provide interested suppliers tender documentation that includes all the information necessary to permit suppliers to prepare and submit responsive tenders. The documentation shall include all criteria that the entity will consider in awarding the contract, including all cost factors, technical requirements and the weights or, where appropriate, the relative values, that the entity will assign to these criteria in evaluating tenders.”

25. Pursuant to Part 3 of the RFSO, “Offer Preparation Instructions”, offers were to contain two sections: (1) the technical offer and (2) the financial offer. Part 3 further required that “. . . [p]rices . . . appear in the financial offer only. No prices must be indicated in any other section of the offer. . . .” Part 3 also required that “. . . [o]fferors . . . submit their financial offer in accordance with Annex B – Pricing and Basket of Goods. . . .”

26. The term “Basket of Goods” is defined in Part 1 of the RFSO, “Key Terms”, as follows:

Basket of goods: The list of all selected products available on the Standing Offer used for evaluation purposes as detailed in Annex B.

27. Part 4 of the RFSO, “EVALUATION PROCEDURES AND BASIS OF SELECTION”, requires the following:

Offerors must submit their financial offer in accordance with the Basis of Payment in Part 6B and Pricing and Basket of Goods detailed in Annex B.

28. The pricing instructions contained in Annex B require the quotation of “firm unit list prices” ¹⁶ for all furniture in a category’s basket-of-goods price list.

29. In addition to the basket-of-goods price list, mandatory technical criterion MT3, which is set out in Part 4 of the RFSO, required the submission of an editable price list as follows:

1.1 Mandatory Technical and Environmental Criteria

Mandatory Technical Criteria must be submitted with the proposal (Failure to do so will render the bid non-responsive)

. . . 

MT3 Editable electronic copy of price list detailed at Annex B ¹⁷

30. The relationship between the basket-of-goods price list and the editable price list was addressed by answer No. 6 in amendment No. 006 as follows:

Question no 6:

You mention in Amendment NO 5 Question/Answer of # 3 A and B that “the editable price list will be used as part of the financial evaluation of the bids.” This is the first time PWGSC mentions this and not only the basket goods. Can you please confirm that it will not be part of the evaluation or how will you use this to evaluate the bids?

Answer no 6:

The initial financial evaluation is based on the basket of goods. However Annex A of the standing offer will be created from the editable price list (including additional items) and therefore it is required at time of bid closing.

The firm list price in the basket of goods must reflect the firm list price in the submitted editable price list.

31. The parties do not dispute that the financial evaluation of offers would be based on the basket-of-goods price list and that the quotation of “firm prices” was required. They also agree that bidders were required to submit both a basket-of-goods price list and an editable price list and that the firm prices in the former were to “reflect” the firm prices in the latter.

32. Regarding Global’s contention that the editable price list should take precedence over the basket-of-goods price list, PWGSC submitted that the “Priority of Documents” provision found in the RFSO did not apply to the evaluation of proposals, but rather to any standing offer issued pursuant to the RFSO. The Tribunal is in agreement with PWGSC’s interpretation and finds that the “Priority of Documents” provision of the RFSO does not apply to the proposal evaluation process. The Tribunal notes that the provision is found in Part 6 of the RFSO, “STANDING OFFER AND RESULTING CONTRACT CLAUSES”, and therefore concludes that it is clearly related to contractual terms that will prevail once standing offers are issued. The RFSO does not state that the same priority listing will be used during bid evaluation, and the Tribunal can find no other provision that specifically states which list takes priority in the event of a discrepancy at the bid evaluation stage.

33. Regarding the evaluation of Global’s proposal, PWGSC contended that the proposal was properly found non-compliant because, by proposing different prices in its basket-of-goods price list and editable price list for several of the same furniture items, Global failed to meet the mandatory requirement for “firm” prices in the RFSO. According to PWGSC, the word “reflect”, as stipulated in amendment No. 006 and in the context of the requirement for firm prices, can only mean “the same” or “identical” and, therefore, in order for the price of a particular furniture item to be considered “firm” in the basket-of-goods price list, an identical price for the item must also have been quoted in the editable price list. In any event, although PWGSC denied that there was any ambiguity, it submitted that the onus was on Global to seek clarification during the bidding period, which it did not do.

34. PWGSC submitted that “reasonableness” is the appropriate standard of review with regard to evaluations and that, when considering the reasonableness of an evaluator’s decision, the Tribunal should have regard to whether the information before the evaluator reasonably supports the decision and the reasons for that decision. To support its submission, PWGSC relied upon the Tribunal’s decision in File No. PR-2005-004. ¹⁸ According to PWGSC, the evaluators’ decision regarding Global’s proposal will satisfy the reasonableness standard if it is supported by a tenable explanation, even if this explanation is not one that the Tribunal finds compelling.

35. PWGSC further submitted that even if, contrary to Northern Lights, the proper test regarding the evaluation of compliance with mandatory requirements is “substantial compliance”, the provision of firm prices for evaluation and sale purposes is a material condition that may not be waived or ignored. It submitted that providing two prices for the same furniture cannot reasonably be characterized as immaterial and that proposing two prices for the same furniture clearly affects the price and performance of a standing offer.

36. For its part, Global submitted that the price discrepancies between its basket-of-goods price list and the editable price list were “microscopic” and that it is entirely unreasonable for PWGSC to conclude that the two lists did not reflect one another. It submitted that there were only 2 discrepancies in the 2,330 prices quoted in the editable price list for category 2 and 10 discrepancies in the 1,379 prices quoted for category 4. Global argued that, by any sensible measure, the two lists did reflect one another and that Global had substantially complied with the requirement. Finally, Global reiterated that, by virtue of its January 9, 2009, e-mail, it had indicated that it would honour the prices found in its basket-of-goods price list.

37. Global alleged that, in disqualifying its proposal, PWGSC construed the requirements of the solicitation in “an isolated and disjunctive manner”, without a consideration of the context of the solicitation and of the price list requirements. In this regard, Global asserted that minor price differences on price lists containing such a large number of line items would not justify the rejection of a bid under the prevailing legal standard, which, Global indicated, was one of “substantial compliance”. Global submitted that, by failing to consider the technical nature of the deficiencies and by failing to consider that such minor imperfections did not operate to undermine the integrity of the tendering process, PWGSC did not conduct the evaluation in a “procedurally fair way” and, as such, put itself squarely within the purview of the Tribunal’s authority to substitute its judgment for that of PWGSC. Global further asserted that its basket-of-goods price list did “reflect” its editable price list and, therefore, complied with the essential requirements of the solicitation, reasonably and contextually interpreted. ¹⁹

38. Global also submitted that PWGSC was wrong in asserting that it had not offered “firm” prices in its proposal, citing the following dictionary definition of the term “firm offer”:

An offer by a merchant to buy or sell goods in a signed writing which by its terms give assurance that it will be held open, is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror. U.C.C. 2-205. A binding; definite offer. ²⁰

39. In this regard, Global submitted that the prices in its proposal, not being subject to change during the period of validity of the offer, were indeed “firm”.

40. As the Tribunal has indicated in the past, a procuring entity must undertake its evaluation and make its award in accordance with the criteria and essential requirements specified in the tender documentation. This obligation will be met where the procuring entity makes a reasonable evaluation, in good faith, of the competing bid documents that have been submitted. ²¹

41. The reasonableness standard, as it applies to the evaluation of bids, is well established in Tribunal jurisprudence. In this regard, a reasonable evaluation is one that is supported by a tenable explanation, even if that explanation is not one that the Tribunal itself finds compelling. ²² In line with past determinations, the Tribunal is of the opinion that the explanation of a procuring entity is untenable where the evaluators did not apply themselves in evaluating a bidder’s proposal, ignored vital information provided in a bid, wrongly interpreted the scope of a requirement, based their evaluation on undisclosed criteria, or otherwise failed to conduct the evaluation in a procedurally fair manner. It is only in such instances that the Tribunal will substitute its own judgment for that of the evaluators. ²³

Requirement to Bid Firm Prices

42. Section 6E.525 of PWGSC’s Supply Manual ²⁴ defines “firm price” as follows:

. . . a price, which is not subject to adjustment, to reflect actual costs incurred by the contractor in performance of the contract or part thereof. It gives maximum profit incentive to the contractor for cost control, in that the contractor assumes full responsibility for all costs under or over the firm price. In addition, it places a minimum administrative burden on both contracting parties.

43. In view of this definition and given (1) the uncontested fact that, under the RFSO, the financial evaluation was to be based on the basket-of-goods price list, ²⁵ (2) the fact that there is nothing within the four corners of Global’s basket-of-goods price list to suggest that the prices therein contained were anything but “firm”, that is to say, the prices were not qualified in any way to suggest that they were subject to any adjustment based on the contractor’s costs during the performance of the contract, (3) the fact that any issue as to the “firmness” of Global’s basket-of-goods pricing only arose by comparison to its editable price list, which, though not the basis of the financial evaluation, revealed a relatively small number of isolated price discrepancies, and (4) the fact that Global’s January 9, 2009, e-mail response to the December 30, 2008, request from PWGSC for confirmation that Global would honour its basket-of-goods prices did not involve any attempt by Global to “repair” its basket-of-goods pricing, the Tribunal considers that Global met the requirement to bid firm prices. As Global’s prices were not variable or otherwise subject to adjustment to reflect its anticipated cost experience, the isolated discrepancies between the two price lists were consistent with erroneous transcription but did not undermine the firm and fixed nature of the prices quoted by Global in its basket-of-goods price list, which was the stated basis of the financial evaluation. In this regard, the Tribunal is of the opinion that PWGSC wrongly interpreted the scope of the firm price requirement, expanding it to encompass the relative degree of exactness between the two price lists at issue and, as such, the Tribunal concludes that PWGSC’s position is untenable.

44. The Tribunal thus concludes that Global’s price quotations for the basket of goods, which, under the terms of the RFSO, were the basis for financial evaluation, should have been treated as firm, which would have allowed PWGSC to proceed with its evaluation of Global’s offer.

Requirement for Basket-of-Goods Price List to Reflect Editable Price List

45. The Tribunal notes that the word “reflect” as it appears in answer No. 6 in amendment No. 006 is not defined in the RFSO. The answer states as follows:

The firm list price in the basket of goods must reflect the firm list price in the submitted editable price list.

[Emphasis added]

46. The definition of the word “reflect” in the Canadian Oxford Dictionary, ²⁶ “reproduce or show an image of”, and in The Concise Oxford Dictionary of Current English, ²⁷ “. . . exactly correspond in appearance . . .”, both call for exactitude.

47. Price is generally a critical consideration in the evaluation of competing bids and the awarding of contracts. In this regard, while the basket-of-goods price list was used to evaluate the financial offers, the editable price list was to be used to derive the actual prices to be charged to departments during the period of the standing offer. ²⁸ Accordingly, the Tribunal does not consider PWGSC’s interpretation that the word “reflect” requires exact correspondence between the two price lists to be unreasonable nor does it agree with Global’s contention that the discrepancies between the price lists were merely “technical”. In short, given the use to be made of the two price lists, the Tribunal does not find the explanation underlying PWGSC’s insistence on an exact correspondence between the two price lists untenable.

48. In the Tribunal’s opinion, Global’s decision, as stated in its January 9, 2009, e-mail, “. . . to agree to provide the incorrectly priced units [in the editable price list] at the prices stated in the Basket of Goods” would have constituted bid repair in relation to its editable price list, a practice that, as the Tribunal has previously stated, is unacceptable. ²⁹

49. As the Tribunal has noted in previous cases, the responsibility for ensuring that a proposal is compliant with all essential elements of a solicitation ultimately resides with the bidder. ³⁰ Therefore, it is incumbent upon the bidder to exercise due diligence in the preparation of its proposal to make sure that it is compliant in all essential respects.

50. The Tribunal has no doubt that the review of thousands of line items to ensure price consistency between the two lists was an onerous task. That is not to say, however, that it was an unrealistic one. Indeed, Global indirectly affirms this point in its comments on the GIR, by indicating that it had subsequently conducted a further comprehensive review of its category 4 price lists, which confirmed the number of price differences identified in its complaint:

. . . Global has carefully reviewed its proposal again and confirms that it contains only the 10 differences identified in its Complaint and no more. . . . ³¹

51. Accordingly, as a result of the absence of full price concordance between the two lists, Global’s bid violated a mandatory requirement of the RFSO, namely, that the basket-of-goods price list “reflect” the editable price list.

52. In the light of the foregoing, the Tribunal determines that Global’s complaint with respect to categories 2 and 4 is not valid.

COSTS

53. The Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint. The Tribunal has considered its Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline) and is of the view that this complaint case has a complexity level corresponding to the lowest level of complexity referred to in Appendix A of the Guideline (Level 1). The Guideline contemplates classification of the level of complexity of complaint cases based on three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings. The complexity of the procurement was medium, in that it was for slightly complex off-the-shelf items that included an element of installation servicing. The complexity of the complaint was low, in that the grounds of complaint involved a single criterion. Finally, the complexity of the complaint proceedings was low, as there were no motions and only a single intervener that did not make any submissions, a public hearing was not required, and, although the 135-day time frame was invoked, the parties did not file information beyond the normal scope of proceedings. Accordingly, as contemplated by the Guideline, the Tribunal’s preliminary indication of the amount of the cost award is $1,000.

DETERMINATION OF THE TRIBUNAL

54. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.

55. Pursuant to section 30.16 of the CITT Act, the Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint, which costs are to be paid by Global. The Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated by the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the award.

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

² . Category 1, “Freestanding Office Desk Products and Components - Executive”; category 2, “Freestanding Office Desk Products and Components - General Office - Fixed Height, Full Panel”; category 3, “Freestanding Office Desk Products and Components - General Office - Fixed Height with Metal Legs”; and category 4, “Freestanding Office Desk Products and Components - General Office - Height Adjustable (seated position)”.

³ . S.O.R./93-602 [Regulations].

⁴ . North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA].

⁵ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].

⁶ . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].

⁷ . Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50 (entered into force 5 July 1997) [CCFTA].

⁸ . Complaint, tab 17.

⁹ . Complaint at para. 26.

¹⁰ . Complaint at para. 26.

¹¹ . Complaint, tab 20.

¹² . Re Complaint Filed by FLIR Systems Ltd. (25 July 2002), PR-2001-077 (CITT).

¹³ . Re Complaint Filed by MTS Allstream Inc. (5 August 2005), PR-2004-061 (CITT) at para. 67.

¹⁴ . Canada’s electronic tendering service.

¹⁵ . In its complaint, Global advised the Tribunal that there was no such page in amendment No. 006 and that it believed that PWGSC meant to direct Global to question and answer 6 of amendment No. 005.

¹⁶ . RFSO at 37.

¹⁷ . The wording of MT3 was amended by amendment No. 003 to read “[e]ditable soft copy of price list [CD format] detailed at Annex B”.

¹⁸ . Re Complaint Filed by Northern Lights Aerobatic Team, Inc. (7 September 2005), PR-2005-004 (CITT) [Northern Lights].

¹⁹ . Global’s comments on the GIR at para. 39.

²⁰ . Cited by Global as Black’s Law Dictionary, 8th ed., s.v. “firm offer”.

²¹ . Re Complaint Filed by Bosik Vehicle Carriers Ltd. (6 May 2004), PR-2003-082 (CITT); Northern Lights.

²² . Re Complaint Filed by Joint Venture of BMT Fleet Technology Limited and NOTRA Inc. (5 November 2008), PR-2008-023 (CITT); Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.

²³ . Re Complaint Filed by Excel Human Resources Inc (operating as excelITR) (25 August 2006), PR-2005-058 (CITT); Re Complaint Filed by Vita-Tech Laboratories Ltd. (18 January 2006), PR-2005-019 (CITT); Re Complaint Filed by Polaris Inflatable Boats (Canada) Ltd. (23 June 2003), PR-2002-060 (CITT).

²⁴ . <http://www.tpsgc-pwgsc.gc.ca/app-acq/ga-sm/chapitre06-chapter06-eng.html#firmprice>.

²⁵ . The Tribunal notes that answer No. 3 A and B in amendment No. 005 provided the following: “The editable price list will be used as part of the financial evaluation of bids.” This appears to run counter to the express terms of Part 4 of the RFSO, which provided that “[o]fferors must submit their financial offer in accordance with the Basis of Payment in Part 6B and Pricing and Basket of Goods detailed at Annex B.” Answer No. 6 in amendment No. 006, however, clarified this issue by stating that “[t]he initial financial evaluation is based on the basket of goods. . . .”

²⁶ . Second ed., s.v. “reflect”.

²⁷ . Seventh ed., s.v. “reflect”.

²⁸ . Answer No. 6, amendment No. 006.

²⁹ . Re Complaint Filed by Maxxam Analytics Inc. (20 September 2007), PR-2007-017 (CITT).

³⁰ . Re Complaint Filed by Trans-Sol Aviation Service Inc. (1 May 2008), PR-2008-010 (CITT); Re Complaint Filed by Integrated Procurement Technologies, Inc. (14 April 2008), PR-2008-007 (CITT).

³¹ . Comments on the GIR at para. 14.