Procurement

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TABLE OF CONTENTS

• DETERMINATION OF THE TRIBUNAL
• STATEMENT OF REASONS
• • COMPLAINT
  • PROCUREMENT PROCESS
  • POSITIONS OF PARTIES
  • • Argair
    • PWGSC
  • TRIBUNAL’S ANALYSIS
  • • Reasons Invoked by PWGSC to Declare Argair’s Proposal Non-compliant
    • Scope of the Requirement
    • Evaluation of Argair’s Candidate’s Experience
    • Remedy and Costs
  • DETERMINATION OF THE TRIBUNAL

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IN THE MATTER OF a complaint filed by Argair Aerospace Limited pursuant to 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 pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN
ARGAIR AEROSPACE LIMITED	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 valid.

Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal recommends that the Department of Public Works and Government Services not exercise the option to extend the contract and allow it to expire after the initial one-year period.

Pursuant to subsection 30.15(4) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Argair Aerospace Limited its reasonable costs incurred in preparing its proposal for the subject solicitation. Argair Aerospace Limited shall file with the Canadian International Trade Tribunal, within 40 days of the date of this determination, a submission on the issue of bid preparation costs. The Department of Public Works and Government Services will then have 7 working days after the receipt of Argair Aerospace Limited’s submission to file a response. Argair Aerospace Limited will then have 5 working days after the receipt of the Department of Public Works and Government Services’ reply submission to file additional comments.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Argair Aerospace Limited its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by the Department of Public Works and Government Services. In accordance with the Guideline for Fixing Costs in Procurement Complaint Proceedings, the Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 2, and its preliminary indication of the amount of the cost award is $2,400. 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.

Dominique Laporte
Dominique Laporte
Secretary

Tribunal Member:	Pasquale Michaele Saroli, Presiding Member
Director:	Randolph W. Heggart
Investigation Manager:	Michael W. Morden
Investigator:	Josée B. Leblanc
Counsel for the Tribunal:	Georges Bujold
Complainant:	Argair Aerospace Limited
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Susan D. Clarke Ian McLeod Karina Fauteux

Please address all communications to:

COMPLAINT

1. On November 20, 2009, Argair Aerospace Limited (Argair) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act. ¹ The complaint concerned a Request for Proposal (RFP) under a Supply Arrangement (SA) (Requisition No. W8476-10-KW05) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the provision of mechanical engineering support services.

2. Argair alleged that its proposal was incorrectly determined by PWGSC to be non-compliant with the mandatory requirement set out in paragraph 6.2 b. of Annex B to the RFP, relating to demonstrated experience, and that PWGSC’s interpretation of that requirement indicated that the solicitation was designed to be open to only a few select bidders, contrary to fair competition. As a remedy, Argair requested that its proposal be considered technically compliant and, if it submitted the lowest-priced proposal, that it be awarded the contract. It requested its bid preparation costs and its costs incurred in preparing and proceeding with the complaint. It also requested that the Tribunal issue an order postponing the award of the contract. ²

3. On November 27, 2009, the Tribunal informed the parties that the complaint had been accepted 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. ³ On December 22, 2009, PWGSC submitted the Government Institution Report (GIR). On January 6, 2010, Argair filed comments on the GIR.

4. 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.

PROCUREMENT PROCESS

5. On September 15, 2009, PWGSC issued a solicitation for bids from holders of SA E60BQ-008SAD/A for the provision of senior mechanical engineering support services to DND’s Directorate Combat Support Equipment Management (DCSEM) for a period of one year, with the option to renew for four additional one-year periods. The due date for the receipt of bids was October 6, 2009. The solicitation documents consisted of the following: the contracting and bidding terms and conditions; Annex A, “Statement of Work” (SOW); and Annex B, “Technical Evaluation Plan”. As this was an RFP issued under an existing SA, certain terms of the latter were incorporated by reference in the former. In this regard, the RFP specifically provides as follows: “Unless otherwise specified in this document, all terms and conditions contained in the Supply Arrangements issued as a result of RFSA solicitation No. E60BQ-008SAD/A are hereby incorporated into this RFP by reference.” ⁴ Section 6.6 of the SA itself provides as follows:

6.6 Only as otherwise indicated in a specific SA RFP, the following “Instructions to Bidders” shall apply to all RFPs issued under a[n] SA:

. . .

Bids will be evaluated solely on the information provided in each Bidder’s submission. Bids not meeting all of the mandatory requirements will be given no further consideration. ⁵

[Italics added for emphasis]

6. This particular provision was replicated in paragraph 13 of section Q, “Instructions to Bidders”, of the RFP, which confirms that, in the case of the RFP at issue, bids that did not meet all the mandatory requirements would not be given further consideration. Paragraph 13 reads as follows:

13) Bids will be evaluated solely on the information provided in each Bidder’s submission. Bids not meeting all of the mandatory requirements will be given no further consideration.

[Italics added for emphasis]

7. More specifically, Annex B, “Technical Evaluation Plan”, to the RFP states as follows with respect to a bidder’s compliance with the technical requirements of the RFP:

7. TECHNICALLY COMPLIANT PROPOSAL

In order for a Bidder’s proposal to be declared technically compliant, the Bidder’s proposed candidates must meet all his/her RFSA and DCSEM 2 mandatory requirements.

8. In this regard, the “Technical Evaluation Plan” also includes the following mandatory technical requirements:

MANDATORY REQUIREMENTS FOR SENIOR MECHANICAL ENGINEERING SUPPORT SERVICES TO DIRECTORATE COMBAT SUPPORT EQUIPMENT MANAGEMENT (DCSEM 2)

6. The mandatory requirements for DCSEM are:

. . .

6.2 The proposed candidate must meet the additional mandatory qualifications for the Senior Mechanical Engineer occupational category as stated below:

. . .

b. A minimum of twelve (12) months of demonstrated experience within the last five (5) years with the Department of National Defence (DND) Equipment Management Team (EMT) in NDHQ [National Defence Headquarters] related to equipment management or engineering either as a civilian or military Crown employee or as a Contractor personnel;

. . .

[Italics added for emphasis]

9. In response to this mandatory requirement, Argair claimed, in its proposal, that its proposed candidate had 15 months of qualifying work experience acquired over two work periods of employment as follows:

10. On November 5, 2009, PWGSC advised Argair that, of the four bids that it had received in response to the RFP, only two were compliant, while two, including Argair’s, were determined to be non-compliant. In this regard, PWGSC advised Argair that, while the five months of Argair on-site experience was accepted, “[the Company X off-site experience] was discounted as it was not in NDHQ.” ⁶

11. On the same day, Argair advised PWGSC that it was contesting PWGSC’s assessment, noting that the Company X off-site experience had been accepted for another similar solicitation. Argair also requested a debriefing. On November 10, 2009, PWGSC advised Argair that it would hold an in-person debriefing on November 18, 2009. On November 11, 2009, Argair advised PWGSC that it could not attend the debriefing on that particular date. As an alternative, Argair proposed a teleconference debriefing on another date. On November 12, 2009, PWGSC cancelled the debriefing altogether and advised Argair that it would not be re-scheduled. PWGSC’s official cited the following reason: “. . . I do not have any further information that can be provided, beyond what has already been provided.” ⁷ On the same day, Argair advised PWGSC that, if it maintained its position regarding the evaluation, it would file a complaint with the Tribunal. Argair also requested that the award of the contract be delayed pending resolution of the matter.

12. On November 20, 2009, upon receipt of the additional information requested by the Tribunal, Argair’s complaint was considered filed.

POSITIONS OF PARTIES

Argair

13. In its complaint, Argair submitted that PWGSC had informed it that its proposal had been determined to be non-compliant because the Company X off-site experience “. . . was not in NDHQ.” Argair submitted that PWGSC had advised it that the work had to have been performed in NDHQ and not for NDHQ. Argair argued that the RFP did not clearly state this requirement and that an interpretation of the phrase “in NDHQ related to equipment management or engineering either as a civilian or military Crown employee or as a Contractor personnel” to mean that the services had to relate to NDHQ equipment management would promote fair competition. In support of its position, Argair claimed that the location of the desk of an individual could not reasonably have any bearing on that individual’s technical experience.

14. Argair submitted that it had reviewed many past and current RFPs and that all had based their mandatory technical requirements on experience and work performed, with none having set, as a mandatory requirement, that the work had to have been performed in a specific location or NDHQ building. It also claimed that the Company X off-site experience had been recognized in a prior similar solicitation. It further claimed that PWGSC’s position regarding this requirement revealed that the RFP was designed in a manner that allowed only a few select bidders to be able to bid successfully. ⁸

15. In support of its position, Argair noted that section 11.4 of the SOW anticipated that work to be carried out under any resulting contract might not be performed at or in an NDHQ building:

Due to the uncertain future availability of DND office facilities in the National Capital Area, the Contractor must be prepared to provide, at no additional cost to Canada, continuous flow of contracted service from their own offices or place of business and adequate work space and office equipment if, for any reason, suitable DND office facilities become unavailable.

16. Argair argued that, if this were to occur, under PWGSC’s interpretation, the technical experience gained while performing the services could be discounted and that a proposed candidate could be found technically non-compliant in future bids for similarly worded requirements. Argair claimed that this would eventually result in an unreasonable outcome for DND and all bidders, in that no one might be able to fulfill the requirements in the future.

17. In its January 6, 2010, reply to the GIR, Argair submitted that PWGSC had included additional information in its GIR, which had not been disclosed to Argair prior to the filing of its complaint, concerning the reasons why its candidate’s off-site experience at Company X had been rejected. In this regard, and contrary to the suggestion in the GIR that compliance with the mandatory requirement at issue required that the proposed candidate had acquired the experience as a member of the EMT, Argair submitted that “. . . nowhere in the RFP is it required that the proposed candidate acquired his/her experience as a member of an EMT . . . .” ⁹ Argair submitted that its proposed candidate had acquired qualifying experience working with the DND EMT, as a result of having performed his duties “. . . ‘as directed’ from the EMT . . . .” ¹⁰ The Tribunal notes PWGSC’s acknowledgement that Argair’s candidate had indeed acted under the direction of the EMT. ¹¹ Argair contended that, as a result of a contract extension (pending a transfer of the work to the contractor that won a replacement procurement competition), Company X’s contract continued until at least the fourth quarter of 2004 and did not end when PWGSC claimed that it had. Finally, it submitted that the candidate’s experience did not relate exclusively to the particular contract referred to by PWGSC in the GIR, but also included several other relevant contracts.

PWGSC

18. In the GIR, PWGSC submitted that only the Argair on-site experience met the requirement set out in paragraph 6.2 b. of Annex B to the RFP. PWGSC submitted that the Company X off-site experience was not performed with, or as part of, an EMT and that the work performed by Company X did not meet the requirement set out in the SOW. In support of this explanation, the GIR included a letter written by PWGSC’s contracting officer, who indicated as follows with regard to Company X’s contract and the EMT in question:

During the period of time in question, [Company X, the proposed candidate’s] then employer, held a contract to provide [certain services] with respect to [a particular military vehicle] fleet. These services were provided . . . at the request and direction of [the responsible] EMT. As such, [Company X] was a . . . contractor up until [a period of time prior to September 2004], when a different contractor won a replacement procurement competition. At the same time, other companies were providing . . . services with respect to other aspects and components of the [aforementioned] fleet, all at the direction of members of the EMT . . . .

Each of these . . . contracting companies contained their own engineering staff for the purpose of conducting minor engineering studies (in support of a modification or special inspection) or technical investigations (in support of reasons for premature failure of components), as directed by the responsible . . . EMT . . . in Ottawa. . . .

Consequently, to my knowledge, at no point during the period referenced in Argair’s proposal, was [Company X] or any of its employees, and in particular, [the proposed candidate], a member of the . . . EMT with respect to the [aforementioned] fleet. To my knowledge, [the proposed candidate’s] work at [Company X] was with respect to [the candidate’s] company’s . . . contract . . . and only “as directed” from the EMT (through [the candidate’s] supervisor). . . . ¹²

[Italics added for emphasis]

19. PWGSC further submitted that the contract under which the proposed candidate worked with Company X was completed outside the five-year window prescribed by the requirement in issue and, therefore, would not qualify in any event.

20. PWGSC submitted that the complaint should be dismissed and that it should be awarded its reasonable costs for responding to the complaint.

TRIBUNAL’S ANALYSIS

21. 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. 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, in this case, is the Agreement on Internal Trade. ¹³

22. Article 504(3) of the AIT provides that measures inconsistent with the non-discrimination objectives of federal government procurement include the following:

(a) the imposition of conditions on the invitation to tender, registration requirements or qualification procedures that are based on the location of a supplier’s place of business in Canada, the place in Canada where the goods are produced or the services are provided, or other like criteria;

(b) the biasing of technical specifications in favour of, or against, particular goods or services . . . or in favour of, or against, the suppliers of such goods or services for the purpose of avoiding the obligations of this Chapter;

. . .

23. Article 506(6) of the AIT provides the following:

The 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.

Reasons Invoked by PWGSC to Declare Argair’s Proposal Non-compliant

24. The Tribunal notes that, prior to the complaint being filed, PWGSC informed Argair that its proposed candidate was disqualified because the Company X off-site experience was not in NDHQ. This is made clear in the November 5, 2009, letter, and also in a subsequent e-mail from PWGSC to DND and Argair, sent on November 10, 2009, in which PWGSC confirms the following:

The DND technical evaluation team found only five (5) months of the requisite experience, namely . . . [the Argair on-site experience], while . . . was providing services . . . in the NDHQ building located in Gatineau. The regret letter to the company stated that the experience while employed at [Company X] had to be discounted as the services were not being provided in NDHQ.

[Italics added for emphasis]

25. This indicates to the Tribunal that the finding of non-compliance of Argair’s proposal was indeed based not on the nature of the work experience itself but rather on the location of its acquisition.

26. However, the Tribunal notes that the position espoused by PWGSC in its GIR differs from that stated in PWGSC’s November 5 and 10, 2009, correspondence with Argair. In particular, as discussed above, the GIR does not focus on the fact that the services were not provided in NDHQ, but rather states that the type of work that was performed by Argair did not constitute experience with a DND EMT, as was required by paragraph 6.2 b. of Annex B to the RFP.

27. In this regard, PWGSC, in noting in its GIR that “EMTs, such as DCSEM2, are organizational units within the organizational structure of National Defence Headquarters (NDHQ)” ¹⁴ [italics added for emphasis], appears to be suggesting that the phrase “in NDHQ” was not intended to denote the place where the work experience had to have been acquired, but rather the place where the EMTs were located, although this is inconsistent with the reason that was provided in PWGSC’s November 5, 2009, rejection letter, which clearly refers to the place of acquisition of the experience itself.

28. The Tribunal considers that the first issue that needs to be resolved in order to determine whether PWGSC conducted the procurement in accordance with the provisions of the AIT and, specifically, whether it evaluated Argair’s proposal in accordance with the criteria set out in the RFP, is whether PWGSC reasonably interpreted the scope of the mandatory requirement set out in paragraph 6.2 b. of Annex B to the RFP.

Scope of the Requirement

29. The Tribunal considers the phrase “in NDHQ”, as found in paragraph 6.2 b. of Annex B to the RFP, to be open to the two following interpretations:

30. In the first case, the phrase “in NDHQ” is taken to refer to the location of the DND EMT, whereas in the second, it is taken to refer to the location in which the requisite experience had to have been acquired. ¹⁵

31. The Tribunal finds that treating those words as referring not to the location of the EMTs but rather as an additional condition requiring that otherwise qualifying experience be physically acquired in NDHQ could reasonably be viewed as unfairly favouring, and restricting competition to, certain potential suppliers.

32. In this regard, Article 504(3)(b) of the AIT generally prohibits the biasing of technical specifications in favour of, or against, particular goods or services or the suppliers thereof, while Article 504(3)(a) generally prohibits, among other things, the imposition of conditions on the invitation to tender or qualification procedures that are based on the place in Canada where services are provided. It is the Tribunal’s view that, where a provision of a solicitation admits of two interpretations, one of which renders it inconsistent with a provision of an applicable trade agreement, that interpretation should generally be avoided. It is therefore reasonable and understandable that a bidder would accord it the other interpretation.

33. That being said, the fact that not all holders of an SA have access to a candidate who meets the mandatory requirements of a solicitation is not, in and of itself, necessarily indicative of such requirements having been deliberately designed to limit the solicitation to certain favoured suppliers. As the Tribunal has previously noted in PSC The Public Sector Company Limited, ¹⁶ it is conceivable that the requirements, in fact, reflect legitimate considerations bearing upon the nature of the procurement requirement itself. However, the Tribunal considers that, while there may be situations where a mandatory requirement that experience be acquired at a particular location is justified, such a requirement would have to be clearly set out in the solicitation document. In this context, Article 506(6) of the AIT requires that tender documents 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 criteria. In the Tribunal’s view, there is nothing in the solicitation itself to indicate that the locus of its acquisition had any bearing on the relevance of experience claimed by a bidder. The Tribunal notes that the GIR included a letter from PWGSC’s contracting authority, which argued that, as part of the candidate’s Company X off-site experience, the candidate “. . . did not have the advantage of working on, and becoming familiar with military networked computer information systems used by the . . . EMT members . . . .” ¹⁷ However, the Tribunal also notes that section 7.2 of the SOW appears to contemplate that a proposed candidate would not necessarily have to have this knowledge to become the winning contractor. Section 7.2 reads as follows:

To aid the Contractor in the provision of the required services Canada will provide special training on an “as and when required basis” to Contractor personnel for DND unique Computer Systems/Software that have been recently implemented or changed. These systems include but are not limited to the Material Acquisition Support Information System (MASIS), held in the NCA and is estimated at five (5) days. Canada will not incur per diem charges from the Contractor for time while the Contractor personnel are being trained. Upon completion of the special training provided by Canada to the incumbent Contractor trained personnel, should the trained incumbent personnel leave or need to be replaced during the life of the Contract, the Contractor shall pay all expenses to train the replacement personnel.

34. Having established that, in the present circumstances, it was reasonable that a bidder would not interpret the phrase “in NDHQ” in paragraph 6.2 b. of Annex B to the RFP as a reference to the place where otherwise qualifying experience had to have been acquired, there arises the related issue of the meaning to be ascribed to the words “experience . . . with” in relation to a “Department of National Defence (DND) Equipment Management Team (EMT) in NDHQ”.

35. The Tribunal agrees with Argair’s observation that “. . . nowhere in the RFP is it required that the proposed candidate acquired his/her experience as a member of an EMT . . . .” Therefore, to suggest, as PWGSC subsequently did in the GIR, that responsiveness to the mandatory requirement at issue demanded not merely that a proposed candidate had been acting under the direction, but had actually been a member of an EMT would be inconsistent with Article 506(6) of the AIT discussed above. In the Tribunal’s view, in the absence of a clear indication to the contrary, it was reasonable for a bidder to conclude that the acquisition of experience under the management and direction of an EMT would suffice for that experience to be considered to have been acquired “with” an EMT.

36. For the above reasons, the Tribunal finds that the scope of the requirement at issue, as written, was incorrectly interpreted by PWGSC.

Evaluation of Argair’s Candidate’s Experience

37. In the GIR, PWGSC claimed to have rejected the candidate’s experience at Company X not for the reason set out in its November 5, 2009, rejection letter, i.e. that the experience had not been acquired in NDHQ but: (1) because the work done by Argair’s candidate was not performed with an EMT; and (2) because, even if the work were considered to have been with an EMT (which it denied), the resulting experience was not acquired within the five-year window prescribed by paragraph 6.2 b. of Annex B to the RFP.

38. As noted above, Argair submitted that the Company X off-site experience had been recognized in a prior similar solicitation. However, this claim is not relevant to the Tribunal’s analysis in the present case, as it is extraneous to the procurement in issue. As noted in Winnipeg Audio-Visual Services Inc., ¹⁸ the Tribunal will not take into consideration allegations concerning the contracting entities actions with respect to previous procurements, as they are not the subject of the complaint.

39. In this case, it is not contested that, at all relevant times during the candidate’s Company X off-site experience, Argair’s proposed candidate acted at the request of, and under direction of, the DND EMT. ¹⁹ For the reasons outlined above, it is the Tribunal’s view that this is sufficient to render the resulting experience “with” the EMT.

40. Turning to the second point, given that the RFP at issue was issued on September 15, 2009, only work performed after September 15, 2004, could qualify toward fulfilment of the mandatory requirement for 12 months of experience “within the last five years”.

41. PWGSC’s officer responsible for the solicitation during the complaint proceedings alleged that he had personal knowledge of Company X’s contract under which Argair’s candidate claimed experience and that the contract had come to an end prior to the commencement of the qualifying period (i.e. prior to September 2004). Accordingly, PWGSC submitted that the Company X experience fell outside the five-year window prescribed by paragraph 6.2 b. of Annex B to the RFP, with any employment with Company X after that date being irrelevant.

42. In its comments on the GIR, Argair countered that the particular contract to which PWGSC was referring continued until at least the fourth quarter of 2004 and that the résumé of the proposed candidate, which formed part of its bid proposal, referred to other qualifying work with an EMT that ran to June 2005. In this regard, the Tribunal notes that the GIR focused only on Company X’s contract and that PWGSC did not contest the candidate’s claim of other relevant experience having been acquired with Company X from when PWGSC claimed the contract ended until June 2005.

43. The candidate’s entire Company X off-site experience, as presented in Argair’s proposal, represents a period of 10 months (i.e. September 2004 to June 2005) of potentially qualifying work. This is in addition to the five months of Argair on-site experience for which it was credited. There is no evidence on the record to suggest, however, that work claimed to have been performed during this period was properly evaluated in determining whether the substantive and temporal elements of the experience requirement in paragraph 6.2 b. of Annex B to the RFP had in fact been satisfied. Indeed, the Tribunal considers PWGSC’s failure to have done so to be a logical consequence of its misinterpretation of the scope of the requirement as presented in the solicitation document.

44. The Tribunal, in Northern Lights Aerobic Team, Inc., ²⁰ indicated that “[it] will interfere only with an evaluation that is unreasonable”, with the Tribunal substituting its judgment for that of the evaluators “. . . only when the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way” [emphasis added].

45. In the present case, having wrongly interpreted the scope of the mandatory requirement in paragraph 6.2 b. of Annex B to the RFP and, in the process, having based its evaluation on undisclosed criteria, possibly resulting in the ignoring of vital information provided in Argair’s bid, the Tribunal does not consider PWGSC’s evaluation of Argair’s bid to have been “reasonable”.

46. In light of the foregoing, the Tribunal determines that Argair’s complaint is valid.

Remedy and Costs

47. Having found the complaint to be valid, the Tribunal must now recommend the appropriate remedy.

48. In this regard, subsection 30.15(3) of the CITT Act provides as follows:

(3) The Tribunal shall, in recommending an appropriate remedy under subsection (2), consider all the circumstances relevant to the procurement of the goods or services to which the designated contract relates, including

(a) the seriousness of any deficiency in the procurement process found by the Tribunal;

(b) the degree to which the complainant and all other interested parties were prejudiced;

(c) the degree to which the integrity and efficiency of the competitive procurement system was prejudiced;

(d) whether the parties acted in good faith; and

(e) the extent to which the contract was performed.

49. The Tribunal considers that not evaluating a proposal in accordance with the criteria provided in the RFP represents a serious deficiency in the procurement process. Bidders need to rely on the prescribed evaluation criteria to formulate their proposals. If they are not being informed of all the “rules of the game”, bidders are unable to optimize their efforts to be the successful bidder. The Tribunal believes that such a serious deficiency in evaluation causes prejudice to the integrity and efficiency of the competitive procurement system. However, the Tribunal finds no evidence to suggest that the technical evaluators were not acting in good faith when they conducted their evaluations. In addition, the Tribunal notes that the contract has been awarded and that the candidate of the winning bidder has been performing the work for more than three months.

50. It is not clear to what extent Argair and the other bidders are likely to have been prejudiced. The evidence does not indicate that the deficiency in the evaluation of the personnel criteria was confined to Argair’s bid or if it applied to all bids. If Argair’s bid had been evaluated correctly, Argair’s proposed candidate might have been found to have satisfied paragraph 6.2 b. of Annex B to the RFP and Argair might have been the successful bidder. The scores of other bidders might also have been different if the correct evaluation criteria had been applied. That being said, on the basis of the evidence before it, the Tribunal is not in a position to conclude that Argair would have been awarded the contract had its proposal been properly evaluated.

51. However, it is clear that Argair’s proposal did not receive the evaluation that would have been expected from a reasonable interpretation of the RFP. If Argair had known clearly how the criteria would be applied, it would presumably have proposed a different candidate, structured its proposal differently, or decided not to bid at all.

52. In light of the seriousness of the breach of evaluation procedures, the Tribunal considers that an amount equal to 100 percent of the reasonable bid preparation costs incurred by Argair is an appropriate remedy in the circumstances.

53. In addition, the Tribunal recommends that PWGSC not exercise any option periods and allow the current contract to expire after the initial one-year period.

54. In accordance with the Tribunal’s Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline), the Tribunal awards Argair its reasonable costs incurred in preparing and proceeding with the complaint.

55. In determining the level of costs to be awarded, the Tribunal considers that it must take into account PWGSC’s conduct and the information provided to Argair prior to the submission of the GIR. Based on the evidence in the file, the Tribunal considers that the information provided to Argair in PWGSC’s contract award letter of November 5, 2009, and the subsequent e-mail exchange conveyed different information from that which was subsequently provided in the GIR. The Tribunal considers that Argair’s complaint was based in part upon PWGSC’s claim that the requested debriefing could be cancelled because PWGSC did “. . . not have any further information that [could] be provided, beyond what [had] already been provided.” The Tribunal considers it reasonable to assume that, had the information contained in the GIR been provided to Argair during the debriefing, the complaint would have had a different focus.

56. 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 involved services of a moderately undefined nature, such as maintenance or support, on an as-required basis. The complexity of the complaint was low, in that the issue was an evaluation based on a simple pass-or-fail list of easily measurable features. Finally, the complexity of the complaint proceedings was medium because, although there were no interveners and no public hearing, which allowed the minimum legislated time frame for the complaint proceedings to be respected, the Tribunal considers that PWGSC’s actions are responsible for Argair having to expend additional efforts beyond what would have been reasonably required if the new information in the GIR had been provided to Argair in advance of its complaint. Accordingly, the Tribunal considers this to be a case of overall medium-level complexity, as referred to in Appendix A of the Guideline (Level 2). The Tribunal reserves jurisdiction to establish the final amount of the award.

DETERMINATION OF THE TRIBUNAL

57. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is valid.

58. Pursuant to subsections 30.15(2) and (3) of the CITT Act, the Tribunal recommends that PWGSC not exercise the option to extend the contract and allow it to expire after the initial one-year period.

59. Pursuant to subsection 30.15(4) of the CITT Act, the Tribunal awards Argair its reasonable costs incurred in preparing its proposal for the subject solicitation. Argair shall file with the Tribunal, within 40 days of the date of this determination, a submission on the issue of bid preparation costs. PWGSC will then have 7 working days after the receipt of Argair’s submission to file a response. Argair will then have 5 working days after the receipt of PWGSC’s reply submission to file additional comments.

60. Pursuant to section 30.16 of the CITT Act, the Tribunal awards Argair its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by PWGSC. In accordance with the Guideline, the Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 2, and its preliminary indication of the amount of the cost award is $2,400. 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 . According to PWGSC’s correspondence filed with the complaint, on November 5, 2009, PWGSC informed Argair that the contract had already been awarded and, consequently, the Tribunal did not issue the requested order.

³ . S.O.R./93-602 [Regulations].

⁴ . RFP at 2.

⁵ . GIR, exhibit 2 at 19.

⁶ . Complaint, PWGSC’s November 5, 2009, letter.

⁷ . Complaint, PWGSC’s November 12, 2009, e-mail.

⁸ . The Tribunal notes that Argair did not specify any particular company, or group of companies, for whom this RFP was allegedly designed.

⁹ . Comments on the GIR, para. 9.

¹⁰ . Comments on the GIR, para. 9.

¹¹ . .

¹² . Confidential GIR, exhibit 7 at 2-3.

¹³ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT]. According to the SA, the procured services are classified under Federal Supply Classification service category R114 “Logistics Support Services”. In accordance with Section B of Annex 1001.1b-2 of the 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], those services are not covered with respect to “transportation and defence”. As the procurement is on behalf of DND, this procurement is not covered under NAFTA. Annex 4 of the Agreement on Government Procurement, 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP], provides a list of the services that are offered for coverage. “Logistics Support Services” are not included; therefore, the procurement is not covered by the AGP. In accordance with Section B of Annex Kbis-01.1-4 of Chapter Kbis of the 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], services under category R114 are not covered with respect to “transportation and defence”; hence, this procurement is not covered under the CCFTA.

¹⁴ . GIR at 2, para. 5.

¹⁵ . As already indicated, PWGSC’s rejection letter denied Argair’s candidate credit for the off-site experience because “the experience was not in NDHQ”, even though it acknowledged in the GIR that the services in respect of which experience was claimed “were at the direction and under the management of the members of the responsible EMT”, whereas Argair countered that the phrase “in NDHQ” should be taken to mean “that the services be related to NDHQ equipment management”.

¹⁶ . Re Complaint Filed by PSC The Public Sector Company Limited (26 April 2007), PR-2007-006 (CITT).

¹⁷ . Confidential GIR at 3.

¹⁸ . Re Complaint Filed by Winnipeg Audio-Visual Services Inc. (27 May 2004), PR-2004-011 (CITT).

¹⁹ . GIR, exhibit 7 at 3.

²⁰ . Re Complaint Filed by Northern Lights Aerobic Team, Inc. (7 September 2005), PR-2005-004 (CITT).