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Procurement
Determinations
THE ACCESS INFORMATION AGENCY INC.
v.
DEPARTMENT OF TRANSPORT
File No. PR-2006-031
Determination issued
Friday, March 16, 2007
Reasons issued
Tuesday, March 20, 2007
TABLE OF CONTENTS
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IN THE MATTER OF a complaint filed by The Access Information Agency 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.
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BETWEEN |
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THE ACCESS INFORMATION AGENCY INC. |
Complainant |
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AND |
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THE DEPARTMENT OF TRANSPORT |
Government Institution |
DETERMINATION OF THE TRIBUNAL
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, as a remedy, that the Department of Transport re-examine the proposal submitted by The Access Information Agency Inc. in light of the broader criterion of the English version of the Request for Proposal, worded as “proposed resources”, which means that, in evaluating the resources proposed by The Access Information Agency Inc., the Department of Transport must disregard any employer-employee relationship between The Access Information Agency Inc. and the human resources that it proposed. The Canadian International Trade Tribunal further recommends that the Department of Transport fulfil the requirement to disclose information regarding the degree of detail of the explanations provided to The Access Information Agency Inc. concerning its proposal and the relative characteristics and advantages of the winning bids.
Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards The Access Information Agency Inc. its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by the Department of Transport. 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.
Serge Fréchette
Serge Fréchette
Presiding Member
Susanne Grimes
Susanne Grimes
Acting Secretary
The statement of reasons will follow at a later date.
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Tribunal Member: |
Serge Fréchette, Presiding Member |
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Director: |
Marie-France Dagenais |
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Senior Investigator: |
Josée St-Amand |
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Counsel for the Tribunal: |
Eric Wildhaber |
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Dominique Laporte |
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Complainant: |
The Access Information Agency Inc. |
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Counsel for the Complainant: |
Thomas Dastous |
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Intervener: |
Irena Lang Consulting |
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Government Institution: |
Department of Transport |
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Counsel for the Government Institution: |
Marie Crowley |
Please address all communications to:
The Secretary
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
15th Floor
Ottawa, Ontario
K1A 0G7
Telephone: 613-993-3595
Fax: 613-990-2439
E-mail: secretary@citt-tcce.gc.ca
STATEMENT OF REASONS
COMPLAINT
1. On November 1, 2006, The Access Information Agency Inc. (AIA) 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 concerning a procurement (Solicitation No. T8080-06-0001) by the Department of Transport (Transport Canada) for the provision of access to information and privacy services.
2. AIA alleged that Transport Canada improperly evaluated its bid in considering new scoring factors and in providing unspecific and incomplete explanations in its evaluation. AIA further alleged that Transport Canada did not provide it with the relative characteristics and advantages of the winning bids. As a remedy, it asked the Tribunal to recommend that Transport Canada cancel the standing offer awarded to the two winning bidders, review AIA’s score and recognize AIA as a qualified bidder. AIA also requested that it be awarded its costs incurred in preparing the bid, and in preparing and proceeding with the complaint, as well as compensation for having lost the opportunity to participate in the procurement and for lost profits because it was deprived of the standing offer in question.
3. On November 9, 2006, the Tribunal informed the parties that it had accepted the complaint, 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. 2 On that same date, pursuant to subsection 30.13(3) of the CITT Act, the Tribunal also decided to issue a postponement of award order in respect of subsequent orders that might be issued within the scope of Transport Canada’s standing offer.
4. On December 4, 2006, Transport Canada filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules. 3 On December 15, 2006, AIA submitted its comments on the GIR. The submission included a request for Transport Canada to produce certain documents. On December 20, 2006, the Tribunal asked Transport Canada to respond to this request by December 29, 2006. On December 22, 2006, Transport Canada objected to providing the documents requested by AIA. In a letter received on that same date, Transport Canada asked the Tribunal, pursuant to subsection 30.13(4) of the CITT Act, to rescind the order of November 9, 2006. On January 2, 2007, AIA reasserted the validity of its request of December 15, 2006, to have certain documents produced. On January 3, 2007, AIA filed its submission in which it objected to Transport Canada’s request to have the order of November 9, 2006, rescinded. On January 5, 2007, the Tribunal issued an order for Transport Canada to file with the Tribunal, by January 10, 2007, certain information and/or documentation relating to Solicitation No. T8080-06-0001. On January 5, 2007, the Tribunal asked AIA and Transport Canada to file submissions regarding the Tribunal’s jurisdiction to rescind the order of November 9, 2006. On January 9, 2007, AIA informed the Tribunal that its submission regarding the Tribunal’s jurisdiction to rescind the order of November 9, 2006, was included in its correspondence of January 3, 2007. The Tribunal authorized Transport Canada to file its submission one day late, i.e. on January 10, 2007. On that date, Transport Canada filed a submission stating that the Tribunal had jurisdiction to rescind the order of November 9, 2006. On that same date, Transport Canada also sent the Tribunal the documentation requested in the order of January 5, 2007. On January 12, 2007, the Tribunal received AIA’s submission concerning Transport Canada’s submission as to the Tribunal’s jurisdiction to rescind the order of November 9, 2006. On January 16, 2007, AIA filed additional comments regarding the documentation filed by Transport Canada in response to the order of January 5, 2007. Finally, on January 18, 2007, the Tribunal issued an order rescinding the order of November 9, 2006.
5. Irena Lang Consulting did not file any documentation in respect of this matter. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal determined that a hearing was not required and, pursuant to rule 25(c) of the Rules, disposed of the complaint on the basis of the written information on the record.
PROCUREMENT PROCESS
6. The Request for Proposal (RFP) was posted on MERX 4 on June 8, 2006. The closing date for the submission of proposals was July 19, 2006.
7. The purpose of the RFP was to establish a two-year standing offer, with up to five companies, to provide consulting services to Transport Canada in the access to information and privacy field. The total anticipated level of expenditures for these services was estimated at $300,000, excluding the Goods and Services Tax/Harmonized Sales Tax (GST/HST), for the period of the standing offer. The RFP also provided a one-year option. The anticipated level of expenditures of an additional year was estimated at $150,000, excluding GST/HST.
8. Seven proposals were received and evaluated by a committee of three Transport Canada officials.
9. On September 14, 2006, Transport Canada informed AIA of the names of the two bidders selected to be awarded the standing offer. On September 15, 2006, in an e-mail to Transport Canada, AIA requested the results of the evaluation of its proposal. On September 19, 2006, Transport Canada sent AIA its results, but AIA claimed that it did not receive them. Transport Canada therefore sent them again on October 11, 2006. On October 16, 2006, AIA submitted a first objection to Transport Canada requesting a review of the evaluation of its proposal because, in its view, the scoring system had taken into consideration factors that were not described in the RFP. On October 19, 2006, AIA submitted a second objection to Transport Canada complaining that the latter did not provide satisfactory explanations concerning the relative characteristics and advantages of the winning bids. AIA also complained that Transport Canada only provided it with incomplete explanations as to the deficiencies of its own proposal. Transport Canada replied to AIA on October 19, 2006. On October 20, 2006, AIA sent a third objection to Transport Canada, in which it said that it was not satisfied with Transport Canada’s reply of October 19, 2006, and asked whether this reply was final. On October 23, 2006, Transport Canada sent a final reply to AIA.
10. On November 1, 2006, AIA filed its complaint with the Tribunal.
TRIBUNAL’S ANALYSIS
11. 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. Moreover, at the conclusion of the inquiry, the Tribunal must determine whether the complaint is valid 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 instance, are the Agreement on Internal Trade, 5 the North American Free Trade Agreement 6 and the Agreement on Government Procurement. 7
12. AIA based its complaint on three grounds. First, the scoring system used by Transport Canada took into consideration scoring factors not described in the RFP. Second, the explanations provided by Transport Canada for not selecting its bid were not sufficiently detailed. Third, Transport Canada failed to reveal the relative characteristics and advantages of the winning bids and thus breached the provisions of the applicable trade agreements respecting the communication of sufficient explanations in this regard.
13. The Tribunal notes that, subsequent to AIA filing its complaint and to the Tribunal’s decision to conduct an inquiry, AIA submitted further grounds of complaint in its arguments. 8 The Tribunal will not examine these grounds of complaint, since it is required to limit its inquiry to the three above-mentioned allegations, the only ones for which the inquiry was commenced.
Evaluation criteria used by Transport Canada
14. Article 506(6) of the AIT and Article 1013 of NAFTA are relevant to AIA’s first ground of complaint.
15. Article 506(6) of the AIT reads as follows:
. . . 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.
16. Article 1013 of NAFTA reads as follows:
1. Where an entity provides tender documentation to suppliers, the documentation shall contain all information necessary to permit suppliers to submit responsive tenders, including information required to be published in the notice referred to in Article 1010(2), except for the information required under Article 1010(2)(h). The documentation shall also include:
. . .
(h) the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders . . . .
. . .
17. The AGP contains no provision similar to those just cited.
18. Regarding the first ground of complaint, AIA stated that the criteria set out in the RFP covered general matters and provided little or no guidance as to the methods of weighting and evaluating these criteria. AIA argued that, since five of the seven proposals received by Transport Canada did not achieve the minimum threshold of 700 points required for the technical evaluation, 9 this showed that the bidders did not have sufficient information to prepare their bids. AIA further argued that it was not reasonable to expect the bidders to understand that Transport Canada intended the meaning of the expression “proposed resources”, in the English version of the RFP, to be limited to the scope of the expression “employés proposés” (proposed employees), as contended by Transport Canada. 10 According to AIA, the concepts conveyed by these respective expressions in each language do not coincide. AIA noted that the French version of the RFP was not available to the bidders and was not posted on MERX. AIA argued that, had it been aware of this translation, AIA would have proposed a different project team in order to garner more points. In AIA’s opinion, this was not a minor error because it resulted in a misleading evaluation factor that could not be anticipated.
19. For its part, Transport Canada maintained that it applied the selection criteria set out in the RFP in evaluating the bidders in accordance with the applicable trade agreements. Transport Canada maintained that it evaluated the technical requirements of the companies based on the two criteria stated in the RFP, namely, the company’s related experience and the extent of its related experience. Transport Canada argued that, while AIA’s bid contained virtually no information about these two criteria, the members of the evaluation committee gave it the benefit of the doubt, in view of the experience of the consultants that AIA proposed and because the committee considered the AIA’s related experience to be above average and the extent of its experience to be average. Transport Canada argued that AIA’s score was however generous, considering the absence of information about the company’s experience.
20. Transport Canada maintained that the members of its evaluation committee stuck to the evaluation criteria set out in the RFP and did not penalize AIA for having proposed consultants who were not in its employ. Transport Canada added that, while the members of the evaluation committee acknowledged having considered this to be a weakness, the annotations made in the evaluation grids would not, on their own, necessarily explain the score given. In fact, Transport Canada alleged that, had the evaluation committee actually taken into account the fact that the consultants proposed by AIA were not yet in its employ, the score obtained by AIA would have been lower than the one that it did receive.
21. Transport Canada maintained that the RFP expressly stated that bidders were to submit the names of “proposed resources”, an expression which, in its view, meant “people who are in the bidder’s employ” [translation]. According to Transport Canada, besides the lack of other information about its experience, the fact that the consultants proposed by AIA were not in its employ shows that it was not a company with sufficient experience to be considered well-established in the access to information and privacy field.
22. The Tribunal notes that the RFP was initially published in English only. 11 The wording of the applicable evaluation criterion was “proposed resources”. According to the Tribunal, the interpretation that Transport Canada gave this expression in the RFP was too restrictive. Rather, the Tribunal believes that it was reasonable for AIA, in light of the ordinary meaning of the expression “proposed resources”, to propose human resources that were not yet in the company’s employ. To apply an evaluation criterion that distinguishes individuals who have an employment relationship with the bidder from those who do not is to apply a criterion not stipulated in the RFP.
23. Transport Canada used the French version of the RFP to justify the application of a criterion based on an employer-employee relationship. The Tribunal rejects this claim, since it was shown to the Tribunal’s satisfaction that the French version of the RFP was never made available to prospective bidders. 12 Accordingly, the Tribunal finds that this criterion cannot be invoked against AIA.
24. Transport Canada claimed moreover that the criterion of an employer-employee relationship did not influence the evaluation of AIA’s proposal. The Tribunal rejects this claim as well. In fact, given the annotations made on the evaluation sheet of AIA’s proposal, the Tribunal has difficulty understanding how this criterion could not have been of consequence for AIA’s proposal. In the Tribunal’s view, it is fairly natural for someone responsible for evaluating a proposal to note on the evaluation grids comments of significance to the evaluation exercise, and it seems just as natural for the note to influence the results accordingly. Conversely, in the Tribunal’s view, it is reasonable to conclude that no mention would be made of facts that were of no interest. As there is an annotation on the evaluation grid stating that the human resources proposed were not in the employ of AIA, the Tribunal is led to believe, in the absence of sufficient evidence to the contrary, that this annotation influenced the evaluation of AIA’s proposal.
25. The arguments invoked by Transport Canada as to the lack of sufficient information about AIA’s experience are of no relevance to the Tribunal’s decision with respect to the first ground of complaint. In fact, the Tribunal is of the view that the mere fact that Transport Canada used an evaluation criterion that was not stipulated in the RFP constitutes a breach of the above-mentioned requirements of the applicable trade agreements regarding the use of evaluation criteria.
26. In view of the foregoing, the Tribunal finds that the first ground of complaint is valid.
Explanations provided by Transport Canada
27. Article 1015(6)(b) of NAFTA and Article XVIII(2) of the AGP are relevant to AIA’s second and third grounds of complaint.
28. Article 1015(6)(b) of NAFTA reads as follows:
6. An entity shall:
. . .
(b) on request of a supplier whose tender was not selected for award, provide pertinent information to that supplier concerning the reasons for not selecting its tender, the relevant characteristics and advantages of the tender selected and the name of the winning supplier.
29. Article XVIII(2) of the AGP reads as follows:
2. Each entity shall, on request from a supplier of a Party, promptly provide:
. . .
(c) to an unsuccessful tenderer, pertinent information concerning the reasons why its tender was not selected and on the characteristics and relative advantages of the tender selected as well as the name of the winning tenderer.
30. The AIT contains no provision similar to those just cited.
31. Regarding its second ground of complaint, AIA argued that the explanations provided by Transport Canada concerning its proposal were incomplete and unspecific. To support its allegation, AIA stated that no breakdown was provided of the individual evaluation of each of the resources that it proposed. Moreover, no evaluation subcriterion was defined, and there was no breakdown of the points deducted from AIA’s proposal. AIA also pointed out that it received no description of the methods of weighting and evaluating the criteria in the scoring system. Furthermore, AIA noted that 6 of the 14 scoring elements received no comments. 13 AIA also argued that Transport Canada acted in bad faith when it claimed that AIA never asked why its bid was not selected. To rebut this claim, AIA referred to a document filed with its complaint, which reads: “I would therefore ask you to review the information provided and to send me detailed and complete explanations showing the details of the examination and discussion of AIA’s proposal” 14 [translation].
32. Transport Canada therefore claimed that AIA never asked it for pertinent information concerning the reasons for which its bid was not selected, since AIA only asked for the “breakdown of the results obtained” [translation]. Despite all of this, Transport Canada said that it provided AIA, along with its scores, the details of its results.
33. Transport Canada then defended itself for having breached the provisions of the applicable agreements regarding the provision of pertinent information on the pretext that AIA did not ask for the reasons why its bid had not been selected, but only for [translation] “the breakdown of the results obtained”. In this regard, Transport Canada referred to the content of the e-mail sent by AIA on September 15, 2006. 15
34. The Tribunal is of the opinion that Transport Canada’s arguments in this regard are excessively narrow. The Tribunal has difficulty understanding how Transport Canada can claim not to have received a request for information from AIA. In the Tribunal’s opinion, this claim completely disregards the content of AIA’s letter of objection, dated October 19, 2006, in which it first tells Transport Canada that it considers the information provided by Transport Canada up to that point to be incomplete and also asks that it “review the information provided and send AIA detailed and complete explanations showing the details of the examination and discussion of its proposal” [translation]. It is all the more difficult to understand, as an e-mail, dated September 15, 2006, had already been sent referring to a “breakdown of the results obtained by AIA in the evaluation of its proposal” [translation]. Even if the Tribunal could be convinced that the content of this e-mail was not specific enough for Transport Canada to regard it as a request within the meaning of the applicable provisions, the Tribunal has no doubt that the above-cited passage from the letter of objection, dated October 19, 2006, does indeed constitute such a request.
35. In its letter of October 23, 2006, in reply to AIA, Transport Canada said that it sent the details of the results obtained by the company when it provided the evaluation grid of its bid, which contained only a few annotations. It is therefore for the Tribunal to determine whether the provision of this information meets the requirements of disclosure imposed under the applicable agreements.
36. As it appears from the wording of the above-mentioned provisions, the purpose of these requirements is, inter alia, disclosure of pertinent information concerning the reasons why the bidder in question was not selected. In the present case, the evaluation grid gives little indication as to why AIA’s proposal was not selected. An objective analysis of the details revealed by this evaluation grid alone gives no inkling of all the reasons why the proposal was not selected. In the absence of a minimum of additional information, the annotations made in the evaluation grid do not provide sufficient details. Therefore, Transport Canada never acted on AIA’s specific request, dated October 19, 2006, by providing more detailed information.
37. It seems clear that it would have been entirely possible for Transport Canada to provide more details of the reasons for refusing the request. Neither the arguments nor the evidence cited in support of them reveal reasonable grounds that could justify the non-disclosure of this information. The provisions of the agreements are intended to establish a framework in which government procurement can take place in a context of transparency and efficiency. The disclosure of the reasons for not selecting a proposal is one means of applying this concept of transparency, which also assures bidders a fair and equitable system of procurement. In refusing to provide detailed information, Transport Canada breached the letter and intent of the relevant provisions of the agreements.
38. In light of the foregoing, the Tribunal finds that this second ground of complaint is valid.
Relative characteristics and advantages of the other bidders
39. Regarding the third ground of complaint, AIA alleged that Transport Canada, in not disclosing the information concerning the relative characteristics and advantages of the winning bids, did not provide sufficient explanations. As in the case of the previous ground of complaint, this allegation concerns the requirements set out in Article 1015(6)(b) of NAFTA and Article XVIII(2) of the AGP.
40. Regarding this ground of complaint, Transport Canada repeated its claim that AIA never asked Transport Canada to disclose the relative characteristics and advantages of the winning bid.
41. The Tribunal has already expressed its view on this claim, in its analysis of the second ground of complaint, and those comments on the subject apply again here. Transport Canada could not fail to be aware of the content of the letter, dated October 19, 2006, in which AIA wrote expressly the following: “I would also ask you to send me all the details concerning the relative characteristics and advantages of the bids of ANTIAN and of IRENA LANG CONSULTING” 16 [translation]. Thus, contrary to what Transport Canada claims, the Tribunal is of the view that a specific request for information was indeed made.
42. The Tribunal is also of the view that the letter of October 23, 2006, is evidence that Transport Canada knew of the existence of such a request for information, since this letter claims that the names, scores obtained and value of the standing offers awarded to the two winning bidders were the only information that could be disclosed. Thus, the communication of this information confirms the existence of a request for information in terms of the type of information sought by AIA.
43. The agreements stipulate the requirement to disclose the relative characteristics and advantages of the winning bids. In its analysis of the second ground of complaint, the Tribunal recalled the importance of the provisions of the agreements regarding the disclosure of pertinent information in giving formal recognition to the principle of the transparency of the procurement system. The Tribunal is of the opinion that the disclosure of the names, scores obtained and value of the standing offers awarded to the two winning bidders says nothing of the relative characteristics and advantages of the winning bids. It provides no information that could enable the bidder not selected to compare the characteristics and respective advantages of the proposals submitted in the context of the bid solicitation. The Tribunal is therefore of the opinion that, without disclosing confidential marketing intelligence, Transport Canada could have discussed, in a general way, the characteristics of the proposals selected which gave them an advantage over AIA’s proposal, so that AIA could understand how it might have, and how it could in the future, better meet the needs of Transport Canada specifically and of the government generally.
44. In light of the foregoing, the Tribunal is therefore of the opinion that Transport Canada also breached its requirements concerning disclosure with regard to the third ground of complaint.
REMEDY
45. In recommending a remedy, the Tribunal must, pursuant to subsection 30.15(3) of the CITT Act, 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.
46. In order to determine the remedy to be recommended in this instance, the Tribunal examined the circumstances relevant to the procurement, including those mentioned above.
47. This case concerns, inter alia, misinterpretations of the evaluation criteria set out in the RFP. The scoring method that was in place deviated from that stipulated in the RFP. According to the Tribunal, this constitutes a rather serious irregularity in the procurement process and a type of action that prejudices the integrity of the overall procurement process. The Tribunal points out that, if Transport Canada felt that the bids ought to be evaluated using, in particular, the criterion of the employment relationship, it could simply have included this criterion in the RFP so that bidders could have the opportunity to structure their proposals accordingly.
48. It is impossible to know for certain what the results of the procurement would have been had the evaluation criteria been disclosed beforehand to the bidders. For certain, the facts show that AIA was unable to meet Transport Canada’s expectations as the latter understood them and, therefore, could not submit a proposal that would receive the maximum points. According to the Tribunal, it is reasonable to think that, had it known which evaluation criteria would be applied, AIA could have modified its bid accordingly.
49. The Tribunal notes however that there is no evidence that Transport Canada acted in bad faith.
50. The Tribunal also points out that the purpose of the RFP was to establish a standing offer with up to five companies and that only two companies were qualified.
51. In view of the foregoing, the Tribunal recommends that Transport Canada re-examine AIA’s proposal in light of the broader criterion of the English version of the RFP, worded as “proposed resources”, meaning that, in evaluating the resources proposed by AIA, Transport Canada must disregard any employer-employee relationship between AIA and the human resources that it proposed.
52. The Tribunal further recommends that Transport Canada fulfil the requirement to disclose information in terms of the degree of detail of the explanations provided to AIA concerning its proposal and the relative characteristics and advantages of the winning bids.
53. The Tribunal does not award AIA any compensation for loss of profits, since it is impossible to quantify such a loss in the context of a standing offer.
Costs
54. AIA sought reimbursement of the costs relating to the complaint. Transport Canada sought reimbursement of the costs that it incurred to respond to the complaint.
55. Pursuant to section 30.16 of the CITT Act, the Tribunal awards AIA its reasonable costs incurred in preparing and proceeding with the complaint.
56. The Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline) bases the level of complexity of a complaint on three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the proceedings. The Tribunal’s preliminary indication of the level of complexity of the complaint is Level 1. The level of complexity of the procurement itself was low, since it concerned the provision of consulting resources in the access to information and privacy field. The level of complexity of the complaint was also low, since the essential facts were relatively straightforward. The level of the proceedings, however, was moderately complex, since there was one intervener, and two motions were filed. Therefore, in accordance with the Guideline, the Tribunal’s preliminary indication of the amount of the award is $1,000.
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, as a remedy, that Transport Canada re-examine AIA’s proposal in light of the broader criterion of the English version of the RFP, worded as “proposed resources”, which means that, in evaluating the resources proposed by AIA, Transport Canada must disregard any employer-employee relationship between AIA and the human resources that it proposed. The Tribunal further recommends that Transport Canada fulfil the requirement to disclose information regarding the degree of detail of the explanations provided to AIA concerning its proposal and the relative characteristics and advantages of the winning bids.
59. Pursuant to section 30.16 of the CITT Act, the Tribunal awards AIA its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by Transport Canada. 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.
1 . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].
2 . S.O.R./93-602 [Regulations].
3 . S.O.R./91-499 [Rules].
4 . Canada’s electronic tendering service.
5 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].
6 . 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].
7 . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].
8 . See AIA’s supplementary response received on January 16, 2007, inter alia, paragraphs 6, 9, 11, 20 and 26.
9 . Comments on the GIR, para. 16; GIR para. 14.
10 . In the French version of the RFP, which the Tribunal received on November 17, 2006, the expression “proposed resources” was translated various ways, including, at page 2 of Appendix A, as “ personnes proposées” (proposed persons) [emphasis added], and at items 5.1 and 14.1 of Appendix B and Appendix C, as “ employés proposés” [emphasis added].
11 . Complaint, Tab I.
12 . Complaint, Tab I.
13 . Complaint, Tab C at 3, 4.
14 . Complaint, Tab D at 5.
15 . Complaint, Tab C at 1.
16 . Complaint, Tab D at 5.
