Procurement

---

---

TABLE OF CONTENTS

• DETERMINATION OF THE TRIBUNAL
• STATEMENT OF REASONS
• • PROCUREMENT PROCESS
  • PRELIMINARY MATTERS
  • • Ground 1—Improper Evaluation Criteria
    • Ground 2—Late Extension of Bid Period
    • Ground 3—Alleged Bias by One of the Evaluators
    • Ground 4—Parking Aircraft
    • Ground 5—Incorrect Evaluation by PWGSC, Requirement 1
    • Ground 6—Incorrect Evaluation by PWGSC, Requirement 2
    • Ground 7—Delay of ATI Submission Responses
  • TRIBUNAL’S ANALYSIS
  • • Requirement 1
    • Requirement 2
    • Remedy
    • Costs
  • DETERMINATION OF THE TRIBUNAL

Download full document in MS Word format, compressed - zip (127K) through FTP

Download full document in Adobe Acrobat format (125K) through FTP

Download full document in MS Word format, compressed - zip (127K) through HTTP

Download full document in Adobe Acrobat format (125K) through HTTP

---

IN THE MATTER OF a complaint filed by Almon Equipment Limited 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
ALMON EQUIPMENT 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 in part.

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 compensate Almon Equipment Limited for its lost opportunity by an amount equal to one third of the profit that it would reasonably have earned, had it been the successful bidder regarding Requirement 2 of the Statement of Work for Solicitation No. W0125-088713/B.

The Canadian International Trade Tribunal recommends that Almon Equipment Limited and the Department of Public Works and Government Services negotiate the amount of compensation and, within 30 days of the date of this determination, report back to the Canadian International Trade Tribunal on the outcome.

Should the parties be unable to agree on the amount of compensation, Almon Equipment Limited shall file with the Canadian International Trade Tribunal, within 40 days of the date of this determination, a submission on the issue of compensation. The Department of Public Works and Government Services will then have 7 working days after the receipt of Almon Equipment Limited’s submission to file a response. Almon Equipment Limited will then have 5 working days after the receipt of the Department of Public Works and Government Services’ reply submission to file any additional comments.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Almon Equipment 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. The Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 3, and its preliminary indication of the amount of the cost award is $4,100. 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 amounts of compensation and of the cost award.

Hélène Nadeau
Hélène Nadeau
Secretary

Place of Hearing:	Ottawa, Ontario
Date of Hearing:	April 22, 2009
Tribunal Member:	Ellen Fry, Presiding Member
Director:	Randolph W. Heggart
Investigation Manager:	Michael W. Morden
Investigator:	Josée B. Leblanc
Counsel for the Tribunal:	Eric Wildhaber
Complainant:	Almon Equipment Limited
Counsel for the Complainant:	Michel W. Drapeau
	Zorica Guzina
Interveners:	Petro Air Services Inc.
	Inland Technologies Canada Inc.
Counsel for Inland Technologies Canada Inc.:	George Caines
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Susan D. Clarke
	Karina Fauteux
	Ian McLeod
	Catherine Lawrence
	Randall Harris

Please address all communications to:

1. On February 9, 2009, Almon Equipment Limited (Almon) 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. W0125-088713/B, a procurement by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for two requirements regarding aircraft ground icing and glycol recovery programs at Canadian Forces Base (CFB) Trenton. Requirement 1 was for the removal of snow and ice from aircraft to prepare them for flight, and Requirement 2 was for the reclamation and disposal of glycol and glycol-contaminated materials resulting from the snow and ice removal.

2. Almon submitted that two of its competitors, Petro Air Services Inc. (Petro) and Inland Technologies Canada Inc. (Inland), were improperly awarded contracts for the required services for Requirements 1 and 2 respectively. Almon submitted that it had been unduly penalized in the scoring process by arbitrary and unreasonable deductions of points and that the procedures that were used in the evaluation of proposals contradicted the evaluation process prescribed by the Request for Proposal (RFP). Almon submitted that the evaluation criteria, as presented in the RFP, were flawed and that, during the solicitation period, PWGSC demonstrated bias against Almon by improperly granting a time extension for the submission of bids. Almon also alleged that preferential treatment was given to another bidder throughout the contract award process and that a member of the technical evaluation team displayed possible antagonism toward Almon. Almon alleged that it had submitted Access to Information (ATI) requests to both PWGSC and DND in an attempt to gather information regarding the solicitation and that both departments purposely delayed the release of the information to inhibit Almon’s right to know the circumstances surrounding the award of the contracts to Petro and Inland.

3. As a remedy, Almon requested that the proposals be re-evaluated, that the contracts awarded to Petro and Inland be terminated at the end of the 2008-2009 season and awarded to Almon for the following two years and that Almon be compensated for not being awarded the contracts for the 2008-2009 season. In the alternative, Almon requested that the requirements be re-tendered and that it be compensated for the profits that it lost in not being awarded the contracts for the 2008-2009 season. Regarding costs, Almon requested that it be compensated for its reasonable costs incurred in preparing and submitting its proposal, as well as its reasonable costs incurred in bringing its complaint to the Tribunal. Finally, Almon requested that the Tribunal make a declaration about the lack of transparency by both PWGSC and DND and, in this instance, how it negatively affected and interfered with Almon’s right to present a complaint after having had a complete disclosure of all records.

4. On February 18, 2009, the Tribunal informed the parties that the complaint had been accepted for inquiry in part. Certain elements of the two grounds of complaint relating to the evaluation of Almon’s proposal 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 with respect to the evaluation of certain criteria and were accepted for inquiry. The Tribunal granted intervener status to Petro on February 26, 2009, and to Inland on March 11, 2009. On March 16, 2009, PWGSC submitted the Government Institution Report (GIR). On March 26 and 27, 2009, Petro and Almon filed their respective comments on the GIR. On April 7 and 16, 2009, PWGSC and Almon filed their respective additional documents in advance of the public hearing.

5. On March 20, 2009, the Tribunal advised the parties that it would hold a public hearing with respect to the grounds of complaint accepted for inquiry. The Tribunal held this hearing on April 22, 2009. At the hearing, Almon called the PWGSC procurement officer as a witness. PWGSC called the three technical evaluators from DND as witnesses.

PROCUREMENT PROCESS

6. The RFP was made available through MERX ³ on July 8, 2008. The overall requirement was split into two distinct requirements: Requirement 1—an aircraft ground icing program, which included de-snowing, de-icing and anti-icing aircraft and storing associated fluids; and Requirement 2—the collection, recycling and disposal of glycol, glycol-contaminated snow and water and all other glycol-contaminated materials resulting from Requirement 1. Bidders could bid on either or both of the requirements. The date for the receipt of proposals was August 14, 2008, and PWGSC received five compliant bids: two relating to Requirement 1 (Almon and Petro) and three relating to Requirement 2 (Almon, Inland and another company).

7. On September 4, 2008, PWGSC awarded the contract for Requirement 1 to Petro and the contract for Requirement 2 to Inland. In a letter dated September 9, 2008, PWGSC advised Almon that, although both its proposals were compliant, it had not been awarded either contract. At the same time, PWGSC included the evaluators’ consensus technical scoring sheets, which set out Almon’s technical scores with respect to each of the point-rated criteria in the RFP, as well as the reasons for which the evaluators awarded a particular score regarding a given criterion. On September 22, 2008, Almon attended a debriefing session with PWGSC and DND.

8. On October 6, 2008, Almon wrote to PWGSC, providing detailed objections to the manner in which the evaluation process had been managed. PWGSC and Almon exchanged telephone calls on October 10, 16, 17 and 21, 2008, during which PWGSC advised Almon that its objections were being reviewed and that Almon would be receiving a response. On January 28, 2009, PWGSC wrote a letter to Almon, responding to its objections.

9. Almon filed its complaint with the Tribunal on February 6, 2009.

PRELIMINARY MATTERS

10. In its complaint, Almon identified seven grounds of complaint, five of which were not accepted for inquiry by the Tribunal, and two of which were accepted in part.

Ground 1—Improper Evaluation Criteria

11. Almon argued that the RFP improperly mixed mandatory and rated criteria and had not properly defined the term “project staff”. This ground of complaint was not accepted for inquiry by the Tribunal.

12. 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. The Tribunal found that Almon had to have become aware of the contents of the RFP, at the latest, on the date on which it submitted its proposal, i.e. August 14, 2008. ⁴ Therefore, pursuant to section 6 of the Regulations, Almon had to file its complaint with the Tribunal, or object to PWGSC, within 10 working days of that date, i.e. by August 28, 2008. As the complaint was not filed until February 9, 2009, and the evidence did not indicate that Almon had objected to PWGSC prior to that date, the Tribunal found that this ground of complaint was filed outside of the applicable time limits.

Ground 2—Late Extension of Bid Period

15. Almon alleged that, in granting the second of two extensions of the due date for the submission of bids, PWGSC breached RFP provisions by allowing the change significantly later than the date by which such changes should have been allowed. Almon noted that the RFP contained a clause requiring all enquiries to have been made to PWGSC seven calendar days prior to the close of the solicitation. Almon submitted that the second extension, which, it noted, almost doubled the time available for bidders to prepare their proposals, was issued on the Friday before the Monday on which the bid period was to have closed. Almon also alleged that, through this extension, Petro was provided with preferential support and advice in the bidding process. Neither allegation of this ground of complaint was accepted for inquiry by the Tribunal.

16. According to the complaint, Almon requested an explanation from PWGSC regarding the second extension, which PWGSC provided on July 25, 2008. If, at that time, Almon was not satisfied with PWGSC’s explanation, it had 10 working days from that date, i.e. until August 11, 2008, to file its complaint with the Tribunal. As the complaint was not filed until February 9, 2009, and the evidence did not indicate that Almon had objected to PWGSC’s explanation prior to that date, the Tribunal found that this ground of complaint was filed outside of the applicable time limit.

17. With respect to the allegation in this ground of complaint that Petro was afforded preferential treatment, paragraph 7(1)(c) 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, ⁵ Chapter Five of the Agreement on Internal Trade, ⁶ the Agreement on Government Procurement ⁷ or Chapter Kbis of the Canada-Chile Free Trade Agreement ⁸ applies. ⁹ The Tribunal considers that the information in the complaint does not provide reasonable substantiation of this allegation and, hence, does not disclose a reasonable indication that, in this respect, the procurement was not carried out in accordance with the AIT.

Ground 3—Alleged Bias by One of the Evaluators

18. Almon alleged that comments made by one of the evaluators during the debriefing held on September 22, 2008, indicated that he may have brought a predetermined opinion against Almon to the procurement process.

19. The Tribunal did not consider that the information in the complaint provided reasonable substantiation of this allegation. Accordingly, the Tribunal found that the complaint does not disclose a reasonable indication that the procurement was not carried out in accordance with the AIT, as contemplated by paragraph 7(1)(c) of the Regulations, and did not accept this ground of complaint for inquiry.

Ground 4—Parking Aircraft

20. Almon alleged that certain comments made by the lead technical evaluator at the debriefing did not reflect a complete and proper interpretation of Almon’s proposal. Given that this ground was essentially substantiation submitted in support of Almon’s allegation of improper evaluation of the de-snowing provisions of Almon’s proposal, the Tribunal considered that it was not a separate ground of complaint.

Ground 5—Incorrect Evaluation by PWGSC, Requirement 1

21. Almon alleged that sections (d), (e), (f), (h), (i) and (j) of rated criterion 1.1.2 relating to Requirement 1 were incorrectly evaluated by PWGSC. The Tribunal determined that only Almon’s allegations relating to sections (d), (e), (f) and (i) provided a reasonable indication that PWGSC had not conducted the procurement in accordance with the AIT.

22. Almon’s allegation regarding section (h) of rated criterion 1.1.2 relating to Requirement 1 was that the RFP had been written with a view to exclude certain de-icing experience and that the evaluators had improperly considered particular airports as “major” airports, which would have counted in the rated criteria evaluation more highly than smaller, less work-intensive airports.

23. Almon’s allegation regarding section (j) of rated criterion 1.1.2 relating to Requirement 1, which measured the experience of the proposed resources, was that the RFP penalized it in relation to this rated criterion as a result of team experience information that it had to provide regarding a separate mandatory criterion. Almon also alleged that the evaluators did not take into account all relevant personnel when determining the overall experience of the Almon team.

24. As the Tribunal noted above regarding ground 1, Almon had to be aware of the contents of the RFP, including what de-icing and staff experience would be considered, on August 14, 2008, at the latest. As the complaint was not filed until February 9, 2009, and the evidence did not indicate that Almon had objected to PWGSC prior to that date about either of these experience criteria, the Tribunal found that the allegations in this ground of complaint were filed outside of the applicable time limits.

25. Regarding the allegations concerning the manner in which the evaluators (1) determined what a major airport was and (2) evaluated the level of experience, the Tribunal considers that the information in the complaint does not disclose a reasonable indication that the procurement was not carried out in accordance with the AIT.

26. The allegations regarding sections (h) and (j) of rated criterion 1.1.2 relating to Requirement 1 were therefore not accepted for inquiry, as they were not filed on time in relation to the content of the RFP, and the complaint did not disclose a reasonable indication that PWGSC had not conducted the procurement in accordance with the applicable trade agreements.

Ground 6—Incorrect Evaluation by PWGSC, Requirement 2

27. Almon alleged that sections (a), (e) and (f) of rated criterion 1.1.2 relating to Requirement 2 had been incorrectly evaluated by PWGSC. The Tribunal determined that only those allegations relating to sections (a) and (e) provided a reasonable indication that PWGSC had not conducted the procurement in accordance with the AIT.

28. Almon’s allegation regarding section (f) of rated criterion 1.1.2 relating to Requirement 2 was similar to its allegation regarding section (j) of rated criterion 1.1.2 relating to Requirement 1, in that Almon claimed that the structure of the RFP caused it to lose points regarding the experience of its proposed resources and that its proposed resources’ experience had not been properly evaluated. As indicated above regarding ground 5(j), the Tribunal considers that, as the complaint indicated that Almon had not objected to PWGSC about this particular element of the RFP within the 10 working days provided for in subsection 6(2) of the Regulations, it was filed outside of the applicable time limits.

29. With respect to the manner in which the evaluators evaluated this particular element of Almon’s proposal, the complaint did not disclose a reasonable indication that the procurement had not been carried out in accordance with the AIT.

Ground 7—Delay of ATI Submission Responses

30. Almon alleged that ATI submission responses were purposely delayed by DND and PWGSC. The Tribunal’s jurisdiction is limited to complaints by potential suppliers concerning aspects of the procurement process. ATI requests are not part of the procurement process and, therefore, the Tribunal does not have jurisdiction to inquire into a ground of complaint relating to ATI requests. Consequently, this ground of complaint was not accepted for inquiry.

TRIBUNAL’S ANALYSIS

31. 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. Section 11 of the Regulations stipulates that, when the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement was conducted in accordance with the requirements set out in whichever of the trade agreements apply, which, in this case, as indicated above, is the AIT.

32. 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.”

33. The Tribunal limited its inquiry to the allegations that PWGSC improperly evaluated the following criteria:

1.1.2 Point Rated Technical Criteria - Requirement 1

. . . 

d) Understanding of the requirements of the de-snowing process. . . . 

e) Understanding the requirements of the De-Icing process and the proper application of Aircraft De-Icing Fluids (ADFs). . . . 

f) Understanding the requirements of the Anti-Icing process and the proper application of Aircraft Anti-Icing Fluids (AAFs). . . . 

. . . 

i) Demonstrated approach in meeting operational start dates including the identification of equipment and resources to be applied at the various stages and over the length of the Contract, including back-up resources and contingency planning. . . . 

. . . 

1.1.2 Point Rated Technical Criteria - Requirement 2

a) Understanding of the requirements of the Statement of Work - Requirement 2 and has demonstrated a clear understanding of the objectives of the project. . . . 

. . . 

e) Demonstrated approach in meeting operational start dates including the identification of equipment and resources to be applied at the various stages and over the length of the Contract, including back-up resources and contingency planning. . . . 

34. The Tribunal does not generally substitute its judgment for that of the evaluators, unless the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a proposal, 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. ¹⁰

35. To inquire into these grounds of complaint, the Tribunal must first determine the reasons for which the evaluators awarded Almon the scores that they did for the criterion in question. There are several potential sources of evidence on the record, including the following:

36. In a number of instances, the letter of January 28, 2009, the GIR and the technical evaluators’ testimony provide more reasons for the point deductions than are presented in the consensus scoring sheets.

37. All three evaluators testified that the comments on the consensus scoring sheets were important factors taken into account in determining their scoring. ¹³

38. Given this evidence, and the evidence that the comments on the consensus scoring sheets were written during the evaluation process, the Tribunal accepts the comments on the consensus scoring sheets as reliable evidence of the key points taken into account in scoring these criteria. What the Tribunal must assess is what weight to give the evidence concerning the factors that the evaluators allegedly took into account over and above the comments found on the consensus scoring sheets.

39. In this regard, all three evaluators testified that the comments on the consensus scoring sheets were not a complete list of the important factors taken into account in determining their scoring. When asked why some of the important factors were not listed on the consensus scoring sheets, they all testified that there was not enough room in the column on the form to write all the important factors. Their testimony indicated that they did not consider the possibility of simply attaching an additional sheet to show their additional comments. ¹⁴ PWGSC’s contracting officer’s testimony indicated that this approach was not due to any directions from PWGSC, as she testified that she did not give the evaluators any instruction on how to fill in the “Comments” column and that she was not asked about this by the evaluators. ¹⁵ Despite the unanimity of the testimony on this issue, the Tribunal does not view the described behaviour as credible behaviour on the part of three experienced professionals with access to advice from a PWGSC procurement specialist.

40. In considering the weight to be given to factors allegedly taken into account in scoring over and above the comments on the consensus scoring sheets, the Tribunal also considered the overall testimony of the evaluators. In the Tribunal’s view, the evaluators’ testimony indicates that they did not have clear recollections of certain aspects of the evaluation process.

41. For example, the testimony of the evaluators is inconsistent concerning the process whereby they revised their initial consensus report. One member of the evaluation team indicated that the three members were together, “in the same place”, ¹⁶ when the revised consensus scoring was agreed to, whereas another member stated that, due to other commitments at the time, he was not present at a three-way meeting, but subsequently dealt with the revised consensus scoring bilaterally with the lead technical evaluator. ¹⁷ That evaluator stated that he was “. . . pretty sure there was a [subsequent] phone call that was made and all three of us were in agreement.” ¹⁸ In addition, one evaluator did not have a clear recollection of his individual scoring process. Although he recalled that he took a full day to review the proposals, he did not recall whether, during that day, he had at any time called the lead technical evaluator to ask for any instructions or assistance. ¹⁹ Another evaluator did not recall writing his comments on sticky notes on the proposal, even though he acknowledged that the appearance of the photocopies indicated that he must have done this. ²⁰

42. Given the Tribunal’s view concerning the credibility of the evaluators’ testimony concerning the completeness of their written comments on the consensus scoring sheets and the fact that their recollection of the evaluation process was less than clear in some respects, the Tribunal does not consider that it can rely on the evaluators’ testimony that there were significant reasons for their scoring that did not appear on the consensus scoring sheets.

43. The Tribunal also notes that, in its view, although the individual scoring sheets ²¹ provide reliable evidence of the reasons for the initial (i.e. pre-consensus) scoring by the individual evaluators, they are not necessarily reliable evidence of the reasons for the consensus scoring. This is because the changes in the scores from the individual scoring sheets to the consensus scoring sheets may well reflect changes in the key reasons for scoring that occurred after the comments were written on the individual scoring sheets, as part of the consensus scoring process.

44. Accordingly, the Tribunal will consider the scoring based on the reasons for scoring indicated in the consensus scoring sheets and will not take into account any additional reasons that are indicated by other sources of evidence.

Requirement 1

(d) Understanding the requirements of the de-snowing process

45. According to the consensus scoring sheets, Almon was awarded 18 out of 20 points. The consensus scoring sheets contained the comment “no pad control input for this requirement”. ²²

46. The applicable portions of the RFP are reproduced below.

47. Section 4.2.3 relating to Requirement 1 of the Statement of Work (SOW) attached as Annex A to the RFP describes the de-snowing process as follows:

Perform Aircraft De-snowing services to 8 Wing aircraft, both military and civil. De-snowing is defined as the removal of loose snow from the aircraft’s horizontal surfaces, prior to the application of [aircraft de-icing fluids]. The de-snowing of aircraft must be completed by the use of blown ambient air. De-snowing of aircraft must be performed on all aircraft after each snowfall, during times of non de/anti-icing events, within the on-site hours defined at Section 3.4.

48. Section 3.4 relating to Requirement 1 of the SOW provides as follows:

The services will be available on-site Monday to Friday from 0600 to 1800 hours. Aircraft departures may be scheduled outside of these hours. In this event the contractor must contact the [duty watch officer] a minimum of two hours prior to the scheduled departure time to confirm whether de-icing services are required.

49. The SOW relating to Requirement 1 requires the following regarding “pad control”:

4.4 Communication and Control Requirement

4.4.1 Provide a vehicle and operator to perform the function of Pad Control. This individual will control and monitor the complete de-icing operation from a vantage point in front of the aircraft being de-iced. This individual must be sufficiently trained to utilize the VHF radio, see Section 4.4.2 below, in order to liaise with the flight crew of the aircraft being de-iced and with ATC [Air Traffic Control] for normal aerodrome and safety requirements.

4.4.2 Provide VHF radios in the de-icing/anti-icing vehicles, the Pad control vehicle and any other vehicles that require access to the controlled aerodrome surfaces.

50. In other words, Pad Control is an employee of the contractor who is essentially responsible for controlling and monitoring the de-icing operation (which occurs on the de-icing pad), including associated liaison with DND personnel.

51. The lead evaluator testified that, in his view, de-snowing should always take place where the aircraft is parked, rather than moving the aircraft to the de-icing pad (where Pad Control would be located at the time of de-icing operations). He did not indicate that it was impossible to perform de-snowing on the de-icing pad. Rather, he indicated that, in order to do so, certain things would need to be done to the aircraft to enable it to be moved safely to the de-icing pad and that de-snowing would add to the contaminant that needed to be cleaned from the de-icing pad. ²³

52. Almon’s proposal indicates that “[w]henever possible de-snowing should be done at the aircraft parking spot prior to aircraft going to the de-icing pad.” ²⁴ Thus, the only difference between the evaluators’ views and Almon’s proposal appears to be whether de-snowing must always be done where the aircraft is parked, rather than being done there “wherever possible”. The Tribunal was unable to locate any requirement in the RFP that de-snowing always be done where the aircraft is parked or any requirement that would reasonably lead to this conclusion.

53. With respect to the role of Pad Control specifically, the only reference that the Tribunal located in this part of Almon’s proposal concerns de-icing rather than de-snowing. Similarly, the Tribunal could not locate in the RFP any reference to (or limitation on) the potential role of pad control in de-snowing or any provision from which this could reasonably be inferred.

54. Accordingly, the Tribunal considers that, in deducting points based on “no pad control input for this requirement”, PWGSC did not base its evaluation on the criteria in the tender documents.

55. The Tribunal therefore finds that this ground of complaint is valid because PWGSC did not conduct the evaluation in accordance with Article 506(6) of the AIT when it evaluated that portion of Almon’s proposal with regard to section 1.1.2(d) relating to Requirement 1 contained in Part 4, “Evaluation Procedures and Basis of Selection”, of the RFP.

(e) Understanding the requirements of the de-icing process and the proper application of aircraft de-icing fluids

56. According to the consensus scoring sheets, Almon was awarded 15 out of 20 points. The consensus scoring sheets contained the following comment: “Do not understand application process, ie. clean from [tip to root]”. ²⁵

57. The applicable portions of the RFP are reproduced below.

58. Section 4.2.1 relating to Requirement 1 of the SOW provides the following regarding the de-icing process:

Perform Aircraft De-icing services to 8 Wing aircraft, both military and civil, including storage and application of Type I de-icing fluid to aircraft with a maximum tail height of seventy feet.

59. According to the testimony of the lead technical evaluator, the direction of the application process (from the front to the back, from the tip of the wing to the root of the wing, [i.e. the edge closest to the fuselage], etc.) for de-icing fluids is very important because of the concept of “representative surface”, an area specially identified by the aircraft manufacturer or the company flying the aircraft to receive the beginning of the final application of anti-icing fluid. This surface represents all the other horizontal control surfaces of the airplane and, as it is sprayed first, would be the first place that the protection provided by anti-icing fluid would fail. This surface gives a visual indication to the flight crew member that comes to inspect that surface from inside the airplane of whether the aircraft is safe to fly or not. ²⁶

60. In its complaint, Almon submitted that it had contacted the manufacturer of one of the types of aircraft in use at CFB Trenton, which advised Almon that the preferred procedure for anti-icing that particular plane model is from root to tip and not, as indicated in the consensus scoring sheets, from tip to root. ²⁷ In addition, Almon submitted that, for planes with anhedral (downward angled) wing design, conducting de-/anti-icing from root to tip means that less fluid is used and the de-/anti-icing time is reduced through gravity. Almon did not provide direct evidence to support this view.

61. Given the extensive knowledge of the lead technical evaluator regarding de-icing and the fact that his testimony is based on first-hand experience, the Tribunal accepted his evidence on this point. Furthermore, given this evidence on the importance of direction of application and “representative surface” in the de-icing process, the Tribunal considers that bidders should reasonably have known that these concepts should be included in their proposals in response to this criterion.

62. Almon’s proposal stated the following: “Aircraft type and wind direction will determine approach to aircraft.” ²⁸ In the Tribunal’s opinion, this could be intended to include a determination of de-icing direction in accordance with the particular type of aircraft, but it is not clear from the wording whether or not this is the case. Several diagrams that were included in the proposal ²⁹ and found in the anti-icing (as opposed to the de-icing) portion of the proposal purported to show “the routes that will be followed by the deicing vehicles during application of Type I Glycol to the main types of aircrafts that are deiced”, ³⁰ but gave no further explanation concerning the de-icing direction. The Tribunal also found no explanation in Almon’s proposal of the “representative surface” concept and why the direction of de-icing is important.

63. Given the importance of the “representative surface” concept and direction of application, the Tribunal does not consider that PWGSC acted unreasonably in evaluating this requirement.

64. The Tribunal therefore finds that this ground of complaint is not valid because it considers that PWGSC was not unreasonable in evaluating that portion of Almon’s proposal with regard to section 1.1.2(e) relating to Requirement 1 contained in Part 4 of the RFP.

(f) Understanding the requirements of the Anti-Icing process and the proper application of Aircraft Anti-Icing Fluids

65. According to the consensus scoring sheets, Almon was awarded 15 out of 20 points. The consensus scoring sheets contained the following comment: “Do not understand process, i.e. Protect from root to tip”. ³¹

66. The applicable portions of the RFP are reproduced below.

67. Section 4.2.2. relating to Requirement 1 of the SOW provides the following regarding the anti-icing process:

Perform Aircraft Anti-icing services to 8 Wing aircraft, both military and civil, including storage and application of Type IV anti-icing fluid to aircraft with a maximum tail height of seventy feet.

68. The lead technical evaluator testified that, although Almon had provided some diagrams in the section of its proposal dealing with anti-icing, the diagrams were missing a legend to explain what information the diagram was attempting to convey. The uncontradicted testimony of the lead evaluator indicated that, other than the diagrams, Almon’s proposal did not provide any detailed procedures regarding how the task was to be completed, the approach to be taken to the aircraft or how the contaminant would be removed from the wings. According to the lead evaluator, Almon’s proposal included a verbatim copy of section 602.11 of the Canadian Aviation Regulations, ³² which is also known as the “clean wing statement”. This did not demonstrate to the evaluation team that Almon knew how it was going to accomplish the task of clearing the ice from the wings of the aircraft and ensuring that icing did not reoccur prior to takeoff. The lead technical evaluator testified ³³ that, although a “clean wing statement” means that all the contaminant has been cleaned off the aircraft, i.e. that the aircraft has been de-snowed and de-iced, this does not equate to the aircraft being “protected”, i.e. properly anti-iced. As noted above, the lead technical evaluator stated that Almon had not included any reference to the “representative surface”, which, he indicated, was a crucial component of ground anti-icing. The lead technical evaluator also noted that other significant elements, such as the types of fluids to be used and how the operator was going to treat his truck, maintain records and conduct communications, were all missing from Almon’s proposal. ³⁴

69. Given the extensive knowledge of the lead technical evaluator regarding anti-icing, and the fact that his testimony was based on first-hand experience, the Tribunal accepted his evidence concerning the concepts of “representative surface” and “clean wing statement” and the other significant elements required in performing anti-icing. Based on his testimony, the Tribunal considers that bidders should reasonably have known that these elements should be included in their proposals in response to this criterion.

70. The Tribunal therefore finds that this ground of complaint is not valid because it considers that PWGSC was not unreasonable in evaluating that portion of Almon’s proposal with regard to section 1.1.2(f) relating to Requirement 1 contained in Part 4 of the RFP.

(i) Demonstrated approach in meeting operational start dates, including the identification of equipment and resources to be applied at the various stages and over the length of the contract, including back-up resources and contingency planning

71. According to the consensus scoring sheets, Almon was awarded 35 out of 50 points. The consensus scoring sheets contained the following comments: “Expect indoor storage”, “Minimum equipment during standby period” and “Also expect to erect large tent”. ³⁵

72. The applicable portions of the RFP are reproduced below.

73. Regarding the comments “Expect indoor storage” and “Also expect to erect large tent”, the Tribunal notes that section 5.2.2 relating to Requirement 1 of the SOW states that “[t]he contractor can expect to have no indoor or heated storage provided by DND.”

74. The relevant portion of Almon’s proposal reads as follows:

It is stated that no indoor storage will be available however, Almon will request from time to time to have access to indoor spots for maintenance and repairs. If no indoor space is available, Almon may request for space on-site to erect a temporary structure for maintenance activities. In the event that repairs are required throughout the deicing season, there will need to be an area out of the elements for mechanics to work. Drawings can be supplied of a temporary structure, but it is preferred that some space be available without installing a structure for both safety and space concerns.

Contingency Plan

To ensure that there are no launch delays Almon is putting in a number of contingency and regular maintenance plans that will guarantee that aircrafts can always be de/anti-iced.

. . . 

A backup SDI [presumably an aircraft deicer] will be on-site and put into the rotation to ensure that there are 3 working deicers available with 55 foot reaches. By having an extra deicer and enabling all 3 units to hook up to the Elliot’s Almon will be able to de/anti-ice any aircraft and that would be making sure that the Elliot conversion is done so that there is still a hose and “T” valve so that if the system on the Elliot fails we can hook it up to a side reel on any of the SDI deicers.

. . . 

Almon already has established accounts with local suppliers and understandings in place third party maintenance organizations to assist with any minor repairs that are needed throughout the deicing season (10 Acre Truck Shop, Bay Side Auto Service, etc.). ³⁶

75. Based on ordinary usage of language, Almon’s request for indoor space for maintenance and repairs is clearly not a request for “indoor or heated storage” as referred to in the RFP.

76. The lead technical evaluator testified that, due to changes in infrastructure at CFB Trenton over the next few years, there will be serious constraints on the availability of indoor space on the base generally over the period of the contract. ³⁷

77. However, the Tribunal can find no indication in the RFP that such general space constraints will apply to the work done under this contract. The RFP merely says that “indoor or heated storage” space will not be provided by DND. Consequently, in the Tribunal’s view, the expected request for indoor space for maintenance and repairs is not contrary to the requirements of the RFP, and bidders could not reasonably have been expected to infer that requests for this kind of space would be ruled out.

78. The evidence does not indicate clearly why the comment “Also expect to erect large tent” was included. However, the testimony indicates that the “large tent” is intended as a reference to the “temporary structure for maintenance activities” that Almon would request permission to erect if indoor space proved not to be available. The lead evaluator indicated that he would expect any maintenance done on the base to be performed outside, where the equipment sits. He did not indicate why this would be the expectation. The Tribunal could not locate any provision in the RFP that eliminated the possibility of a temporary maintenance structure being erected by the bidder. Bidders could not reasonably have been expected to infer this restriction from the limitation that DND would not provide indoor or heated storage space. Consequently, in the Tribunal’s view, including this possibility in the proposal was not contrary to the requirements of the RFP and the bidders could not reasonably have inferred that the possibility was not open to them.

79. Accordingly, the Tribunal considers that, in deducting points for these two potential requests, PWGSC based its evaluation on criteria not disclosed by the tender documents.

80. The Tribunal notes that, even though these two potential requests were not contrary to the RFP in themselves, they could be a basis for deducting points under this technical criterion if they had a detrimental impact on Almon’s ability to meet operational start dates. However, in the Tribunal’s view, the evidence does not indicate that this was the evaluators’ reason for deducting points under this criterion.

81. In addition, the Tribunal notes that the proposal did indicate an alternative approach that could be used in the event that DND refused these requests. The portions of Almon’s proposal reproduced above indicate that it had made arrangements for minor maintenance by service providers off the base, plus back-up arrangements to cover periods where its major equipment would be out of service. The evidence provided by PWGSC did not indicate that such arrangements were likely to prove inadequate.

82. Regarding the comment “Minimum equipment during standby period”, the applicable portions relating to Requirement 1 of the SOW are reproduced below:

3.3 The operational term for this contract will be 15 October 08 to 15 April 09. During this period, the full compliment of equipment, supplies and personnel required to perform all the work of this contract must be positioned on-site at 8 Wing. The periods of 01 October - 14 October & 16 April - 30 April will be stand-by periods during which time sufficient equipment and personnel must be available to perform the work within two hours of being called.

. . . 

4.3 Minimum Application Equipment

4.3.1 Provide four application vehicles for the de/anti-icing process: two trucks to de-ice the aircraft wings (55 reach boom) and two trucks to de-ice the aircraft tail (75 reach boom).

83. Almon addressed this requirement in Section I of its proposal, in which it states the following:

. . . For the Deicing operations Almon will primarily be using:

¬ 2 – SDI deicers – 55 foot reach

¬ 2 – Elliot G85s converted with deicing system – 85 foot reach

. . .

Almon will begin . . . mobilizing equipment on September 15^th and have at least 2 55 foot SDI deicers and an Elliot G85-converted on-site by October 1^st. . . .

From the 1^st of October to the 15^th of October all other equipment will be mobilized. This will ensure that as of October 1^st deicing equipment and manpower are available if needed for deicing. Until the weather begins to get cold at night only two (2) of the three (3) SDI trucks will have deicing and anti-icing fluid in them. The other truck will be used for training purposes until the need for deicing begins.

. . .

Demobilization will be determined by the weather but will not begin until after the contract completion date of April 30^th.

84. Based on a plain reading of the text in Almon’s proposal, it is clear that during the standby period from October 1 to October 15, Almon would have available only one of the two de-icers with a 75-foot boom, which the RFP required. Accordingly, the Tribunal does not consider that PWGSC was unreasonable in deducting points for this factor based on the criteria in the tender documents.

85. In summary, the Tribunal finds that in evaluating this criterion, two of the three key factors considered by PWGSC in deducting points were criteria undisclosed in the tender documents and that could not reasonably be inferred from the tender documents.

86. The Tribunal therefore finds that this ground of complaint is valid because PWGSC did not conduct the evaluation in accordance with Article 506(6) of the AIT when it evaluated that portion of Almon’s proposal relating to section 1.1.2(i) of Requirement 1 contained in Part 4 of the RFP.

Requirement 2

(a) Understanding of the requirements of the Statement of Work - Requirement 2 and has demonstrated a clear understanding of the objectives of the project

87. According to the consensus scoring sheets, Almon was awarded 10 out of 20 points. The consensus scoring sheets contained the comments “Expect to blend spent fluids for disposal” and “Do not understand that >4% must be removed”. ³⁸

88. The applicable portions of the SOW are reproduced below:

2.0 Objectives

8 Wing CFB Trenton, Ontario has a requirement to collect, recycle and dispose of glycol, glycol-contaminated snow and water and all other glycol-contaminated materials related to the Aircraft Ground-icing Program. . . .

. . .

3.5 The contractor must adhere to the Canadian Council of Ministers of the Environment criteria for the Protection of Aquatic Life; the acceptable glycol release concentration guideline is a maximum of 100 ppm [parts per million]. . . .

. . .

3.7 The Contractor shall not release any water into any storm water drainage system without the DWO’s [duty watch officer’s] approval and shall not release any water in to any sewer water drainage system with out the DWO’s approval.

. . .

4. Requirements/Tasks

4.1 Glycol Disposal/Recycling.

. . .

4.1.4 Seek and receive permission of STP [sewage treatment plant] staff before every transfer of glycol-contaminated materials to the STP. Any material that exceeds the concentration allowed at the STP shall be disposed of or recycled in accordance with all applicable federal, provincial and municipal laws and regulations.

4.2 Glycol Storage

4.2.1 Diluted glycol fluids may be stored in one of 5 storage tanks owned by 8 Wg/CFB Trenton. These 4 tanks are located at the west end of the flight line. The 4 horizontal tanks have capacities of 50,000 litres each with a vertical having a capacity of 91,000 litres. The vertical tank shall be used to store high concentrate only [equal to or greater than 4 percent]. Ensure that there is always sufficient reserve capacity in these tanks to permit prompt and timely glycol recovery.

4.2.2 8 Wing Trenton considers a high concentration to be greater or equal to 4%. Ensure that there is a supply of low concentrate glycol available in the horizontal tanks for feeding to the sewage treatment plant. If concentrations greater than 4% are fed into the horizontal tank, ensure that there is sufficient storage space to immediately blend the glycol into a concentration of less than 4%.

89. In its proposal, Almon’s response to Requirement 2 included the following statements:

Almon will be removing all fluid from the underground storage tank whenever possible. . . .

. . .

. . . Whenever possible Almon will dilute low concentration collected fluids to form solutions of under 4% in the tank farm to be able to feed to the Wing/CFB Trenton sewage treatment plant.

Glycol that is high concentrate will be processed either onsite or at an off-site facility. If permitted Almon would like to install a glycol recycling facility at 8 Wing CFB Trenton. Due to the complexity of glycol recycling and the expense of mobilization and demobilization, Almon would need to leave the recycling equipment on-site and likely process fluid past the contract completion date in order to make this economically viable.

. . .

. . . Almon will require power and natural gas to be run to equipment from DND.

It is expected that the maximum daily volume will be transferred each day to maintain sufficient space in the tanks for all spent fluid collected and ensure operational readiness. . . .

. . .

Any fluid that is in the neighbourhood of 4% will be diluted or reduced in concentration to get to an acceptable level for the STP to process. All fluid that can not be brought to an acceptable level for the STP will be either recycled or disposed of in accordance with all regulations. Fluid will only be t[r]ucked off site when it is convenient to do so and when there are sufficient volumes to make it economically viable. The preference is to recycle fluid rather than destruct fluid unless the concentration level is so low that it does not make economic sense to recycle the fluid.

. . .

Primarily, blending of the fluid in tank 4 will be done using the very low concentration fluid from tank 1. The goal will be to get fluid that is over 4% reduced to 4% or under as quickly as possible. It is critical that the STP utilize the maximum daily volume possible to ensure that less additional tank capacity is required.

. . .

The fluid in tank 5 (high concentration fluid) will be frequently emptied and the fluid will go through a recycling process.

. . .

At the end of the contract period, Almon will work with DND to ensure that all fluids in the tank farm at a level that the STP can process. Any high concentration fluids will either be recycled or disposed of as necessary. Depending on the weather at the end of the season these activities may have to continue into the demobilization period after April 30^th. ³⁹

90. With respect to the comment “Expect to blend spent fluids for disposal”, the Tribunal considers that the RFP clearly contemplates that some of the fluids would be blended to a concentration of less than 4 percent and then, to the extent approved by DND, transferred to the STP. Although, at the hearing, two of the technical evaluators indicated that there could be some serious limitations on the volume of fluids that could be disposed of by the STP, ⁴⁰ the Tribunal could not find any statement in the RFP that such serious limitations were likely or any indication that such serious limitations should reasonably be inferred.

91. Therefore, the Tribunal considers that Almon’s proposal is consistent with the requirements of the RFP in contemplating blending some spent fluids for disposal, while recognizing that DND approval is required. Similarly, it is consistent with the requirements of the RFP when, in referring to other disposal options, it does not address the possibility of serious limitations on the capacity of the STP. Indeed, according to section 4.2.2 relating to Requirement 2 of the SOW, the contractor is required to “[e]nsure that there is a supply of low concentrate glycol available in the horizontal tanks for feeding to the sewage treatment plant”, which appears to endorse Almon’s approach of relying on the STP as a significant means of disposal.

92. With respect to the comment “Do not understand that [greater than] 4% must be removed”, the Tribunal considers that section 4.1.4 of the SOW makes it clear that fluids with concentrations greater than those allowed at the STP must be disposed of or recycled by other means in accordance with applicable laws and regulations and that section 4.2.2 indicates that fluids with concentrations greater than 4 percent are not permitted in the horizontal tank, as such fluid must be blended immediately to lower its concentration i.e. concentrations greater than 4 percent are only permitted in the vertical storage tank.

93. Almon’s proposal indicates that high concentrate will either be processed at an on-site facility, if permitted by DND, or off-site. Although, as discussed under Requirement 1, the evaluators testified that there are serious limitations regarding indoor space on the base in general, the RFP does not indicate or provide a reasonable basis to infer that there are inherent space limitations likely to affect Almon’s proposed on-site recycling facility, except to the extent that heated or indoor storage might be required. Accordingly, Almon could not reasonably have been expected to know from the RFP that recycling fluids with concentrations greater than 4 percent on site was not a possibility.

94. Almon’s proposal also indicates that fluids not disposed of via the STP or on-site recycling would be disposed of by other means, which would appear to imply removing them from the site for disposal.

95. Accordingly, in the Tribunal’s view, the proposal does indeed indicate clearly an understanding that fluids with concentrations greater than 4 percent (to the extent they are not dealt with by other appropriate means such as on-site recycling) must be removed.

96. The Tribunal notes the technical evaluators’ expressed concerns regarding Almon’s statement that “[f]luid will only be t[r]ucked off site when it is convenient to do so and when there are sufficient volumes to make it economically viable.” However, the Tribunal cannot locate any requirement in the RFP that all high concentrate fluid be removed from the site immediately or that would indicate that this requirement should reasonably be inferred.

97. The Tribunal therefore concludes that, in evaluating this criterion, the evaluators did not apply the criteria disclosed in the tender documents.

98. The Tribunal therefore finds that this ground of complaint is valid because PWGSC did not conduct the evaluation in accordance with Article 506(6) of the AIT when it evaluated that portion of Almon’s proposal relating to section 1.1.2(a) of Requirement 2 contained in Part 4 of the RFP.

(e) Demonstrated approach in meeting operational start dates including the identification of equipment and resources to be applied at the various stages and over the length of the Contract, including back-up resources and contingency planning

99. According to the consensus scoring sheets, Almon was awarded 30 out of 50 points. The consensus scoring sheets contained the comments “Expect access to heated space”, “Expect to set-up reclaim facility”, “Expect DND to support reclaim facility” and “Expect to lengthen contract for disposal through Sewage Treatment plant”. ⁴¹

100. Regarding the comment “Expect access to heated space”, the Tribunal notes that section 5.2.2 relating to Requirement 2 of the SOW advised bidders that “[t]he contractor can expect to have no indoor or heated storage provided by DND.”

101. Almon’s proposal stated the following:

It is noted that there is no indoor or heated storage, but from time to time Almon will request that indoor space be made available for maintenance. If possible, Almon will investigate and possibly install a temporary structure if there is sufficient space and it is in accordance with all 8 Wing Regulations. A temporary structure will not likely be installed unless permission is given to leave the structure on-site through the summer months if option years are exercised.

Space permitting, Almon requests that indoor space is made available park the collection vehicles over night also. Collection vehicles collect a lot of low concentration fluids and are more susceptible to freezing as a result. When collecting a lot of snow and ice it will greatly improve the performance of the machines. ⁴²

102. As the Tribunal indicated regarding Requirement 1, it is clear that the requested indoor maintenance space and temporary maintenance structure potentially to be installed by Almon do not constitute “storage” space provided by DND as contemplated by section 5.2.2 relating to Requirement 2 of the SOW and that the RFP does not indicate that bidders should reasonably infer that they need to take into account an overall shortage of indoor space in general. However, the Tribunal notes that Almon’s proposal does not indicate any contingency plan to perform maintenance for Requirement 2 in the event that its requests for indoor and temporary maintenance space are refused by DND, and therefore in this respect it would not be unreasonable to consider that the proposal does not demonstrate well how Almon would meet operational start dates.

103. In the Tribunal’s opinion, Almon’s request for indoor space to park collection vehicles overnight is essentially a request for “storage” space provided by DND, which is ruled out by section 5.2.2 relating to Requirement 2 of the SOW. The proposal indicates that, if this request is not granted, there will likely be an impact on the vehicles’ functionality, and therefore, in this respect, it would not be unreasonable to consider that the proposal does not demonstrate how Almon would meet operational start dates.

104. Regarding the comments “Expect to set-up reclaim facility”, “Expect DND to support recla[i]m facility” and “Expect to lengthen contract for disposal through Sewage Treatment plant”, the Tribunal notes that Almon’s proposal states the following: ⁴³

Glycol that is high concentrate will be processed either onsite or at an off-site facility. If permitted Almon would like to install a glycol recycling facility at 8 Wing CFB Trenton. Due to the complexity of glycol recycling and the expense of mobilization and demobilization, Almon would need to leave the recycling equipment on-site and likely process fluid past the contract completion date in order to make this economically viable.

. . .

. . . Almon will require power and natural gas be run to equipment from DND.

105. As discussed above, the Tribunal could not locate information in the RFP on overall space constraints that would reasonably indicate to bidders that this type of proposal was likely to be turned down. The RFP also does not indicate or give a reasonable basis to infer that DND would be likely to refuse to supply natural gas or power. Therefore, these requests are not, in themselves, contrary to the requirements of the RFP. However, the Tribunal notes that Almon did not include plans to demonstrate how it would cover the contingency of failing to receive permission for this facility, either with or without the contemplated DND provision of power and natural gas, or cover the contingency of the recycling facility being approved but the disposal through the STP after the end of the contract being impossible.

106. The Tribunal therefore finds that this ground of complaint is not valid because it considers that PWGSC was not unreasonable in evaluating that portion of Almon’s proposal relating to section 1.1.2(e) of Requirement 2 contained in Part 4 of the RFP.

Remedy

107. Having found the complaint to be valid in part, the Tribunal must now recommend the appropriate remedy.

108. 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.

109. 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 prejudices the integrity and efficiency of the competitive procurement system. The Tribunal notes that there was no evidence that the technical evaluators were not acting in good faith when they conducted their evaluations.

110. Regarding Requirement 1, the Tribunal considers that, due to the relative scores of Almon’s and Petro’s proposals, Petro would still have been awarded the contract even if Almon had been awarded full marks regarding each of the criteria for which the Tribunal found that PWGSC had not conducted the evaluation properly. Therefore, because Almon has not, in the Tribunal’s view, suffered prejudice as a result of PWGSC’s actions in relation to Requirement 1, the Tribunal will not recommend a remedy regarding Requirement 1. ⁴⁴

111. However, regarding Requirement 2, an appropriate evaluation of the criteria for which the Tribunal has found that PWGSC did not conduct the evaluation properly could well have resulted in Almon being the successful bidder. Accordingly, it is clear to the Tribunal that Almon was deprived of the opportunity to be awarded the contract and to earn the associated profit. In these circumstances, given that three bidders were found to be compliant by PWGSC, the Tribunal estimates the opportunity lost by Almon to be one in three and the prejudice that it suffered to be equal to one third of the profit that it would have earned had it been the successful bidder regarding Requirement 2.

112. Given that the 2008-2009 de-/anti-icing season is complete and that PWGSC has exercised the option for the first additional year of service, the Tribunal recommends that Almon be compensated for one third of its lost profit for both the 2008-2009 and the 2009-2010 seasons. If PWGSC chooses to exercise the final option clause contained in the contract for Requirement 2 for the 2010-2011 season, the Tribunal recommends that Almon also be compensated for one third of the profit that it would have earned for that season as well. The basis for all calculations shall be the financial proposal submitted by Almon in response to Solicitation No. W0125-088713/B.

Costs

113. The Tribunal also awards Almon its reasonable costs incurred in preparing and proceeding with 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 highest level of complexity referred to in Appendix A of the Guideline (Level 3). 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 a defined service project on an as-required basis. The complexity of the complaint was high, in that the complaint involved evaluating a significant number of rated technical criteria for two separate but related requirements. Finally, the complexity of the complaint proceedings was high, as a public hearing was held, the 135-day time frame was required, and the parties filed 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 $4,100.

DETERMINATION OF THE TRIBUNAL

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

115. Pursuant to subsections 30.15(2) and (3) of the CITT Act, the Tribunal recommends that PWGSC compensate Almon for its lost opportunity by an amount equal to one third of the profit that it would reasonably have earned, had it been the successful bidder regarding Requirement 2 of the Statement of Work for Solicitation No. W0125-088713/B.

116. The Tribunal recommends that Almon and PWGSC negotiate the amount of compensation and, within 30 days of the date of this determination, report back to the Tribunal on the outcome.

117. Should the parties be unable to agree on the amount of compensation, Almon shall file with the Tribunal, within 40 days of the date of this determination, a submission on the issue of compensation. PWGSC will then have 7 working days after the receipt of Almon’s submission to file a response. Almon will then have 5 working days after the receipt of PWGSC’s reply submission to file any additional comments.

118. Pursuant to section 30.16 of the CITT Act, the Tribunal awards Almon its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by PWGSC. The Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 3, and its preliminary indication of the amount of the cost award is $4,100. 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.

119. The Tribunal reserves jurisdiction to establish the final amounts of compensation and of the cost award.

---

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

² . S.O.R./93-602 [Regulations].

³ . Canada’s electronic tendering service.

⁴ . This date assumes that Almon would have downloaded the RFP from MERX, read it, and compiled and submitted its proposal all on the same day. In all likelihood, Almon was aware of the structure and content of the RFP prior to this date.

⁵ . 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].

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

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

⁸ . 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].

⁹ . In this case, only the AIT applies. Annex 1001.1b-1 of NAFTA excludes the required services from coverage, and the services were not offered for coverage in accordance with Annex 4 to Canada’s Appendix 1 to the AGP. Regarding Chapter Kbis of the CCFTA, the chapter entitled “Government Procurement” came into effect on September 5, 2008, and does not therefore apply to this procurement.

¹⁰ . 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).

¹¹ . The individual scoring sheets were tables that contained the points awarded and the notes taken for rated criteria by each individual evaluator.

¹² . Complaint, tab 14.

¹³ . Transcript of Public Hearing, 22 April 2009, at 70, 141, 211, 251.

¹⁴ . Ibid. at 139, 152, 251.

¹⁵ . Ibid. at 51.

¹⁶ . Ibid. at 106-107.

¹⁷ . Ibid. at 248-49.

¹⁸ . Ibid. at 249.

¹⁹ . Ibid. at 184.

²⁰ . Ibid. at 234-36.

²¹ . Almon’s April 15, 2009, submission, tab 1.

²² . Complaint, tab 10 at 3.

²³ . Transcript of Public Hearing, 22 April 2009, at 126-28.

²⁴ . Complaint, tab 9 at 13

²⁵ . Complaint, tab 10 at 3. The original wording was “root to tip”, but PWGSC advised, via e-mail to Almon dated September 12, 2008, and found at tab 16 of the complaint, that it had transposed the words and that it should have read “tip to root”.

²⁶ . Transcript of Public Hearing, 22 April 2009, at 81-82.

²⁷ . To support this claim, Almon included a link in its complaint to a Department of Transport publication entitled Guidelines for Aircraft Ground - Icing Operations (TP 14052) (http://www.tc.gc.ca/civilaviation/commerce/
HoldoverTime/TP14052/menu.htm), in which Almon did not identify, and the Tribunal could not locate, any reference to that particular manufacturer or of how its planes were to be de-/anti-iced.

²⁸ . Complaint, tab 9 at 16.

²⁹ . Ibid. at 20-21.

³⁰ . Ibid. at 20.

³¹ . Complaint, tab 10 at 3.

³² . S.O.R./96-433.

³³ . Transcript of Public Hearing, 22 April 2009, at 132-34.

³⁴ . Ibid. at 80.

³⁵ . Complaint, tab 10 at 3.

³⁶ . Complaint, tab 9 at 31-32.

³⁷ . Transcript of Public Hearing, 22 April 2009, at 143-46.

³⁸ . Complaint, tab 10 at 5.

³⁹ . Complaint, tab 9 at 41, 43, 44-45, 46-47.

⁴⁰ . Transcript of Public Hearing, 22 April 2009, at 137, 156, 171.

⁴¹ . Complaint, tab 10 at 5.

⁴² . Complaint, tab 9 at 52-53.

⁴³ . Almon’s proposal at 43.

⁴⁴ . Other than costs incurred in preparing and proceeding with the complaint as a whole, as discussed below.