VIREO NETWORK INC.
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2013-037

Determination and reasons issued
Wednesday, April 23, 2014

TABLE OF CONTENTS

DETERMINATION

STATEMENT OF REASONS

• COMPLAINT
• BACKGROUND TO THE COMPLAINT
• TRIBUNAL’S ANALYSIS
  • Ground 1: Was PWGSC’s Evaluation of Vireo’s Proposal Reasonable in Relation to Rated Technical Criteria R.1.1, R.1.2 and R.1.3?
  • Ground 2: Did PWGSC Breach the Prescribed Procedural Requirements by Providing Vireo With an Unsigned Copy of the Technical Evaluation Grid?
• COSTS
• DETERMINATION OF THE TRIBUNAL

 

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

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

BETWEEN

VIREO NETWORK INC. Complainant

AND

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES Government Institution

DETERMINATION

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

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards the Department of Public Works and Government Services its reasonable costs incurred in responding to the complaint, which costs are to be paid by Vireo Network Inc. The Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Canadian International Trade Tribunal, as contemplated in article 4.2 of Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of the award.

Ann Penner
Ann Penner
Presiding Member

Gillian Burnett
Gillian Burnett
Secretary

Tribunal Member: Ann Penner, Presiding Member

Counsel for the Tribunal: Laura Little

Registrar Officer: Ekaterina Pavlova

Complainant: Vireo Network Inc.

Government Institution: Department of Public Works and Government Services

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

Please address all communications to:

The Secretary
Canadian International Trade Tribunal
15th Floor
333 Laurier Avenue West
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 February 3, 2014, Vireo Network Inc. (Vireo) 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 Request for Supply Arrangement (RFSA) (Solicitation No. EN578-09264/C) by the Department of Public Works and Government Services Canada (PWGSC) for the provision of film, video and audio-visual production services to the Communications Procurement Directorate (CDP) of PWGSC.
2. The grounds of Vireo’s complaint were the following:

• the technical evaluation team improperly assessed Vireo’s proposal on the basis of ambiguous, irrelevant or untrue information, and undisclosed technical criteria. The technical evaluation team therefore acted in bad faith and demonstrated bias, causing it to wrongly reject Vireo’s proposal and give it a failing technical score; and
• PWGSC breached the procedural requirements of the solicitation by failing to provide signatures of a peer evaluation team on the technical evaluation grid completed for Vireo’s proposal.

3. As a remedy, Vireo requested to be added to the list of supply arrangement (SA) holders for this solicitation, with conditional provisions. In the alternative, Vireo requested that it be compensated for lost opportunity to earn future profits. Vireo also sought punitive damages against PWGSC, given its view that the technical evaluation team had acted in bad faith when considering its bid.

BACKGROUND TO THE COMPLAINT

4. On October 2, 2013, PWGSC issued a refresh of the RFSA that is the subject of Vireo’s complaint for the provision of film, video and audio-visual production services. The original RFSA and the first refresh, issued on September 3, 2010, and September 24, 2012, respectively, had resulted in the establishment of a list of 34 qualified SA holders.
5. The second refresh of the RFSA stated PWGSC’s intention to qualify a list of suppliers^[2] that were able to provide a full range of services on an “as and when required basis” to the CPD of PWGSC on behalf of certain government departments and agencies.
6. Paragraph 2.1 of Part 4 of the RFSA specified that, to be declared responsive, a supplier had to comply with all the requirements of the RFSA, meet all mandatory technical criteria and obtain the required minimum of 70 percent of the available points for each rated criterion and an overall passing mark of 80 points on a scale of 100 points. The top five fully responsive suppliers with the highest point ratings would be listed as “Primary” SA holders, and all other fully responsive suppliers would be listed as “Standard” SA holders.
7. The solicitation period closed on October 22, 2013. PWGSC received 19 bids in response to the RFSA, including one from Vireo. This was Vireo’s first bid for the SA, as it did not participate in the original RFSA or the first refresh process.
8. An evaluation team comprised of three members^[3] conducted the technical evaluations between November 5 and December 4, 2013.
9. In a letter dated December 23, 2013, and sent January 7, 2014, PWGSC advised Vireo that none of the 19 bids had met the minimum requirements of the RFSA and, as a result, no SAs were issued. PWGSC also explained that Vireo would not be issued an SA because its bid did not achieve an overall passing mark of 80 points.
10. On January 20, 2014, Vireo made an objection to PWGSC concerning the technical evaluation of its bid. Specifically, Vireo contested the scores and the related comments that it received for 3 of the 4 point‑rated technical criteria set out in Part 4 of the RFSA, namely, R.1.1, R.1.2 and R.1.3. Vireo also took issue with the fact that its evaluation grid was not signed by the evaluation team members. Vireo requested that PWGSC disclose all records relating to the evaluation and present them to Vireo at a debriefing session.
11. On January 21, 2014, PWGSC responded to Vireo’s objection and confirmed the evaluation results. PWGSC stated that all bids were evaluated in accordance with the requirements relating to evaluation procedures and basis of selection in Part 4 of the RFSA. PWGSC also invited Vireo to contact its officials with any further questions. There is no evidence or information on the record indicating that a debriefing was held between Vireo and PWGSC in relation to this matter.
12. As stated above, Vireo filed its complaint with the Tribunal on February 3, 2014. On February 6, 2014, the Tribunal informed the parties that the complaint had been accepted for inquiry as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.^[4]
13. On March 3, 2014, PWGSC filed a Government Institution Report (GIR) with the Tribunal pursuant to rule 103 of the Canadian International Trade Tribunal Rules.^[5] Vireo requested and was granted, in part, three separate extensions to file its comments on the GIR. Vireo’s comments were filed on March 24, 2014.
14. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that an oral hearing was not required and disposed of the complaint on the basis of the written information on the record.

TRIBUNAL’S ANALYSIS

15. Subsection 30.14(1) of the CITT Act requires that the Tribunal limit its considerations to the subject matter of the complaint when conducting an inquiry. Subsection 30.14(2) of the CITT Act requires the Tribunal to determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract were observed.
16. Section 11 of the Regulations further provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, in this case, is the Agreement on Internal Trade.^[6]
17. The Tribunal will therefore examine Vireo’s two grounds of complaint in light of the requirements of the RFSA and the AIT.

Ground 1: Was PWGSC’s Evaluation of Vireo’s Proposal Reasonable in Relation to Rated Technical Criteria R.1.1, R.1.2 and R.1.3?

Positions of Parties

18. Vireo submitted that its video samples were improperly assessed against point-rated technical criteria R.1.1, R.1.2, and R.1.3 because the comments provided by the technical evaluation team were ambiguous, irrelevant or untrue and, in some cases, demonstrated that standards not disclosed in the RFSA may have been applied. In its view, the samples met the minimum technical criteria, as well as relevant industry technical standards, and should have received a passing technical score.
19. According to the GIR, the technical evaluation team conducted “. . . inherently subjective technical assessments of the video packages submitted by Applicants”, given the qualitative nature of the criteria.^[7] PWGSC argued that, given the inherently subjective nature of the evaluation and the fact that the evaluators addressed the specific elements of the rated technical criteria in their comments on Vireo’s video samples, there is nothing to suggest that PWGSC acted unreasonably in finding that Vireo’s proposal was non‑compliant with the minimum point-rated technical criteria. Accordingly, PWGSC submitted that there is no reason to interfere with the evaluation process or the conclusions of the evaluators.
20. In its comments on the GIR, Vireo argued that “. . . it is clear the Evaluation Team applied objective and quantitative methods to their evaluation . . .”^[8] of whether Vireo’s video samples met the required minimum for technical standards, in addition to purely subjective elements, and that the non-disclosure of these technical standards resulted in an unfair evaluation process.
21. To further support its argument that the evaluation process was ambiguous and inconsistent, Vireo contrasted the rating that it received for criterion R.1.4 (10 out of 10 points) with the lower scores that it received for criteria R.1.1, R.1.2 and R.1.3. According to Vireo, the discrepancy proved that the evaluators were biased and failed to evaluate its bid in a procedurally fair manner.

Relevant provisions of the RFSA

PART 4

EVALUATION PROCEDURES AND BASIS OF SELECTION

1. EVALUATION PROCEDURES

. . . 

1.1.1 MANDATORY TECHNICAL CRITERIA

. . . 

M.4 EXPERIENCE OF THE FIRM (The demo samples will be rated under R.1)

The Supplier MUST demonstrate their experience by submitting one (1) DVD or one (1) Blu‑ray demo of at least four (4) samples produced and completed within the last five (5) years. The total running time of the samples MUST not exceed twenty (20) minutes in length. The productions MUST have been completed entirely by the Supplier in its original language under a contract with the public sector or private industry.

• One (1) of the samples MUST demonstrate the Suppliers ability to produce a video based audio-visual production for internal or external audiences for government (federal, provincial or municipal), for non-government organizations (NGA’s) or be a corporate video.
• One (1) of the samples MUST demonstrate the Suppliers ability to produce an audio-visual production that was tailored and posted to the Internet or adapted for Internet use.
• One (1) of the samples MUST demonstrate the Suppliers ability to work in both official languages (English and French). Productions that have voice-overs, fully narrated or subtitled are not acceptable to demonstrate bilingual capability. For added details, a bilingual production is one in which there is both English and French equally and substantively represented in the same production. An adaptation is where after a production is produced in one language, it is then adapted into the other language taking into consideration the social and cultural differences of the target language population. An adaptation is not a straight translation.

OFFERS NOT MEETING ALL OF THE MANDATORY TECHNICAL CRITERIA WILL BE GIVEN NO FURTHER CONSIDERATION.

1.1.2 POINT RATED TECHNICAL CRITERIA

R.1 EXPERIENCE OF THE FIRM AND QUALITY OF SAMPLES PROVIDED

(Maximum 100 points – Minimum 70 points)

The Supplier shall be assessed against the demo samples provided in accordance with M.4.

The DVD demo should be able to be played on both a computer and a stand-alone player.

The demo should be menu driven.

To better understand the samples submitted for the mandatory criteria M4., the following information should also be provided for each sample. Please complete the Video Demo – “Proposed Project Fact Sheet” located in Appendix “2”.

• Client;
• Client contact
• Description and purpose of production;
• Target audience(s);
• Creative approach;
• Production dates;
• Production budget;
• Project outcomes.

The video demo will be evaluated on the following rated criteria:

R.1.1 Demo samples demonstrate creative and technical excellence (40 points).

At a minimum, we are looking for the following criteria: your approach (is it attractive, creative, innovative or appropriate); the quality of images; quality and effectiveness of cinematography, the use of special effects and graphics; use of camera angles; lighting, editing, and effective use of music and sound.

Percentage factors utilized for the evaluation of the demo samples:

. . . 

Limited (0.5): Criterion addressed, but not enough information provided and/or technically not acceptable. Less than established minimum.

Acceptable (0.7): This is the established minimum. All of the above mentioned criteria are acceptable. Meets the minimum for technical standards. Demo demonstrates some creativity and innovation.

. . . 

R.1.2 The effective use of treatment, script, language and visual techniques to communicate the themes and messages. (40 points)

At a minimum, we are looking for the following criteria: engaging and complete storyline, clear script, appropriate use of language, quality of translation, effective communication of content and messages both in narration and on-camera and use of other techniques to get the message across. The success in conveying messages in both English and French is equivalent.

Percentage factors utilized for the evaluation of the Treatment, script, language and visual techniques:

. . . 

Limited (0.5): Criterion addressed, but not enough information provided and/or technically not acceptable. Less than established minimum.

Acceptable (0.7): This is the established minimum. All of the above mentioned criteria are acceptable, and meets the established minimum. The treatment, script, language and technique adequately help convey themes and messages.

. . . 

R.1.3 Demonstrate a wide variety of visual and dramatic devices, such as: graphic animation sequences; typography/on-screen text; motion graphics and animations; still imagery; imported (stock) film footage; off-camera and on-camera narration; music; sound and special effects (10 points).

At a minimum, we are looking for the use of six (6) of the ten (10) above-mentioned visual or dramatic devices.

Percentage factors utilized for the evaluation of the visual and dramatic effects:

. . . 

Limited (0.5): Criterion addressed, but not enough information provided and/or technically not acceptable. Less than established minimum.

Acceptable (0.7): This is the established minimum. At least six (6) of the listed devices are effectively used, and the demo meets the established minimum.

. . . 

R.1.4 The audio-visual production outcomes. (10 points)

At a minimum, the Supplier should describe the success of the projects. What was the feedback from the audience, if any? We are aware that many Suppliers are not in control of evaluating the projects success/use, nor always able to monitor audience feedback, however a written and signed client testimonial on how the video’s were used and received would suffice.

Percentage factors utilized for the evaluation of the outcomes of the videos:

. . . 

Acceptable (0.7): This is the established minimum. The supplier communicated in an appropriate manner the outcome of the projects.

. . . 

Outstanding (1): The supplier communicated its subject matter that is excellent and appropriate of the outcome of the projects. Outstanding details were provided. The client testimonial confirmed the high level of audience acceptance.

Analysis of Ground 1

22. Vireo suggested that Articles 504(1)(b) and 504(3)(b) of the AIT were relevant to its complaint. Article 504(1)(b) provides that, with respect to measures covered by Chapter Five of the AIT, each party shall accord the suppliers of goods and services of any other party treatment no less favourable than the best treatment that it accords to its own suppliers of such goods and services. Article 504(3) provides an illustrative list of measures that are inconsistent with the obligation of reciprocal non-discrimination, including “(b) the biasing of technical specifications in favour of, or against, . . . the suppliers of [particular] goods or services for the purpose of avoiding the obligations of this Chapter”.
23. The Tribunal is not persuaded that Articles 504(1)(b) and 504(3)(b) of the AIT are relevant to its inquiry. Vireo did not present argument or evidence to demonstrate that it was discriminated against vis‑à‑vis other potential suppliers, as would be required to invoke Article 504(1)(b). Likewise, Article 504(3)(b) is not applicable since the complaint did not allege that the technical specifications, as presented in the RFSA, were somehow biased against Vireo in particular.
24. Nevertheless, the Tribunal does believe that PWGSC’s actions should be examined in the context of Article 506(6) of the AIT, as argued by Vireo in its comments on the GIR, as well as Article 514(2). Article 506(6) provides that “[t]he 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.” Article 514(2) provides that the Federal Government shall adopt and maintain bid protest procedures “[i]n order to promote fair, open and impartial procurement procedures”.
25. The Tribunal has consistently applied the reasonableness standard when considering the validity of a complaint about the manner in which a bid was evaluated.^[9] It has also made clear that it will not 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 bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair manner.^[10]
26. In addition, the Tribunal has held that an evaluation will be considered reasonable if it is supported by a tenable explanation, regardless of whether or not the Tribunal itself finds that explanation compelling.^[11]
27. Before examining whether the evaluation team conducted a reasonable evaluation of Vireo’s video samples in accordance with the mandatory technical requirements of the RFSA and the AIT, the Tribunal must first consider whether PWGSC clearly identified the technical criteria for this solicitation and the manner in which those criteria would be evaluated.

–        Were the technical criteria clearly provided for in the RFSA?

28. As set out above, Part 4 of the RFSA included the point-rated technical criteria against which the video samples would be evaluated, including the three criteria at issue in this complaint (R1.1, R1.2 and R1.3). Part 4 also included a description of the different scores (“percentage factors”) for each criterion and identified the score that represented the established minimum acceptable response.
29. A plain reading of criteria R1.1, R1.2 and R1.3 shows that they are inherently subjective. For example, criterion R.1.1 required that the video samples demonstrate “creative and technical excellence” and that the following criteria be met: “your approach (is it attractive, creative, innovative or appropriate)”, “quality and effectiveness of cinematography, the use of special effects and graphics” and “effective use of music and sound”. Although it would certainly be possible to establish specific, objectively measurable standards for some of these technical elements, such as lighting, special effects and sound, criterion R.1.1 called for a subjective evaluation process by referring to the assessment of the “effectiveness” or “effective use” of these technical elements.
30. It is apparent that criterion R.1.2 was intended to be evaluated on a subjective basis as well. According to its terms, the technical evaluation team was required to asses the video samples on the basis of such factors as the “effective use” of various techniques, whether the storyline is “engaging”, the “proper use” of language, “quality” of translation, and “effective” communication of content and messages.
31. Likewise, the technical scoring description for R.1.3 required that “[a]t least six (6) of the listed devices are [to be] effectively used, and the demo [is to meet] the established minimum.” Without the word “effectively”, it would have been reasonable to interpret this criterion as simply requiring that the video samples had to show a certain number of visual and dramatic devices; however, the use of this word introduces a subjective element to the assessment of such devices.
32. In the Tribunal’s view, it is reasonable that the RFSA required the evaluation team to use criteria of a subjective nature to evaluate creativity, technical excellence, effectiveness and visual and dramatic devices because those concepts are also inherently subjective. What one person considers creative, effective or dramatic may not be considered so by another person. Moreover, the subjective criteria at issue in this complaint were appropriate considering the RFSA’s purpose of establishing a list of qualified suppliers that could eventually be called upon to provide audio-visual production services to various government departments and agencies, all of which would have different (subjective) needs and goals and would likely require different technical standards depending on the scope and budget of a particular resulting contract. Essentially, the solicitation process served as an initial vetting to ensure that the SA holders would meet a minimum threshold in terms of the quality, within the context that a resulting contract would identify more precise technical standards and specification at a future date.
33. The Tribunal recognizes that a purely subjective and qualitative analysis could become problematic in a competitive bidding process, given that beauty tends to be in the eye of the beholder. Unless criteria are fully disclosed or enumerated, and evaluations quantified in some way (even in terms of documented comments), allegations of bias could be reasonably, or even rightly, made. In the present case, however, mandatory technical requirements were enumerated, as were the criteria against which bids were to be assessed. Specifically, the RFSA set out how qualitative, subjective technical criteria were be quantified or measured, as grading scales were provided to explain how and why a particular score was appropriate.
34. The fact that PWGSC provided no objectively measurable technical standards or specifications in relation to the evaluation procedures or basis of selection in the RFSA indicates that it intended for the video samples to be evaluated solely on the basis of the terms of the rated technical criteria.
35. This interpretation is supported by PWGSC’s answers to questions 12 and 36 released during the original RFSA in 2010 and included in Appendix 3 of the second refresh RFSA, as follows:

Question 12: Will we be evaluated on the basis of Annex “A” – Statement of Work? Must we take into account the criteria set out in the Statement of Work for our bid to be responsive? Or is the Statement of Work a sample of the work that is likely to be requested by client departments?

Answer 12: You will be evaluated solely on the basis of the specifications set out in Part 4 – “Evaluation Procedures and Basis of Selection.” However, the Statement of Work will give you the scope of the work that will be requested.

. . . 

Question 36: Will the Demo evaluation criteria be applied to the entire video demo as a whole or will each example be evaluated by the set criteria. . . .

Answer 36: We will be evaluating the demos by using the criteria specified in each point rated technical criteria (R.1.1 to R.1.4). We will also be using the information provided by the “Proposed Project Fact Sheet” included in the solicitation document at the Appendix “2” to further understand the demos supplied. The evaluation committee will also be looking at the samples provided as a whole.

[Emphasis added]

36. In light of the above, the Tribunal is satisfied that the solicitation documents were clear that the evaluation would be based solely on the terms of the rated technical criteria and related grading scales. PWGSC’s answer to question 36 confirms that the evaluation team would look at the video samples “as a whole”. Furthermore, the answer to question 12 clarified that the Statement of Work, which included general technical standards for colour, sound and lighting, applied to resulting contracts under the SA and not to the evaluation of bids. This underscores that PWGSC deliberately chose not to include specific, objectively measured technical standards for the purposes of evaluation under Part 4 of the RFSA.

–        Were Vireo’s video samples evaluated reasonably?

37. Given that the Tribunal finds that the solicitation documents clearly identified the requirements of the solicitation in accordance with Article 506(6) of the AIT, the Tribunal will now consider whether PWGSC conducted a reasonable evaluation of Vireo’s video samples against the requirements of the RFSA.
38. Vireo objected to the following comments and scores that its video samples received for criteria R.1.1, R.1.2, and R.1.3:

R.1.1 (Point score 20/40)

Unacceptable demonstration of technical abilities.

Lighting, editing, camera angles, music choice and sound issues.

Very basic and limited approach – not creative, innovative or appropriate.

Does not meet the minimum for technical standards.

Overall, was of amateur quality.

. . . 

R.1.2 (Point score 20/40)

The treatment of the demo clips was not particularly engaging.

Choice of talent was poor, as they clearly lacked professional training.

Visual techniques were basic throughout.

The French sample provided was not of acceptable quality.

. . . 

R.1.3 (Point Score 5/10

Poor use of graphic effects and music.

Typography was basic, limited and uninteresting.

On and off-camera narration was limited and not professionally executed.

Little or no use of still imagery, stock film footage, or animations present.

39. There is no question that the comments of the evaluation team were brief and even vague in certain instances. However, the comments demonstrate that the evaluation team did indeed consider the specific elements of the rated criteria in question. The evaluation team’s subjective and qualitative analysis was also explained by the numerical scores assigned to Vireo’s bid, scores which quantified how the requirements of the RFSA were (or were not) met. The Tribunal, therefore, agrees with PWGSC that the evaluators turned their minds to and took note of the elements set out in the text of each criterion.^[12]
40. Similarly, the handwritten notes of each evaluator, filed on the confidential record, are brief and do not provide detailed comments about Vireo’s video samples. Nevertheless, the Tribunal finds that many of the elements from each of the criteria are reflected in the contents of the notes, which again shows that the evaluators considered the relevant criteria as specified in the RFSA. It is significant that neither the comments nor the handwritten notes even hint that undisclosed technical standards or specifications may have been applied in the evaluation of Vireo’s video samples.
41. Therefore, there is simply no evidence to support Vireo’s allegation that the evaluators applied undisclosed criteria.^[13] In fact, the evidence demonstrates the opposite; the evaluators reasonably applied their judgment in assessing Vireo’s video samples for each of the rated technical criteria. Furthermore, there is nothing on the record to suggest that they ignored vital information or wrongly interpreted the scope of any of the mandatory requirements of the RFSA.
42. When challenging the comments made by the evaluation team as ambiguous, irrelevant or untrue, Vireo relied primarily on its own subjective, qualitative analysis of its video samples. For example, with respect to criterion R.1.1, Vireo defended its technical abilities, arguing that the video samples adhered to “industry standards” for, inter alia, sound, colour grading and lighting, and using phrases such as “high quality”, “professional grade”, “optimum focal range”, “acceptable positioning” and “mixed appropriately”.^[14]
43. In relation to criterion R.1.2, Vireo submitted that the terms of the criterion did not entitle the evaluators to comment on the suitability of actors used or their level of training. It further argued that the bilingual video sample met “industry standards” for language and that “advanced” lighting and visual techniques were used to “. . . create a video with a greater sense of dynamic range” and “. . . augment the aesthetic qualities of the video . . .” respectively.^[15]
44. Vireo also relied heavily on positive, yet inherently subjective, testimonials from past clients as “proof” that its video samples should have received passing scores. Vireo used this positive client feedback to argue that the evaluation was conducted in bad faith and/or in a biased manner. In particular, it questioned how it could have received 10 out of 10 points for criterion R.1.4, in contrast with much lower scores that were given for the three criteria in question. For example, in relation to criterion R.1.2, Vireo argued that its positive client testimonials disproved the comment that the treatment of its demo clips was not particularly engaging – especially since these testimonials attested that the clients’ qualitative objectives were met.^[16] Similarly, it disputed the “poor use of graphic effects and music” comment for criterion R.1.3 because these elements had met their clients’ needs and adhered to “industry standards”.
45. In regard to the score that Vireo received for criterion R.1.3, the Tribunal notes that the evaluation team gave a score of 0.5 because Vireo’s video samples did not demonstrate the effective use of at least six of the listed devices, did not provide enough information regarding the use of those devices and/or the use of those devices was not technically acceptable. Moreover, the Tribunal notes that the comments of the evaluation team shed further light on the rationale behind Vireo’s score of 0.5 because they refer to the fact that Vireo’s samples used four devices (e.g. graphic effects, music, typography, and on and off-camera narration) but demonstrated “little or no use” of three devices (e.g. still imagery, stock film footage and animations). Although the comments do not explicitly state that Vireo failed to employ a minimum of six devices, it is clear from the comments that, in the eyes of the evaluators, none of the four devices identified were used effectively. This is supported, albeit to a limited extent, by their confidential handwritten notes.^[17]
46. In the Tribunal’s view, both the evaluators’ comments and Vireo’s objections are based on the subjectivity of their respective analyses. While Vireo may very well have been correct that its clients were fully satisfied with its videos, their level of satisfaction does not, in and of itself, establish that Vireo’s video samples should have been deemed acceptable or appropriate in the context of PWGSC’s stated technical criteria. Nor does it establish that PWGSC’s evaluation was done in bad faith or a biased manner. Just because one audience deemed a video to be of satisfactory quality does not mean that another must follow suit.
47. Similarly, the fact that a higher score was given for one criterion does not mean that the evaluators acted unfairly or in a biased manner by attributing lower scores for the other criteria. Each of the technical criteria in the RFSA was defined distinctly and evaluated on a separate basis. Unlike the other three criteria in dispute, criterion R.1.4 is the only one that is based, in part, on an external component, i.e. client testimonials. Accordingly, it is reasonable to expect that the relative scoring for criterion R.1.4 could be different from the other three (i.e. criteria R.1.1, R.1.2 and R.1.3).
48. In light of the above, the Tribunal is satisfied that the comments of the evaluation team addressed the factors listed in the required technical criteria in question. Vireo’s video samples were indeed scored against the specific elements of the technical criteria set out in the RFSA. The evaluation was conducted in a reasonable manner, as qualitative, subjective criteria were quantified to ensure fairness and transparency in the procurement process. In fact, Vireo itself conceded that “. . . [i]t’s clear by [the comments of the evaluation team] that they have considered the Technical components of the criterion. . . . the evaluators considered only the subjective matter per R.1.1 . . . it is clear the Evaluation Team applied objective and quantitative methods to their evaluation . . . .”^[18]
49. In this way, and by Vireo’s own admission, the evaluation team applied itself to assess the stated technical requirements fully, employing the grading scale set out in the RFSA to apply a quantitative measure to otherwise subjective and qualitative concepts that were set out in the rated technical criteria. Its scoring was reasonable and supported by a tenable explanation. The Tribunal will therefore not substitute its judgment for that of the evaluators.

Ground 2: Did PWGSC Breach the Prescribed Procedural Requirements by Providing Vireo With an Unsigned Copy of the Technical Evaluation Grid?

Positions of Parties

50. Vireo submitted that PWGSC breached the procedural requirements for this solicitation by failing to provide the signatures of the evaluation team on the technical evaluation grid of the RFSA. This allegation arose from PWGSC’s rejection letter dated December 23, 2013, which included a copy of Vireo’s grid showing the evaluation team’s comments, but in which the “Evaluation Team Signatures” section was left blank. Vireo argued that the inclusion of that section led it to believe that signatures would be provided and that, without them, it had no proof that its bid was properly evaluated. To support its position, Vireo relied on a clause from the PWGSC’s “Supply Manual”, which states that “[e]ach person who participated in the technical evaluation as an evaluator must sign the report”.^[19]
51. In the GIR, PWGSC did not directly address Vireo’s allegation regarding the missing signatures on the evaluation grid. It did however file a copy of the evaluation grid that was signed by all three members of the technical evaluation team and dated December 4, 2013.^[20] PWGSC acknowledged that it had provided an unsigned version of the grid to Vireo.^[21] In PWGSC’s letter to Vireo dated January 21, 2014 (response to the objection), it indicated that the names of the evaluators were intentionally withheld in the copy sent to Vireo because PWGSC took sole responsibility for the results of the evaluation.^[22]
52. In its comments on the GIR, Vireo submitted that PWGSC might have created the signed copy of the evaluation report after bid closing, which would constitute a fraudulent act. Vireo went further, suggesting that the evaluation team might never have met to review its bid at all.^[23]

Analysis of Ground 2

53. The Tribunal notes that nowhere in the RFSA was there an express requirement that the technical evaluation report be signed by the members of the evaluation team. Section 1 of Part 4 of the RFSA, “Evaluation Procedures”, simply provided that “ii. [a]n evaluation team composed of representatives of Canada will evaluate the arrangements.” Likewise, the RFSA did not explicitly integrate the general guidelines of PWGSC’s “Supply Manual”.^[24] Nevertheless, given that the evaluation grid in Annex “E” to the RFSA contained a section titled “Evaluation Team Signatures”, the Tribunal considers that it was implied that each member of the evaluation team would sign and date the completed report, as argued by Vireo.
54. The evidence filed with the GIR demonstrates that each member of the technical evaluation team did, in fact, sign the report, together with the two members of the contracting authority, on December 4, 2013, a date well within the prescribed technical evaluation period.^[25] Accordingly, the Tribunal is satisfied that this implied requirement under the RFSA was met.
55. In the Tribunal’s view, it would have been preferable if PWGSC had disclosed the signed version in response to Vireo’s objection, for the purposes of ensuring greater transparency and fairness. However, the Tribunal is not persuaded by the evidence on the record that PWGSC’s actions amounted to a breach of its obligations under the AIT, given that PWGSC responded to Vireo without delay, i.e. the day after Vireo’s objection was made, to provide clarification. PWGSC specifically attested to the authenticity of the evaluation report and assured Vireo that the evaluation had been conducted in conformity with the provisions of Part 4 of the RFSA.
56. Furthermore, Vireo has not provided any compelling evidence (beyond mere speculation) to substantiate its assertion that the evaluation team never actually met or that the signed version of the evaluation report was fraudulently created by PWGSC after bid closing.
57. In light of the above, the Tribunal concludes that PWGSC did not breach the procedural requirements for this solicitation by initially providing Vireo with an unsigned copy of the technical evaluation grid.
58. Finally, the Tribunal notes that Vireo’s written submission included numerous requests for additional documentary disclosure by PWGSC. For example, Vireo sought the disclosure of all records relating to the evaluation of its bid, as well as information regarding all other bidders in the RFSA process so that the Tribunal “could further investigate” if they were “treated in the same manner as Vireo”.^[26] The Tribunal has the discretion to decide whether a request for the disclosure of specific information or materials by a party is warranted in the context of a particular inquiry. In its view, such disclosure was not necessary in this case, as there was sufficient information on the record for it to make a determination on the validity of the grounds of complaint. Unsubstantiated and speculative allegations of bad faith and bias do not provide a basis for a complainant to access documents in the possession of the government institution.^[27] Nor is it appropriate to use the disclosure process as a means for complainants to engage in evidentiary “fishing expeditions” for further possible grounds of complaint.^[28]

COSTS

59. The Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint. In determining the amount of the cost award for this complaint, the Tribunal considered its Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline), which contemplates classification of the level of complexity of cases based on three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.
60. The Tribunal’s preliminary view is that this complaint corresponds to the first level of complexity referred to in Appendix A of the Guideline, as it dealt with the routine procurement of a supply arrangement refresh requirement. The complaint itself was moderately complex, given the numerous allegations pertaining to the issue of an evaluation based on rated requirements that involved many elements of a subjective nature. Finally, the complaint proceedings involved a low level of complexity, as there were no motions, no additional submissions by parties and no oral hearing.

DETERMINATION OF THE TRIBUNAL

61. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.
62. Pursuant to section 30.16 of the CITT Act, the Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint, which costs are to be paid by Vireo. 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 in article 4.2 of the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the award.