R.P.M. TECH INC.
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2014-040

Determination and reasons issued
Wednesday, March 25, 2015

TABLE OF CONTENTS

• DETERMINATION
• STATEMENT OF REASONS
  • BACKGROUND
  • PROCUREMENT PROCESS
  • ANALYSIS
    • Specification 2.8
    • Specification 3.5
    • Specification 2.13.1
    • Specification 3.10.2
  • COSTS
  • DETERMINATION OF THE TRIBUNAL

 

IN THE MATTER OF a complaint filed by R.P.M. Tech 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

R.P.M. TECH 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 R.P.M. Tech Inc. In accordance with the Guideline for Fixing Costs in Procurement Complaint Proceedings, the Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,150. If either 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 article 4.2 of the Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of the award.

Daniel Petit
Daniel Petit
Presiding Member

Tribunal Member: Daniel Petit, Presiding Member

Counsel for the Tribunal: Georges Bujold

Senior Registrar Officer: Michel Parent

Registrar Officer: Haley Raynor

Registrar Support Officer: Vedranka Zec

Complainant: R.P.M. Tech Inc.

Government Institution: Department of Public Works and Government Services

Please address all communications to:

The Registrar
Canadian International Trade Tribunal
333 Laurier Avenue West
15th Floor
Ottawa, Ontario  K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
E-mail: citt-tcce@tribunal.gc.ca

STATEMENT OF REASONS

BACKGROUND

1. On November 12, 2014, R.P.M. Tech Inc. (R.P.M.) filed a complaint with the Canadian International Trade Tribunal (the Tribunal), pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act,^[1] concerning a procurement (Solicitation No. W7701-155973/A) by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of National Defence, for the provision and delivery of a detachable industrial snowblower to the Valcartier Research Centre of Defence Research and Development Canada (DRDC-Valcartier).
2. R.P.M. alleges that certain clauses of the technical specifications attached to the Request for Proposals (RFP) favour a specific manufacturer and requests, as a remedy, that these clauses be removed from the RFP.
3. On November 17, 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.^[2] On November 18, 2014, the Tribunal issued a postponement of award of contract order pursuant to subsection 30.13(3) of the CITT Act.
4. On December 11, 2014, PWGSC requested an extension of time to file the Government Institution Report (GIR) until December 22, 2014. On December 15, 2015, the Tribunal granted the extension of time. In accordance with section 103 of the Canadian International Trade Tribunal Rules^[3] and the Tribunal’s decision to grant the extension of time, PWGSC filed the GIR with the Tribunal on December 22, 2014.
5. On January 5, 2015, R.P.M. requested an extension of time to file its comments on the GIR. On the same day, given PWGSC’s consent, the Tribunal accepted R.P.M.’s request to file its comments on the GIR on January 19, 2015, at the latest.^[4] In accordance with section 104 of the Rules and the extension of time granted by the Tribunal, R.P.M. filed its comments on the GIR on January 19, 2015.
6. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that an oral hearing was not required and disposed of the complaint on the basis of the written information on the record.

PROCUREMENT PROCESS

7. On October 21, 2014, PWGSC issued the RFP on the Government Electronic Tendering Service website. The RFP indicates that the government institution’s requirement is the purchase of a new detachable industrial snowblower with a minimum clearing capacity of 2,750 tonnes/hour (the blower).
8. The blower must be usable with a “loader”-type heavy vehicle, to which it will be attached. In this regard, the RFP indicates that the blower will be “. . . handled by a John Deere wheel loader model 544K belonging to [DRDC-Valcartier] . . . as [stipulated in the] specifications detailed in Annex ‘A’ [attached to the RFP]”^[5] [translation]. According to these specifications, the successful bidder must supply the blower, a wireless removable control panel and the hitch allowing the blower to be installed in front of the loader, which already belongs to DRDC-Valcartier.^[6]
9. The RFP also provides that the proposals must meet certain mandatory technical criteria, failing which they will be declared non-responsive. Moreover, a clause of the RFP specifies the following:

To explain and demonstrate how they propose to meet the requirements of this request, Bidders must submit with their bid a copy of the complete specifications and technical notes of the products offered. If the documents submitted with your bid (complete specifications and technical notes of the products offered) do not show that your products meet the preselected technical specifications, your bid will be declared non-responsive.^[7]

[Translation]

10. The “preselected technical specifications”, which, in application of this clause, amount to mandatory technical criteria, are enumerated in Annex A of the RFP. In fact, Annex A constitutes the technical specifications of the required blower. This document consists of a long list (presented on 14 pages) of the blower’s features and describes the requested technical specifications in detail. Under the RFP, to prevent its proposal from being declared non-responsive, a potential supplier must therefore demonstrate that the product it offers complies with these specifications.
11. On October 23, 2014, a representative of R.P.M. sent an email to PWGSC, submitting that the requirements of the RFP favour another potential supplier and expressing doubts as to the capacity of the loader to handle a blower of such weight. The same day, PWGSC responded to this email and asked R.P.M. to identify which technical specifications seem to favour the purchase of a specific product.
12. On October 23, 2014, R.P.M. indicated to PWGSC in another email that 12 specifications among those appearing in Annex A of the RFP mean that only one potential supplier is able to submit a responsive bid. These are specifications 2.6, 2.8, 2.13.1, 2.14.1, 3.1.1, 3.5, 3.10.1, 3.10.2, 5.2, 5.6, 5.7 and 6.4.^[8]
13. PWGSC then consulted the persons in authority at DRDC-Valcartier to determine whether it was possible to modify the specifications that were problematic, according to R.P.M., without compromising the operational requirements of DRDC-Valcartier.
14. On November 3, 2014, PWGSC published a first amendment to the RFP. Eight of the twelve specifications identified by R.P.M. were then amended to remove certain requirements and to allow certain equivalents that were not permitted in the original RFP.
15. The other four specifications contested by R.P.M., namely, specifications 2.8, 2.13.1, 3.5 and 3.10.2, remained unchanged, but Amendment No. 1 reproduces these specifications and provides explanations to justify them. In this regard, PWGSC stated that these specifications were included to enable DRDC-Valcartier to meet its operational requirements while respecting the lifting capacity of the John Deere loader, model 544K:

Specification # 2.8: It remains unchanged, but we are stating the reasons for that:

• The length from hitch plate shall be a maximum of 2,083 mm (82 inches).

• This dimension allows for a considerable reduction of the blower’s centre of gravity. The Research Centre’s weight capacities are limited regarding the choice of the wheel loader assigned to the task of clearing snow by snowblower. With a 41-inch hitch plate centre (commonly known as Quick Connect), the balancing motion is therefore reduced and allows the wheel loader to perform lifting and transport.

Specification # 2.13.1: It remains unchanged, but we are stating the reasons for that:

•  The vertical loading chute must be directional and have one (1) flexible section on the horizontal axes and one (1) fixed section. For safety reasons, the chute must be located on the left side of the blower to increase forward visibility.

• We operate in restricted areas where the operator must have maximum visibility on the right side and in the centre. Having a chute on the left will allow us to perform our jobs safely.

Specification # 3.5: It remains unchanged, but we are stating the reasons for that:

• The radiator must be installed on the left side of the machine (centre side of the street).^[9]

• The snow removal plan, and more importantly the operational requirements of DRDC-Valcartier, require the radiator to be on the left side of the unit.

Specification # 3.10.2: It remains unchanged, but we are stating the reasons for that:

• The hood is made of a single piece and tips to the “street” side. It is counterbalanced with a spring system allowing one man to tip it completely.

• The snow removal plan, and more importantly the operational requirements of DRDC-Valcartier, require the radiator to be on the left side of the unit.^[10]

[Translation]

16. On November 12, 2014, R.P.M. filed its complaint with the Tribunal, alleging that these four specifications favour another manufacturer.
17. On November 17, 2014, a PWGSC procurement specialist, Mr. Marial Tremblay, called the representative of R.P.M. According to the affidavit signed by Mr. Tremblay and filed as evidence with the Tribunal, the R.P.M. representative mentioned that R.P.M. was able to produce a blower with the radiator located on the left side, as required by Specification 3.5. However, he also allegedly indicated that, since all R.P.M. blowers are designed with radiators, hoods and loading chutes at precise locations, the changes required by PWGSC will cause additional production costs that will have the effect of rendering its proposal uncompetitive.^[11]
18. On November 26, 2014, PWGSC published a second amendment to the RFP to postpone the closing date of the RFP to December 15, 2014. On December 9, 2014, PWGSC published a third amendment to the RFP, in order to postpone the closing date again, this time to January 15, 2015.
19. Finally, on December 22, 2014, PWGSC published a fourth amendment to the RFP. PWGSC then eliminated one of the specifications contested by R.P.M., namely, Specification 2.8, which provided that the length of the blower from the hitch plate should be a maximum of 82 inches, to replace it with the following specification:

By submitting its bid, the contractor attests that the dimensions and weight of the proposed snowblower conform to the tipping load of the John Deere loader model 544K. At the contractual authority’s request, the contractor will have to prove by calculation or by demonstration that the proposed dimensions and weight of the snowblower conform to the tipping load of the John Deere loader model 544K.^[12]

[Translation]

ANALYSIS

20. Subsection 30.14(1) of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of the complaint. The issue is to determine whether the technical specifications contested by R.P.M. are too restrictive and favour a specific manufacturer.
21. Section 11 of the Regulations provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, in this instance, are the Agreement on Internal Trade,^[13] the North American Free Trade Agreement,^[14] the Canada-Chile Free Trade Agreement,^[15] the Canada-Colombia Free Trade Agreement^[16] and the Canada-Panama Free Trade Agreement.^[17] The other trade agreements potentially applicable, namely, the Agreement on Government Procurement^[18] and the Canada-Peru Free Trade Agreement,^[19] do not apply in this case since the estimated value of the procurement ($100,000) is less than the minimum value established in those trade agreements for the purchase of goods by a federal entity.
22. Article 504(3)(b) of the AIT prohibits the biasing of technical specifications in favour of, or against, particular goods or services, or the suppliers of such goods or services, for the purpose of avoiding the obligations of Chapter Five.
23. Article 1007(1) of NAFTA provides as follows:

Each Party shall ensure that its entities do not prepare, adopt or apply any technical specification with the purpose or the effect of creating unnecessary obstacles to trade.

24. Article 1009(2)(b) of NAFTA provides as follows:

2. The qualification procedures followed by an entity shall be consistent with the following:

. . .

b. conditions for participation by suppliers in tendering procedures . . . shall be limited to those that are essential to ensure the fulfillment of the contract in question;

25. The other applicable trade agreements contain similar provisions to those found in NAFTA. To resolve the issue, the Tribunal will therefore limit its analysis to the above-mentioned provisions.
26. The Tribunal has stated repeatedly that the federal government has the right to define its procurement requirements, to the extent that they meet its operational requirements.^[20] The Tribunal’s jurisprudence also indicates that the federal government is not obliged to compromise its legitimate operational requirements to accommodate the special circumstances of a potential supplier or to meet suppliers’ requirements^[21].
27. Moreover, the Tribunal has indicated that an invitation to tender is not necessarily discriminatory if the bidders are not on an equal footing when they participate in a bidding procedure. Some competitive advantages for certain suppliers over others may arise from the fact that a company holds a contract or intellectual property rights, or from other commercial factors.^[22]
28. These principles were applied by the Tribunal in Almon Equipment Limited, in which the plaintiff alleged, like R.P.M. in this instance, that the requirements of the invitation limited competition, were excessively restrictive and biased, and had prevented it from bidding. The Tribunal stated, inter alia, the following:

Again, the Tribunal is of the view that Canada has the right to define its procurement requirements, taking into account its legitimate operational requirements. Almon has not presented evidence demonstrating that the requirements of the procurement at issue are discriminatory, impossible to meet or unreasonable. There is also no evidence on the record that could suggest that PWGSC included the requirements at issue in order to deliberately exclude Almon or to favour the incumbent supplier. In the absence of positive evidence in this regard, the fact that Almon cannot presently meet these requirements only means that they are outside the scope of Almon’s capabilities, not that the requirements are inconsistent with the applicable trade agreements.^[23]

29. The Federal Court of Appeal confirmed the validity of the Tribunal’s reasoning when it rejected the application for judicial review that had been filed against this decision:

We would only add that we agree with the [Tribunal] that the fact that one bidder is better able than another to meet the specifications of an RFP does not in itself necessarily mean that the requirements of the RFP are biased in favour of that bidder. We also agree that the purchaser of goods or services has the right to determine the requirements needed for bidders to meet its legitimate operational requirements, subject to the limits imposed by the applicable trade agreements to ensure fair competition in public procurement.^[24]

30. Therefore, to prevail in this case, R.P.M. had to present compelling evidence to demonstrate that the contested technical specifications do not reflect the legitimate operational requirements of DRDC-Valcartier, but rather were included in the RFP to exclude it deliberately from the tendering process or to favour another potential supplier. The mere fact that another potential supplier is more able to meet the technical specifications in question is in itself not sufficient for the Tribunal to conclude that the procurement process is inconsistent with the relevant provisions of the applicable trade agreements.
31. In view of the evidence on the record, the Tribunal finds that R.P.M. did not discharge itself of this burden. In fact, the Tribunal finds that specific concerns, which arise from the legitimate operational requirements of DRDC-Valcartier regarding snow removal, justify the inclusion of the technical specifications in question to ensure that the blower is capable of performing the required snow removal operations suitably and that the chosen supplier is thus able to perform the contract satisfactorily.
32. First of all, the Tribunal accepts PWGSC’s arguments that DRDC-Valcartier’s snow removal requirements involve a specific type of snow removal, which is necessitated by the conduct of tests and trials under winter conditions and in an unusual environment, for example, in a shooting range cluttered with tank carcasses and in a concrete block enclosure, called an “arena”, where certain explosives tests are conducted. Moreover, the blower must be usable with a loader of a given model. Therefore, it is clear that not all blower models are suitable, but rather a blower with very distinct features.
33. Moreover, it is uncontested that PWGSC determined its operational requirements based on its past negative experience with a blower that did not have the specifications contested by R.P.M. in this case. In this regard, the Tribunal considers that PWGSC’s arguments, according to which different components of the blower must be placed on the left side, in view of the environment in which it will be used, are convincing. For example, it would be unreasonable to prevent PWGSC from requiring that the radiator be located on the left side, given that the blower currently used by DRDC-Valcartier, which has a radiator located on the right side, has been damaged, which has caused costs and delays in snow removal operations. In this context, the Tribunal does not see how it could conclude that the requirement of a blower with a radiator on the left side does not stem from legitimate operational requirements.
34. Moreover, as was the case in Almon Equipment Limited, the Tribunal finds that the preponderance of the evidence does not indicate that PWGSC included the specifications in question to exclude R.P.M. deliberately or to favour another potential supplier. On the contrary, the fact that PWGSC accepted to modify the vast majority of the specifications that R.P.M. initially considered problematic indicates that PWGSC intented to ensure that the procurement process is as competitive as possible. In the Tribunal’s opinion, PWGSC, together with the persons in authority at DRDC-Valcartier, therefore made numerous amendments to ensure that the procurement is open to as many suppliers as possible, without compromising its legitimate operational requirements.
35. PWGSC also explained in Amendment No. 1 to the RFP, and in more detail in its GIR, that due to DRDC-Valcartier’s snow removal plan and unconventional needs, the requirements were formulated to minimize the labour and time dedicated to snow removal operations. It also indicated why, for strategic and operational reasons, it was necessary that some of the blower’s components be located on the left side. The Tribunal sees no reason to question the credibility of these explanations or to doubt their veracity.
36. Consequently, in the absence of sufficiently convincing evidence to call into question the validity of these explanations, let alone to prove them false, the fact that R.P.M. may not currently be able to meet these requirements as well as other suppliers only means that these requirements may not fall within the scope of its abilities or may not correspond to its product line, and not that they are contrary to the applicable trade agreements.
37. On this point, the Tribunal notes that PWGSC filed in evidence an affidavit signed by its procurement specialist in which he states that an R.P.M. representative told him that the company is capable of producing a blower with a radiator on the left side. However, according to the representative, since all R.P.M. blowers are designed with loading chutes, radiators and hoods already installed at predetermined locations, the changes required will result in additional costs for the company that will render its proposal uncompetitive.
38. Although R.P.M. contests these facts in its comments on the GIR, it has not filed an affidavit in support of its representative’s assertions in this regard or to set the record straight. Therefore, in the absence of contrary evidence with the same probative value, the Tribunal must accept PWGSC’s uncontroverted evidence on this question and find that R.P.M. is able to offer a blower with the requested features. Therefore, the Tribunal cannot conclude that the technical specifications in question have the effect of excluding R.P.M. from the tendering process.
39. According to the Tribunal, it thus cannot be said that the specifications contested by R.P.M. are discriminatory, impossible to satisfy or unreasonable. Indeed, the fact that R.P.M., in view of the standard features of its current line of blowers, is not on an equal footing with its competitors to meet the requirements of the RFP is the result of commercial factors, such as the competitive advantages held by other potential suppliers which are able to produce blowers that have the components sought on the left side without having to incur additional costs. This does not mean per se that the procedure is discriminatory or that PWGSC favoured one particular manufacturer in drafting the technical specifications.
40. In sum, the Tribunal finds that the technical specifications in question increase the probability that the contract will be awarded to a supplier capable of offering a blower that meets the requirements, which are based on past experience, and the high reliability the purchasing entity is entitled to require with regard to this procurement due to its legitimate operational requirements. These specifications are not contrary to any of the applicable trade agreements.
41. For the sake of completeness, the Tribunal will now address R.P.M.’s allegations concerning each of the contested specifications.

Specification 2.8

42. As previously noted, this specification was completely replaced by Amendment No. 4 to the RFP. It now consists of an obligation on the part of potential suppliers to provide an attestation that their blower will have an appropriate size and weight to be used with the John Deere loader, model 544K. In its comments on the GIR, R.P.M. submitted that a third party (an engineer working for a distributor of John Deere products) should be asked to confirm the compatibility of the proposed blower with the John Deere loader, model 544K, in order to ensure the impartiality of the selection process.
43. In the Tribunal’s opinion, R.P.M.’s request for a third party to intervene in the evaluation of the proposals appears to constitute a new ground of complaint, which was not filed within the time limits. Indeed, nothing in the complaint accepted for inquiry by the Tribunal indicates that R.P.M. was of the view that a third party’s engineer should be relied upon to verify the compatibility of the blower with the loader. Moreover, R.P.M. was informed of the wording of the new criterion 2.8 on December 22, 2014. If it did not agree with this criterion, it had until January 8, 2015 (10 business days after this criterion became known to R.P.M., according to section 6 of the Regulations), to contest it. The comments on the GIR were filed on January 12, 2015.
44. In any case, even if this ground of complaint was properly before the Tribunal, the trade agreements do not contain provisions requiring a federal entity to rely upon a third party to ensure that the bids comply with the mandatory technical criteria of a request for proposals. In any event, nothing in the wording of Specification 2.8, as amended, is favourable or unfavourable to any supplier in particular. They are all subject to the same requirement to attest that the blower can be used with the John Deere loader already owned by DRDC-Valcartier and, if necessary, at the latter’s request, to demonstrate this by calculation or otherwise.
45. This requirement therefore appears to be neutral and necessary to allow a supplier to perform the contract that will be awarded as a result of the procurement process at issue or to ensure that the blower will perform the snow removal work required. Therefore, the Tribunal finds that this requirement complies with the provisions of the applicable trade agreements.

Specification 3.5

46. According to Specification 3.5, the radiator must necessarily be installed on the left side of the blower. R.P.M. submitted that, (1) even if the radiator is located on the right side, it is protected by robust steel hoods, and its engineering department can provide alternative solutions to the problems identified by PWGSC, but that unfortunately it was not consulted before the RFP was drafted, and, (2) even if the radiator is located on the left side, the gearbox of the model of another supplier, which, according to R.P.M., is preferred by PWGSC, is located on the right and the cover of the box could easily be torn by a piece of shredded metal from the tanks. R.P.M. points out that an adequate snow removal process depends on the operator’s training rather than the features of the blower. R.P.M. also contested the snow removal process as described in the GIR. According to R.P.M., the structure of its blowers can avoid some of the problems identified by PWGSC.
47. The applicable trade agreements do not contain provisions requiring the government institution to consult potential suppliers before drafting the criteria and the specifications of a call for tenders. Therefore, R.P.M. cannot validly complain about the absence of prior consultation.
48. It also warrants emphasizing that the specification requiring a radiator on the left side is manifestly based on the unfortunate previous experience of DRDC-Valcartier, which currently uses a blower with a radiator on the right side, which has been damaged, thus resulting in costs and delays. The particular characteristics of the locations that must be cleared of snow by the blower described in paragraphs 45 to 53 of the GIR (for example, tree branches rubbing against the right side and the necessity of driving past the tanks on the right side of the blower) also demonstrate the reasonableness of this requirement in the circumstances.
49. As for the potential problems raised by R.P.M. concerning the gearbox cover of the blower model allegedly proposed by its competitor, there is no evidence on the record concerning the features of that blower (there are only R.P.M.’s allegations). In any event, there are no specifications in the RFP concerning the location of the gearbox. Therefore, this argument is irrelevant in this instance.
50. Likewise, R.P.M.’s arguments that the snow removal plan and process described by PWGSC are unrealistic and show a lack of knowledge of snow removal or actual practices in this respect are also unfounded. Indeed, there is no evidence demonstrating that such is the case. On the contrary, PWGSC’s requirements regarding the position of the radiator are based clearly and appropriately on the previous snow removal experience of DRDC-Valcartier.
51. Therefore, the Tribunal cannot find that Specification 3.5 is inconsistent with the applicable trade agreements.

Specification 2.13.1

52. According to Specification 2.13.1, the vertical loading chute of the blower must be directional and, for safety reasons, be located on the left side of the blower to increase frontward visibility. R.P.M. submitted that the transverse position of the loading chute has no impact on frontward visibility, since the dimensions of the chutes of the different manufacturers have similar diameters within a few centimetres, and the distance between the operator and the chute is essentially the same, regardless of the manufacturer chosen, and has no impact on visibility. Moreover, according to R.P.M., the argument that the location of the loading chute on the left will increase the operator’s visibility has no technical merit.
53. Regarding the projection of snow beyond the wall of the “arena”, R.P.M. submitted that the chute of its blower elevates up to 157 inches and, depending on the angle of its deflector, the snow will be 188 inches high on the extreme right of the blower and that, therefore, there are no technical problems related to the transverse positioning of the chute of its blower to project snow out of the “arena”.
54. R.P.M.’s allegations are insufficient to convince the Tribunal that Specification 2.13.1 does not reflect the legitimate operational requirements of the contracting authority, that a blower without a loading chute on the left would not create a visibility problem for the operator and would allow snow to be projected out of the “arena” as well as a blower with a loading chute on the left. R.P.M. did not support its allegations with cogent evidence and DRDC-Valcartier must be deemed to know the environment in which the blower will be used and what is necessary to ensure that the snow removal operations are conducted in total safety.
55. Therefore, the Tribunal cannot find that Specification 2.13.1 is inconsistent with the applicable trade agreements.

Specification 3.10.2

56. According to Specification 3.10.2, the blower hood must consist of a single piece and tip toward the “street” side, and thus be accessible from the left side of the blower. It must also be counterbalanced with a spring system allowing one man to tip it completely.
57. PWGSC argued that, in the event of a mechanical breakdown, the operators will have access to the engine only from the left side, because the right side will (potentially) be in contact with the tanks and the “arena” wall. For this reason, it will only be possible to open the hood from the left side (street side) of the blower.
58. R.P.M. submitted that, in any case, the hood cannot be opened in a tight 1-metre space. Moreover, the most common mechanical problem is failure of the bolts, which are generally located on the left side of the blower.
59. Once again, R.P.M. is challenging the contracting authority’s operational requirements by raising potential problems that could arise due to other technical components for which specific requirements are not included in the technical specifications. R.P.M.’s speculative arguments are not sufficient to convince the Tribunal that Specification 3.10.2 is useless, discriminatory, impossible to satisfy or unreasonable.
60. Therefore, the Tribunal cannot find that Specification 3.10.2 is inconsistent with the applicable trade agreements.
61. In view of the foregoing, the Tribunal finds that the complaint is not valid.

COSTS

62. The Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint.
63. In determining the amount of the cost award for this complaint case, the Tribunal considered its Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline), which contemplates classification of the level of complexity of cases on the basis of three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.
64. The Tribunal’s preliminary indication is that this complaint case has a complexity level corresponding to the lowest level of complexity referred to in Annex A of the Guideline (Level 1). The complexity of the procurement was low, as it involved the provision of a single product. The Tribunal finds that the complexity of the complaint was low, as the issues were straightforward and dealt with whether PWGSC used restrictive requirements. Finally, the complexity of the proceedings was low. The issues were addressed by the parties through documentary evidence and written representation, and a hearing was not necessary.
65. Accordingly, as contemplated by the Guideline, the Tribunal’s preliminary indication of the amount of the cost award is $1,150.

DETERMINATION OF THE TRIBUNAL

66. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.
67. 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 R.P.M. 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 $1,150. 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 retains jurisdiction to establish the final amount of the award.