MADSEN POWER SYSTEMS INC.
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2015-047

Determination issued
Friday, April 29, 2016

Reasons issued
Wednesday, May 4, 2016

TABLE OF CONTENTS

• DETERMINATION
• STATEMENT OF REASONS
  • RELEVANT PORTIONS OF THE ITT
  • BACKGROUND TO THE COMPLAINT
  • POSITIONS OF PARTIES
    • PWGSC
    • MADSEN
  • TRIBUNAL ANALYSIS
    • OEM Representation in Canada
    • November 2015 Resulting Contract Award
    • Ability to Perform Within 48 Hours of Notification
    • Clear Identification of Solicitation Requirements
    • Further Review Undertaken Subsequent to Price Evaluation
    • Conclusion
  • COSTS
  • DETERMINATION OF THE TRIBUNAL

 

IN THE MATTER OF a complaint filed by Madsen Power Systems 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

MADSEN POWER SYSTEMS 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.

Jason W. Downey
Jason W. Downey
Presiding Member

The statement of reasons will be issued at a later date.

Tribunal Member: Jason W. Downey, Presiding Member

Counsel for the Tribunal: Jide Afolabi

Complainant: Madsen Power Systems Inc.

Government Institution: Department of Public Works and Government Services

Please address all communications to:

The Registrar
Canadian International Trade Tribunal Secretariat
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

1. On December 16, 2015, Madsen Power Systems Inc. (Madsen) 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 an Invitation to Tender (ITT) (Solicitation No. F7049-150105/A) by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of Fisheries and Oceans, Canadian Coast Guard (CCG), for two auxiliary generator sets for two high‑endurance multi-tasked vessels. The solicitation also included an option to purchase an additional four auxiliary generator sets within 48 months of contract award.
2. Madsen complained that PWGSC did not clearly identify the criteria to be used in the evaluation of bids and, further, incorrectly evaluated its bid. As a remedy, Madsen requested that the resulting contract be awarded to it or, alternatively, that it be awarded its lost profits and lost opportunity throughout the life cycle of the engines that it would have supplied.

RELEVANT PORTIONS OF THE ITT

3. On September 10, 2015, PWGSC issued the ITT. The closing date of the ITT at the time of issuance was October 14, 2015. That closing date was eventually changed to October 21, 2015.
4. On September 29, 2015, PWGSC issued an amendment to the ITT. The amendment appended questions by potential bidders, as well as the answers to those questions as provided by the CCG.
5. The ITT included a number of provisions which are relevant to the complaint. Of particular importance is clause 1.4 of Annex A, “Statement of Requirements”, of the ITT, which provides as follows:

Proposed engine models shall currently be in marine service and shall have Original Equipment Manufacturer (OEM) representation in Canada. The manufacturer’s appointed service organization shall hold a substantial stack of spares and be capable of providing qualified field service representative (FSRs), thorough engine documentation support, and the capability to provide technical support for normal overhaul as well as repair. The service organization shall be capable of delivering these services and parts to St. John’s, NL and Dartmouth, NS within 48 hours of notification by the CCG.

6. In addition, clause 4.2 of Part 4 of the ITT provides as follows:

A bid must comply with all requirements of the bid solicitation to be declared responsive. All mandatory requirements must be met before further consideration is given to any bid. The responsive bid with the lowest evaluated price will be recommended for award of a contract.

7. Annex B of the ITT contains a “yes/no” checklist for the purposes of easily identifying and meeting the mandatory requirements of the solicitation, and that list includes a reference to “OEM sales and service as per 1.4”. Further, clause 5.3 of Part 5 of the ITT required bidders to submit a number of certifications “. . . as part of their bid”, including “[a]ll required information as stated in the mandatory requirement list.”
8. Clause 5.2 of Part 5 of the ITT, on the other hand, can readily be juxtaposed against clause 5.3, in that it provides for a separate list of certifications which “. . . should be submitted with the bid, but may be completed and submitted afterwards” and further indicates that, if not submitted by a bidder as requested, PWGSC will inform the bidder and provide a time frame within which to comply.
9. Thus, the ITT requires two sets of certifications, with one set to be provided as part of the bids submitted by bidders and the other, either as part of bids or after bid submission. Included within the ambit of the certifications to be provided as part of each bid is information regarding all the mandatory requirements of the solicitation.
10. Additionally, clause 5.1 of Part 5 of the ITT provides for the possibility for PWGSC to seek information from bidders in order to verify compliance with any certification. That clause provides as follows:

. . . The Contracting Authority will have the right to ask for additional information to verify bidders’ compliance with the certifications before award of a contract.

11. Annex C1 of the ITT contains the pricing data sheet, and one of the notes within that sheet indicates that “[a]ll mandatory requirements must be met to the satisfaction of the Canadian Coast Guard technical team before any evaluation of price will take place.”

BACKGROUND TO THE COMPLAINT

12. Madsen submitted a bid on October 21, 2015, and proposed auxiliary generator sets manufactured by Moteurs Baudouin, located in France. Madsen’s bid included a letter from Motor-Services Hugo Stamp (MSHS), indicating as follows:

Herewith we confirm that Madsen Power Systems is an authorized agent of Moteurs Baudouin through Motor Services Hugo Stamp, Inc., a Floridian company with its [principal] place of business in Fort Lauderdale, USA.^[2]

13. On October 30, 2015, the CCG’s technical authority wrote to PWGSC, indicating that Madsen’s bid was “fully compliant”. However, at some time subsequent to November 16, 2015, a further evaluation of Madsen’s bid was undertaken, resulting in the conclusion that the bid was in fact non-compliant.
14. On November 24, 2015, PWGSC informed Madsen that it had awarded the resulting contract to Toromont Cat and, further, that Madsen’s bid had been deemed non-compliant. In its letter, PWGSC indicated as follows:

A letter provided in the bid submission package states that Madsen is an authorized sales agent of Motor-Services Hugo Stamp (MSHS), this does not constitute full Original Equipment Manufacturer Representation.

. . . 

MSHS are located in the U.S. and provide OEM representation for Baudouin within the U.S. It is clearly stated in 1.4 that Original Equipment Manufacturer representation is to be in Canada.

. . . 

Madsen, is therefore, a Value Added Reseller (VAR) for MSHS and not an OEM for Baudouin.^[3]

15. On November 26, 2015, Madsen wrote an e-mail to PWGSC, requesting a debriefing with regard to its bid.
16. On December 3, 2015, Madsen met with PWGSC and was debriefed with regard to its bid. The debriefing did not provide the relief sought by Madsen.
17. On December 16, 2015, Madsen filed its complaint with the Tribunal.
18. On December 22, 2015, PWGSC requested an extension with regard to the filing of its Government Institution Report (GIR). The Tribunal granted PWGSC’s request on December 24, 2015, giving PWGSC until January 29, 2016, to file the GIR.
19. On January 29, 2016, PWGSC filed its GIR.
20. On February 10, 2016, Madsen filed its comments on the GIR.
21. On February 22, 2016, PWGSC filed additional submissions with the Tribunal and requested leave of the Tribunal with regard to the acceptance of those submissions, asserting the need to respond to new arguments and new evidence contained in Madsen’s comments on the GIR.
22. On February 26, 2016, the Tribunal decided to grant PWGSC’s leave request and, further, accepted the additional submissions. The Tribunal informed Madsen of its decision on the same day and provided Madsen with three working days in which to respond to those submissions, should it choose to do so.
23. On March 2, 2016, Madsen filed its response to PWGSC’s additional submissions.
24. 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.

POSITIONS OF PARTIES

PWGSC

25. PWGSC took the position that the determination of its evaluators, that Madsen’s bid was non‑compliant, was reasonable because Madsen was required by clause 1.4 of Annex A of the ITT to demonstrate, in its bid, that it had OEM representation in Canada and that Madsen failed in that regard. Further, PWGSC asserted that, contrary to the same provision, Madsen did not demonstrate that it was capable of providing parts and services to St. John’s and Dartmouth within 48 hours of notification. PWGSC indicated that it was only able to elicit information from Madsen regarding its ability to deliver parts and services within 48 hours pursuant to a verification request sent subsequent to the close of the solicitation period.
26. In addition, PWGSC submitted that the following three well-established jurisprudential principles apply to the issues raised by Madsen in its complaint; firstly, that the onus is on a bidder to demonstrate compliance with the mandatory requirements of a solicitation, such that the bidder ought to exercise due diligence and, thus, ensure that its bid is compliant and unambiguous; secondly, that a government institution must evaluate conformity to mandatory requirements by bidders thoroughly and strictly; and thirdly, that the Tribunal’s standard of review regarding determinations by evaluators is “reasonableness”, with a large measure of deference accorded to a reasonable evaluation.
27. As concerns the requirement to exercise due diligence and ensure the submission of a compliant and unambiguous bid, PWGSC noted that “[f]rom October 1 until October 15, 2015, there were a series of email exchanges from the Complainant to PWGSC seeking clarification of the Invitation to Tender and responses were provided. The Complainant did not seek clarification of mandatory requirement 1.4.”^[4]
28. PWGSC admits that, pursuant to an initial evaluation by the CCG’s technical authority, Madsen’s bid was initially deemed fully compliant on October 30, 2015, and that the evaluation was initially confirmed on November 2. 2015. However, upon further review, it was concluded that Madsen’s bid was in fact non-compliant because of the defective Canadian OEM representation component.

MADSEN

29. Madsen took the position that the letter from MSHS, which it included in its bid, was misread by PWGSC. In this regard, Madsen pointed out that, in PWGSC’s November 24, 2015, letter, PWGSC characterized Madsen as “an authorized sales agent” of MSHS, when in fact the letter from MSHS had characterized Madsen as “an authorized agent” of the OEM, Moteurs Baudouin, through MSHS. It is Madsen’s contention that the addition of the word “sales” by PWGSC, the misapprehension of an agency relationship with MSHS and the indication that “. . . this does not constitute full Original Equipment Manufacturer Representation” betrays an inappropriate diminishment of Madsen’s capacity to fully represent Moteurs Baudouin.
30. In addition, Madsen asserted that the statement within MSHS’s letter that Madsen is “. . . an authorized agent of Moteurs Baudouin through Motor Services Hugo Stamp . . .” should suffice, as there is no requirement in the ITT itself concerning the manner in which the appointment of the OEM representative is made. In Madsen’s words, “[w]hether the appointment is made directly by the OEM or through an intermediary is of no relevance. Section 1.4 only requires that there be a representative in Canada.”^[5] Further, Madsen argued that MSHS, as a representative of Moteurs Baudouin in North America, possessed the ability to confer OEM representative status upon Madsen, in Canada, for the purposes of this ITT. In this regard, Madsen included an excerpt from the Web site of Moteurs Baudouin, which refers to MSHS as a “Moteurs Baudouin expert”.^[6]
31. Regarding the indication by PWGSC that the letter by MSHS “. . . does not constitute full Original Equipment Manufacturer Representation”, Madsen asserted that the addition of the word “full” constituted the revelation of a previously undisclosed evaluation criteria.
32. Madsen argued that a party inviting bids has a contractual duty to treat bidders fairly, and that duty includes the obligation not to reject compliant bids and the obligation to award the resulting contract on the basis of the criteria set out in solicitation documents. Additionally, Madsen relied on the Tribunal’s decisions in IBM Canada Ltd.^[7] and ATS Scientific Inc.,^[8] as well as on Article 506(6) of the Agreement on Internal Trade,^[9] with regard to the assertion that the criteria set out in solicitation documents must not be ambiguous. That article provides as follows:

. . . The tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria.

33. Referencing the “yes/no” checklist contained within Annex B of the ITT, Madsen pointed out that it included the checklist in its bid and answered “yes” to each mandatory requirement set out on the list. Madsen also took the position that the reference in the “yes/no” checklist to “OEM sales and service as per 1.4” creates an ambiguity when juxtaposed against clause 1.4 of Annex A of the ITT since there is no mention of “sales and service” in relation to the acronym OEM.
34. Additionally, Madsen argued that the information elicited from it by PWGSC subsequent to the close of the solicitation period, regarding its ability to deliver parts and related services within 48 hours, constituted a verification that falls within the ambit of clause 5.1 of Part 5 of the ITT.
35. Madsen indicated that it was awarded a very similar contract on November 29, 2015, regarding an auxiliary generator for a different high-endurance multi-tasked vessel operated by the CCG, pursuant to a another solicitation process which included a mandatory requirement very similar to provision 1.4 of Annex A of the ITT. Madsen noted that, for the purposes of that solicitation process, it made the same indication—that it was an authorized agent of Moteurs Baudouin through MSHS.
36. Noting that CCG personnel contacted MSHS concerning the “life/rebuild cycle of the Baudouin generator bid by Madsen”^[10] on November 16, 2015, and that it appears that the CCG then requested a meeting with PWGSC on the same day with regard to a further review of Madsen’s bid, Madsen indicated concern that the further review, which occurred two weeks following the evaluation of price, may have been the result of the contact between the CCG and MSHS, with clause 1.4 of Annex A of the ITT serving as a mere pretext. Madsen’s contention is that, as a result, the solicitation may have been tainted and invalidated. On the question of that further review, Madsen has directed the Tribunal to the note contained within Annex C1 of the ITT, which the Tribunal referenced earlier in these reasons.

TRIBUNAL ANALYSIS

OEM Representation in Canada

37. Should the Tribunal cast the primary question in this complaint as Madsen would have it, that question would be whether the appointment of a representative through an intermediary, MSHS, suffices for the purposes of clause 1.4 of Annex A of the ITT.
38. On this matter, the Tribunal notes, from the outset, that the available evidence does not support the conclusion that Madsen’s bid included a clear indication of “. . . Original Equipment Manufacturer (OEM) representation in Canada” either by Moteurs Baudouin directly or specifically through MSHS. Instead, what can be concluded from Madsen’s bid is that a third party located outside Canada, specifically MSHS, purports, of its own assertion, to present Madsen as a representative of Moteurs Baudouin, without any supporting evidence to this effect. In fact, the silence of Moteurs Baudouin is a remarkable feature of the record for this complaint.
39. In File No. PR-2012-012,^[11] the Tribunal made the following clear:

. . . there is an onus on bidders to demonstrate compliance with mandatory criteria. The Tribunal has stated that the responsibility for ensuring that a proposal is compliant with all essential elements of a solicitation ultimately resides with the bidder. Accordingly, it is incumbent upon the bidder to exercise due diligence in the preparation of its proposal to make sure that it is compliant in all essential respects.

[Footnotes omitted]

40. Further, the Tribunal indicated in File Nos. PR-2013-005 and PR-2013-008 that “. . . it is incumbent upon the bidder to exercise due diligence in the preparation of its proposal to ensure that it is unambiguous and properly understood by PWGSC.”^[12]
41. Thus, the requirement to demonstrate compliance cannot be abridged or left to inference. Since clause 1.4 of Annex A of the ITT requires that proposed generator sets have “. . . (OEM) representation in Canada” and, in its second sentence, makes specific reference to the “. . . manufacturer’s appointed service organization . . .”, it would have been erroneous for PWGSC to accept the unilateral pronouncement of a third party, uncorroborated by the OEM, that Madsen is an authorized agent of the OEM in Canada.
42. Clause 1.4 of Annex A of the ITT must be read as a whole and given a legitimately reasonable understanding. In light of its wording, it is imperative that the OEM be heard in some manner. This could have been accomplished by way of direct appointment of Madsen by the OEM as its authorized agent. It could also have been accomplished by way of an indication by the OEM itself that MSHS is an authorized agent and, as part of that agency, is specifically competent to further authorize an entity such as Madsen as an agent in Canada. It could also have been accomplished by way of the direct corroboration by the OEM of the statement by MSHS that Madsen is an authorized agent in Canada. None of these options were secured by Madsen.
43. In a context requiring OEM representation, and pursuant to which Madsen provided a third party’s uncorroborated statement, PWGSC’s indication that the statement “. . . does not constitute full Original Equipment Manufacturer Representation” is not the revelation of a previously undisclosed evaluation criterion. In this instance, “full” OEM representation is effectively what clause 1.4 of Annex A of the ITT requires. That provision does not in any way circumscribe or delimit the requirement contained within it. Thus, while OEM representation may be secured in any of the ways listed above, or perhaps in some other fashion, it is imperative that it be secured, in that the OEM is heard to speak.
44. As Madsen has thus failed on this primary question, the Tribunal can readily conclude that its complaint is not valid. However, Madsen raised a number of secondary questions which the Tribunal will nonetheless consider out of thoroughness.

November 2015 Resulting Contract Award

45. Regarding Madsen’s indication that it was an authorized agent of Moteurs Baudouin through MSHS in the context of an earlier solicitation process and that it won that process,^[13] PWGSC has replied that Madsen in fact provided a letter from Moteurs Baudouin as part of that solicitation. Within that letter, Moteurs Baudouin directly appoints Madsen as its authorized agent in Canada.^[14] However, in its response to PWGSC’s reply, Madsen made clear that it “. . . did not submit a letter from MSHS or Baudouin . . .”^[15] with regard to that other solicitation process until after it had been informed of its non-compliance in this ITT process.
46. While the other solicitation process closed on November 10, 2015, Madsen’s indication is that it provided the letter from Moteurs Baudouin on November 27, 2015, of its own accord, subsequent to being informed of its non-compliance in this ITT process. Madsen additionally stated that, on November 27, 2015, only shortly after providing the letter from Moteurs Baudouin, it was informed that the resulting contract in the other solicitation was “. . . nearly ready to go”^[16]. Madsen surmises that the letter from Moteurs Baudouin probably had no impact on the evaluation of that other solicitation since it appears that evaluations had already concluded and that it had been awarded a contract by the time that letter was submitted.
47. It is important to note that, if these additional facts emerging from another solicitation related to a question before the Tribunal, to the extent that Madsen did not meet the mandatory requirement regarding OEM representation for that other solicitation, it is quite possible for the Tribunal to conclude that the evaluators did not apply themselves and wrongly interpreted the scope of a requirement for that bid.
48. The outcome in that solicitation process cannot rescue or redeem the facts in the present case. The assertion that a prior solicitation process was possibly unfair cannot be used to ground the conclusion that the trade agreements should somehow be ignored. The prior solicitation process is distinct and separate from the current one, and its outcome cannot prejudice proper evaluation regarding the current one. Further, the Tribunal finds it necessary to express some concern over the revelation that PWGSC awarded a resulting contract to a bidder—Madsen—which either may not have met all the mandatory requirements of the preceding solicitation process or may have repaired its bid regarding that process. However, the Tribunal cannot inquire further, as the facts in that solicitation process do not form the subject matter of this ITT process.^[17]

Ability to Perform Within 48 Hours of Notification

49. Apart from the requirement regarding OEM representation in Canada, clause 1.4 of Annex A of the ITT also stipulated that the bidder:
    • hold a substantial stock of spare parts;
    • be able to provide qualified field service representatives and thorough engine documentation support;
    • be able to provide technical support for normal overhaul and repair; and
    • be able to deliver the spare parts and the services to St. John’s and Dartmouth within 48 hours of notification.

50. Even if the evidentiary basis exists, such that the Tribunal can conclude that Madsen’s complaint regarding OEM representation is valid, Madsen’s bid must nevertheless be deemed non-compliant, as it did not affirm or demonstrate in its bid that it could meet the requirement concerning the ability to perform within 48 hours of being notified. Rather, that information was elicited from Madsen by PWGSC subsequent to the close of the solicitation period, pursuant to a verification request.
51. As earlier indicated, the ITT requires two sets of certifications. Those set out in clause 5.2 of Part 5 may be provided after bid submission, while those set out in clause 5.3—including the entirety of the mandatory requirement list—were to be provided as part of the bids submitted by bidders. Additionally, clause 5.1 indicates that PWGSC can “. . . ask for additional information . . .” from bidders to verify compliance with any certification. The result is that, while the requirements in both clauses 5.2 and 5.3 may be the subject of verification by PWGSC, a bidder must already have information within its bid that fully addresses the requirements in clause 5.3; it is only with regard to the requirements in clause 5.2 that a bidder may submit such information after it has submitted its bid.
52. It is worth noting that to verify is to make sure, that is, to authenticate, clarify, corroborate, seek demonstration or substantiate.^[18] As a result, verification assumes the prior existence of submitted information addressing a mandatory requirement and aims to ascertain the location or veracity of that information. When, in an attempt by a government institution at verification, a bidder submits information that addresses a mandatory requirement for the very first time, that information cannot, in the absence of an enabling provision in the solicitation documents, be added to or used to modify the bidder’s proposal. Such an addition or modification would constitute bid repair, which undermines the integrity of the competitive procurement process and is patently unfair to other bidders.^[19]
53. The fact that it appears that PWGSC did not, in addition to the issue concerning OEM representation, also premise its decision regarding Madsen’s non-compliance on the absence of information in its bid regarding its ability to perform within 48 hours of being notified does not render that mandatory requirement inoperative. Rather, it is indicative of a possible failure on the part of PWGSC to evaluate Madsen’s conformity to that specific mandatory requirement thoroughly and strictly. While the lack of an indication regarding the ability to perform within 48 hours may not be the Tribunal’s primary concern, as it did not serve as a basis of Madsen’s complaint, it is relevant in the context of the overall evaluation of submitted bids and serves the proper conclusion that Madsen’s bid appears to have been non-compliant with regard to more than one mandatory requirement.
54. Further, while Madsen answered “yes” to each mandatory requirement listed on the “yes/no” checklist, that fact alone cannot suffice with regard to the indication in clause 4.2 of Part 4 of the ITT that “[a]ll mandatory requirements must be met before further consideration is given to any bid.” Otherwise, bidders could simply answer “yes” to every item on the list and not otherwise indicate how or in what manner mandatory requirements have been met. PWGSC would then be put in the position of having to verify compliance regarding each “yes”, such that the verification process would effectively become a repeat of the bid submission itself; onus on bidders to submit compliant bids would as such be bereft of relevance. Instead, such a checklist must be seen more as a guide, as much to evaluators in assessing the bid as to bidders in the fulfillment of their obligations.

Clear Identification of Solicitation Requirements

55. The Tribunal cannot accept Madsen’s further assertion that the reference in the mandatory requirements list to “OEM sales and service as per 1.4” creates an ambiguity when juxtaposed against clause 1.4 of Annex A of the ITT. The construction of a list often includes considerations regarding brevity. The specific list in question briefly but clearly indicates “as per 1.4” and, thus, directs the reader to seek out any clause or provision “1.4” in the ITT. Ultimately, the ITT contains a single provision “1.4”, which indeed concerns the OEM. It is additionally noteworthy that clause 1.4 refers to “[p]roposed engine models . . . .” The ITT invites proposals regarding the sale of engine models. Also, clause 1.4 refers to the “. . . manufacturer’s appointed service organization . . . .” The ITT requires the ability to service engine models that are sold by a bidder. Thus, the Tribunal can readily conclude that the phrase “OEM sales and service as per 1.4” is entirely unambiguous when juxtaposed against clause 1.4.
56. However, even if those two indications in the ITT resulted in ambiguity, Madsen would be unable to rely on the Tribunal’s reasoning in IBM or in ATS since it can readily be concluded that such an ambiguity would be immediately apparent to a reader of the ITT. The Tribunal’s jurisprudence establishes a distinction between two types of ambiguities—latent ambiguities, which are not apparent on the face of solicitation documents and thus emerge in the context of the evaluation of bids, and patent ambiguities, which are apparent on the face of solicitation documents.^[20]
57. The two decisions referenced above, on which Madsen seeks to rely, pertain to instances of latent ambiguity, instances pursuant to which bidders may construe ambiguous mandatory requirements reasonably. In contrast, the Tribunal has repeatedly indicated and the Federal Court of Appeal has affirmed that, in instances of patent ambiguity, as is argued here by Madsen, a bidder must seek a clarification of what the solicitation documents require during the solicitation period or otherwise file a timely complaint with the Tribunal.^[21] It is noteworthy that bidders did ask questions during the solicitation period, and the answers proffered by PWGSC were appended to the ITT as an amendment. It was open to Madsen to act similarly with specific regard to what it purports is an ambiguity; however, it did no such thing. A bidder cannot ignore such a matter, proceed to file its bid and then complain about it afterwards. It must remain diligent at all times during the bid process.

Further Review Undertaken Subsequent to Price Evaluation

58. Madsen has alleged that communication between the CCG and MSHS, purportedly regarding a criterion not included as a mandatory requirement of the ITT, may have tainted and invalidated the solicitation process, in that it led to the further review of its bid, with clause 1.4 of Annex A of the ITT serving as a mere pretext. Further, Madsen has asserted that the further review was not in keeping with the terms of the ITT and further created the perception that the criteria for compliance were not fairly applied, because it occurred subsequent to the evaluation of price.
59. The Tribunal notes that the further review of Madsen’s bid commenced with an e-mail dated November 16, 2015, and time stamped 9:38 a.m., in which an official of the CCG requested a meeting with an official of PWGSC. A short e-mail exchange ensued between those officials and, by way of an e-mail time stamped 1:56 p.m. on the same day, a meeting was confirmed.^[22] In contrast, the information on the record shows that, by way of an e-mail dated for the same day and time stamped 7:48 p.m., Madsen was informed by an account manager of MSHS that he “. . . finally got in touch . . .” with an official of the CCG, who “. . . reached out . . . to find out the life/rebuild cycle of . . .” the auxiliary generator sets proposed by Madsen.^[23]
60. There is no indication on the record regarding when the contact between MSHS and the CCG actually occurred. Thus, the Tribunal is unable to conclude that rather than the occurrence of these facts on the same day constituting a coincidence, the contact between MSHS and the CCG occurred prior to, and influenced or informed the further review of Madsen’s bid. In fact, should the Tribunal accept the e-mail time stamped 7:48 p.m. as indicative of the time at which contact between MSHS and the CCG occurred, the conclusion must be that the contact occurred after the evaluators had already agreed to meet to discuss a further review of Madsen’s bid.
61. In addition, there is no evidence on the record regarding whether and how a consideration of the “life/rebuild cycle” of auxiliary generator sets that meet the solicitation requirements constitute undisclosed criteria. As a result of these shortcomings, the Tribunal cannot conclude that communication between the CCG and MSHS tainted and invalidated the solicitation process. Furthermore, the Tribunal finds it useful to remark that any undue focus on Madsen by PWGSC, with the objective of finding a mere pretext for concluding that its bid is non-compliant, would readily have been stymied if Madsen’s bid was actually compliant in all essential respects.
62. For the purpose of contrast, the Tribunal finds it useful to briefly set out the tests for a reasonable apprehension of bias and for actual bias, which Madsen was required to meet with regard to its insinuation. In Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services),^[24] the Federal Court of Appeal opined that “[t]he duty of impartiality is normally not limited to actual bias. Thus, in order to prove a breach of the duty to be impartial a litigant need not show that the decision-maker in fact allowed the decision to be influenced by an extraneous factor, such as friendship with, or personal hostility towards, a participant in the process”^[25] [emphasis added].
63. Further, with regard to a reasonable apprehension of bias, the Supreme Court of Canada in Bell Canada v. Canadian Telephone Employees Association^[26] indicated that the test is whether “. . . an informed person, viewing the matter realistically and practically, and having thought the matter through . . .”^[27] would think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly. Madsen has failed to meet either test. There is no evidence on the record supportive of the conclusion that PWGSC allowed its decision to be influenced by an extraneous factor, and there is no evidence that it is likely that PWGSC did not administer the solicitation process fairly.
64. This leaves Madsen’s assertion that the further review of its bid was not in keeping with the terms of the ITT because, contrary to Annex C1 of the ITT, it occurred subsequent to the evaluation of price. The further review of Madsen’s bid resulted in the correction of an error made during the evaluation process. The Tribunal has, in the past, concluded that complaints were valid because of contract awards premised on errors made by evaluators^[28] and has opined that evaluators must also be able to correct such errors within the confines of the terms of solicitations and in a manner that preserves the integrity of the competitive procurement process.^[29]
65. In the present instance, it is noteworthy that PWGSC did not itself stipulate erroneous terms in the ITT. Rather, PWGSC erroneously deemed Madsen’s non-compliant bid as compliant. It is also noteworthy that, in the first instance, PWGSC satisfied itself—albeit erroneously—that mandatory requirements had been met before undertaking an evaluation of price. Additionally, it should be noted that, upon discovering its error, PWGSC acted fairly and in good faith by finding Madsen’s bid non-compliant, despite the fact that Madsen had proposed the lowest price.^[30] A failure on the part of PWGSC to disqualify Madsen upon the discovery of that error would have been unfair to the other bidders and could thus have served as a prima facie indication of a breach of the trade agreements. Yet, an indication by PWGSC that it would cancel the solicitation process and commence a new process could itself have unduly benefited Madsen. The receipt of a debriefing by Madsen, regarding the failure to award it the resulting contract on the basis of its purportedly compliant bid, would be within Madsen’s rights. Such a debriefing would effectively assist Madsen in repairing its bid for the purposes of the new process, which would pertain to the same resulting contract, rather than assisting it in improving its bid for a different process and resulting contract. Thus, the only procedurally fair process open to PWGSC that would see it act within the confines of the terms of the solicitation and simultaneously preserve the integrity of the competitive procurement process was to deem Madsen’s bid non-compliant.
66. The conclusion that a perception was created that the criteria for compliance were not fairly applied would be relevant if, for example, PWGSC had overlooked minor non-compliance in other bidders’ bids or knowingly interpreted terms in a manner more likely to render Madsen’s bid non-compliant. In essence, a thorough and strict evaluation cannot ground such a conclusion and, in this instance, there are no facts on the record supportive of that conclusion. Madsen bore the onus of demonstrating compliance with the mandatory requirements of the solicitation, and PWGSC’s onus was the meticulous evaluation of Madsen’s conformity to those mandatory requirements.^[31]

Conclusion

67. In view of the foregoing, the Tribunal finds that the complaint is not valid.

COSTS

68. PWGSC requested that it be awarded its costs incurred in responding to the complaint. The Tribunal grants PWGSC those costs.
69. In accordance with the Procurement Costs Guideline (the Guideline), the Tribunal’s preliminary indication of the level of complexity for this complaint case Level 1. Thus, PWGSC’s cost award is in the amount of $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 Tribunal, as contemplated by article 4.2 of the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the cost award.

DETERMINATION OF THE TRIBUNAL

70. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.