LE GROUPE CONSEIL BRONSON CONSULTING GROUP
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2016-058

Determination and reasons issued
Friday, June 23, 2017

TABLE OF CONTENTS

• DETERMINATION
• STATEMENT OF REASONS
  • INTRODUCTION
  • SERVICES UNDER THE RFP
  • PROCUREMENT PROCESS
  • PRELIMINARY ISSUES
    • Cancellation of the Original RFP
    • Allegations of Evidentiary Shortcomings
    • Remedied Grounds of Complaint
  • ANALYSIS
    • Bias
    • Disclosure of Confidential Information
  • REMEDY
  • COSTS
  • DETERMINATION

 

IN THE MATTER OF a complaint filed by Le Groupe Conseil Bronson Consulting Group 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

LE GROUPE CONSEIL BRONSON CONSULTING GROUP 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 valid in part.

Pursuant to subsections 30.15(2) and 30.15(3) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal recommends that the Department of Public Works and Government Services provide further disclosure of the information identified by Le Groupe Conseil Bronson Consulting Group regarding Section 1.3, Summary of Part 1, General Information, of the solicitation in issue, if any such data exists, or provide an explanation as to why the data in issue is not available.

Each party shall bear its own costs in relation to the proceedings. If any party disagrees with the cost decision, it may make submissions to the Canadian International Trade Tribunal, as contemplated by Article 4.2 of the Procurement Costs Guideline. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of the award, if any.

Peter Burn
Peter Burn
Presiding Member

Tribunal Panel: Peter Burn, Presiding Member

Support Staff: Alexandra Pietrzak, Counsel
Dustin Kenall, Counsel

Complainant: Le Groupe Conseil Bronson Consulting Group

Counsel for the Complainant: Peter Mantas
Christopher McLeod

Government Institution: Department of Public Works and Government Services

Counsel for the Government Institution: Roy Chamoun
Susan Clarke
Ian McLeod
Gabrielle Medeiros-LeBlanc

Please address all communications to:

The Registrar
Secretariat to the 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

INTRODUCTION

1. On February 16, 2017, Le Groupe Conseil Bronson Consulting Group (Bronson) 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 proposal (RFP) for services for Visa Application Centres (VAC) (Solicitation No. B8694-150140/D). The RFP was issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Citizenship and Immigration (IRCC). The RFP in issue (the current RFP) replaced a previous RFP (the original RFP) for the same services, which was cancelled by PWGSC.
2. Bronson alleged the following:
   • the provisions of the current RFP are biased, as they are structured to favour incumbent contract holders;
   • PWGSC or IRCC improperly disclosed certain confidential information Bronson submitted in response to the original RFP to a competing bidder, thereby prejudicing Bronson’s ability to compete for the current RFP; and
   • PWGSC had improperly cancelled the original RFP.
3. On February 17, 2017, the Tribunal decided to conduct an inquiry into Bronson’s first two grounds of complaint, having determined they met the requirements under 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] However, the Tribunal informed Bronson that it would not inquire into the third ground of complaint as that ground was not filed within the time frames provided for in section 6 of the Regulations, and therefore was not timely.^[3]
4. The parties filed substantial documentation with the Tribunal, including a Government Institution Report (GIR), Bronson’s submissions on the GIR, and further round of submissions regarding additional documentation filed by PWGSC.
5. On its own initiative, the Tribunal set aside a tentative date for a possible oral hearing; however, it was subsequently cancelled due to Bronson’s request for an extension of time to file its reply to the GIR.^[4] Neither party contended that an oral hearing was necessary, or requested that a new hearing date be set.
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 necessary and disposed of the complaint on the basis of the written information in the record.

SERVICES UNDER THE RFP

7. In order to understand the grounds of complaint, it is useful to briefly describe the nature of services sought under the RFP.
8. The VAC network was created by IRCC to provide assistance to persons seeking to apply for Canadian visas. It was created to address problems of applicant access due to high local volume demand or geographical accessibility, and is operated on a contractual basis through service providers.
9. In particular, VAC operators collect biometric information (photographs, fingerprints) of foreign nationals making an application to come to Canada. They also offer additional services to applicants, such as assistance in the completion of applications and facilitating the transfer of original documents (such as passports) to the IRCC-specified visa offices, which ultimately make the necessary determinations with respect to the visa applications.
10. VFS Global (VFS) and CSC Canada (CSC) are the incumbent VAC operators.

PROCUREMENT PROCESS

11. On March 15, 2016, PWGSC issued the original RFP for VAC services.
12. Five bidders submitted responses to the original RFP.
13. On August 23, 2016, PWGSC informed Bronson that is was ready to proceed with the Financial Capability Assessment phase of the bid evaluation, as set out in the original RFP.
14. On October 5, 2016, PWGSC cancelled the original RFP, and advised all bidders that it would be retendered.
15. Between October 5 and 6, 2016, PWGSC and Bronson exchanged correspondence regarding the cancellation of the original solicitation.
16. On November 2, 2016, Bronson commenced an Application for Judicial Review in the Federal Court with respect to the decision to cancel the original RFP.
17. On December 1, 2016, Bronson’s principal, Mr. David Baird, had a conversation with Mr. Peter Nutt, the CEO of CSC, during which it became apparent that CSC was aware of certain confidential information contained in Bronson’s bid response to the original RFP.
18. On January 12, 2017, PWGSC issued the current RFP.
19. On January 26, 2017, Bronson sent a letter to PWGSC objecting to certain elements of the technical requirements in the current RFP.
20. On February 7, 2017, PWGSC informed Bronson that it was reviewing the objections, and would provide a response in due course.
21. On February 16, 2017, Bronson filed this complaint with the Tribunal.
22. On February 17, 2017, the Tribunal decided to conduct an inquiry into two of Bronson’s three grounds of complaint.
23. Between January 24, 2017, and April 19, 2017, PWGSC issued 10 amendments to the current RFP.

PRELIMINARY ISSUES

Cancellation of the Original RFP

24. Bronson became aware of the cancellation of the original RFP on October 5, 2016, but did not submit its complaint with the Tribunal until February 16, 2017. The Tribunal stated it would not inquire into that ground of complaint, since Bronson’s contention that the original RFP was improperly cancelled was not timely.^[5] A substantial portion of the parties’ submissions were dedicated to the cancellation of the original solicitation. Nevertheless, the Tribunal will not comment on the legitimacy of PWGSC’s decision to cancel the original RFP, since this ground of complaint was not accepted for inquiry, and the issue is currently before the Federal Court..

Allegations of Evidentiary Shortcomings

25. In its reply to the GIR, Bronson alleged that PWGSC “has made selective and insufficient disclosure” in these proceedings.^[6] As evidence for this allegation, Bronson pointed to the fact that only one set of notes of a telephone call was filed by PWGSC, while “logic dictates” that other notes must exist.^[7] In addition, Bronson contended that PWGSC “has failed to disclose certain documents that are relevant to issues in this proceeding, which it disclosed before the Federal Court of Canada in relation to the original solicitation.”^[8] As a result, Bronson asked that the Tribunal draw an adverse inference against PWGSC and, where any ambiguity in the record arises from the non-disclosure, interpret that ambiguity against PWGSC.
26. There are several difficulties with Bronson’s argument. First, Bronson made no attempt to explain the importance of these documents, or how or why they may be relevant. Bronson simply states the documents are “relevant to issues in this proceeding” without providing any elaboration.^[9] Nor did Bronson explain why it chose not to file the allegedly relevant documents, having had access to the documents filed before the Federal Court. Equally as problematic, when Bronson realized these documents were not produced with the GIR (including notes of telephone conversations, which may or may not exist), it had the option to request their disclosure. It chose not to do so.
27. Given the foregoing, and in particular noting that the relevancy of the documents has not been established, the Tribunal will not draw an adverse inference as requested by Bronson.

Remedied Grounds of Complaint

28. There were several grounds of complaint advanced by Bronson which were subsequently remedied by actions taken by PWGSC during the course of the inquiry. For instance, Bronson contended that rated requirement 2.2 (IT Network Upgrade) was biased in favour of the incumbents, while rated requirements 3.1.2 and 3.2.1 contained language which was vague or undefined. However, rated requirement 2.2 was subsequently deleted by PWGSC, as was the language at issue in rated requirements 3.1.2 and 3.2.1. As a result, these aspects of Bronson’s complaint are no longer in issue.
29. Similarly, Bronson alleged that rated requirements 3.1.2, 3.2.2, and 4.2 asking bidders to submit sample corrective action plans and appointment scheduling services unfairly advantage the incumbents, as they will already have tailored action plans and scheduling services information they can submit. By contrast, Bronson argued that non-incumbents will have to develop the sample plans and scheduling services under extremely tight timelines. However, PWGSC subsequently extended the solicitation closing date by approximately one full month.^[10] As such, the Tribunal finds that the extension effectively remedied Bronson’s complaint that the timelines for responding to these requirements is too short.

ANALYSIS

30. Subsection 30.14(1) of the CITT Act requires that, in its inquiry, the Tribunal limit its considerations to the subject matter of the complaint. Moreover, at the conclusion of the inquiry, the Tribunal must determine whether the complaint is valid on the basis of whether the procurement process was followed in accordance with the relevant trade agreements, which in this case are the Agreement on Internal Trade^[11] and the North American Free Trade Agreement.^[12]
31. The grounds of complaint accepted for inquiry are as follows:
    • the provisions of the current RFP are biased, as they are structured to favour incumbent contract holders;
    • PWGSC or IRCC improperly disclosed certain confidential information Bronson submitted in response to the original RFP to a competing bidder, thereby prejudicing Bronson’s ability to compete for the current RFP.

Bias

32. In its complaint, Bronson identified several provisions in the current RFP which had either been amended from the original RFP, or were entirely new to the current RFP. Bronson asserted that these new or amended requirements favour the incumbent contract holders and demonstrate bias. The provisions in issue are as follows:

    Example 1	Rated requirement 2.2: IT Network Upgrade (no longer in issue)
    Example 2	Section 5.2.5: Configuration Management Process
    Example 3	Rated requirement 3.1.2: Corrective Action Plan
    Example 4	Rated requirement 3.2.1: Security Screening Process
    Example 5	Rated requirement 3.2.2: Corrective Action Plan
    Example 6	Rated requirement 4.1: Information Services – Website
    Example 7	Rated requirement 4.2: Appointment Scheduling Service
    Example 8	Section 1.3, Summary: Biometric Equipment Deployment
    Example 9	Section 1.3, Summary: Volume Data
    Example 10	Annex J, Section 15 (rated requirement 5.2 of the original RFP)

33. Article 504(3)(b) of the AIT prohibits

    the biasing of technical specifications in favour of, or against, particular goods or services, including those goods or services included in in construction contracts, or in favour of, or against, the suppliers of such goods or services for the purposes of avoiding the obligations of this Chapter.

    Similarly, Article 1008(1) of NAFTA requires tendering procedures to be carried out in a non-discriminatory manner.

34. The Tribunal has repeatedly held that the government institution is entitled to define its legitimate operational requirements, though it must do so reasonably, and may not establish conditions that are impossible to meet.^[13] So long as these conditions are met, the Tribunal held that there is no obligation to structure a procurement to accommodate any particular supplier.^[14] Moreover, the Tribunal found that, while certain bidders may have a competitive advantage regarding a particular procurement process, it does not necessarily follow that the solicitation is biased. Rather, such advantages may simply be “part of the ordinary ebb and flow of business”.^[15] The Tribunal noted that competitive advantages could arise from incumbency,^[16] but that, “in itself, [this] is normal and is not considered to be unfair.”^[17] In addition, the Tribunal noted that “there is no obligation to offset the effect of incumbency in the formulation of solicitations . . . .”^[18]
35. Finally, when applying Article 504(3)(b) of the AIT, the Tribunal has held that, in order to establish bias, the complainant must establish that the government institution deliberately structured the procurement to favour a particular supplier, or to exclude a particular supplier.^[19]
36. In its submissions, Bronson has attempted to link PWGSC’s rationale for cancelling the original solicitation with its allegations that the amended terms of the current RFP are biased. For example, Bronson argued that the changes to the terms of the current RFP were not “rationally connected” to PWGSC’s contention that the original solicitation was cancelled because it did not represent good value for Canada.^[20] In effect, Bronson is asking the Tribunal to compare the original solicitation and the current RFP to determine whether the changes made to the current RFP, and the alleged advantages conferred to the incumbent, were “necessary and unavoidable” to achieve their objective of ensuring good value for Canada.^[21]
37. The framing of the issue in this manner misstates the purpose of the Tribunal’s inquiry, which is to determine whether or not the terms of the current RFP, as written, are biased towards the incumbents. While there may be instances in which the cancellation of a previous solicitation provides context for the Tribunal’s analysis, the Tribunal has repeatedly stated that “a procuring entity has the right to define its own requirements and has no obligation, in preparing a solicitation, to incorporate the terms of a previous solicitation.”^[22] The question of whether or not the amended terms of the current RFP bolster PWGSC’s claim that the original solicitation was cancelled because it did not provide “value to Canada” is a separate issue, which more properly goes towards Bronson’s argument that PWGSC improperly cancelled the original solicitation – an issue that is currently before the Federal Court.

Section 5.2.5: Configuration Management Process (Example 2)

38. Section 5.2.5 of the Statement of Work (SOW) requires the contractor to implement “a configuration management process that is compliant with Information Technology Infrastructure Library (ITIL) version 3 . . . .” While not referenced by Bronson, rated requirement 2.1.2 (iii) includes a scenario for which bidders must submit a configuration management process in accordance with Section 5.2.5 of Annex A.^[23] As part of the SOW, Section 5.2.5 sets out the expectations and requirements of the Client Authority once the contract is awarded, but is not subject to evaluation during the solicitation process.^[24] Therefore, the Tribunal believes that this ground of complaint should actually concern rated requirement 2.1.2 (iii). 
39. Bronson alleged that ITIL version 3 required to be used in its response to rated requirement 2.1.2 (iii) is now obsolete, having been replaced with a more current version, and that a training course for it is no longer available. Bronson contended that VFS has “extensive experience with ITIL v3 by way of its association with the government of the United Kingdom.”^[25] As such, Bronson argued that the incumbent has a distinct advantage over bidders who do not have similar experience with the now defunct ITIL version 3. Bronson argued that PWGSC should have allowed bidders to provide an equivalent standard to meet the requirement.
40. On April 20, 2017, PWGSC released several additional amendments to the current RFP, including an amendment to Section 5.2.5 as follows:

    Canada confirms that the requirement for a configuration management process stands. Specifically, the Contractor will be permitted to implement any configuration management process that is compliant or equivalent to ITIL v03 or higher.^[26]

41. In reply, Bronson maintained that the amendment “entirely misses the point”, since it “does nothing to address the fact that the incumbent is well known to have considerable experience, through its U.K. VAC contract, with the ITIL methodology.”^[27] Bronson asserted that the incumbent would still have an advantage, as it could use its existing ITIL documentation to respond to the rated sections of the solicitation.

–        Analysis

42. As noted above, in order to find that the solicitation requirements are biased, the Tribunal must find that the government institution acted unreasonably in establishing its legitimate operational requirements, or in setting requirements that were impossible to meet, in an effort to deliberately favour a potential supplier.^[28]
43. In its complaint, Bronson contended that this requirement was essentially impossible to meet, as ITIL version 3 was obsolete and training for it was no longer offered. In accordance with Bronson’s own suggestion, PWGSC amended the requirement to allow bidders to utilize “any configuration management process that is compliant or equivalent to ITIL v03 or higher.”^[29] Therefore, Bronson is no longer required to use ITIL version 3, but may instead use any other configuration process that is equivalent to ITIL version 3 or higher. As such, the amendment ensures that this requirement is not impossible to meet.
44. Bronson also contended that the incumbent still has an advantage since it may use its existing ITIL documentation to respond to the rated sections. While it is true that incumbents will have experience in using configuration management processes in the context of the RFP, that is a normal advantage of incumbency. As noted above, “there is no obligation to offset the effect of incumbency in the formulation of solicitations . . . .”^[30] Therefore, the Tribunal finds that Section 5.2.5 does not unfairly advantage the incumbents, and is not biased towards the incumbents.

Rated requirements 3.1.2 and 3.2.2: Corrective Action Plan (Examples 3 and 5)

45. Rated requirements 3.1.2 and 3.2.2 set out scenarios in which the Client Authority has issued deficiency notices as a result of either the contractor returning a package to the incorrect applicant, or the discovery that a VAC worker has not been security-screened. Both requirements state that the bidder must demonstrate how they will provide a Corrective Action Plan which complies with the requirements of Section 10.5.1 of Annex A.
46. Bronson contended that this requirement unfairly advantages incumbents who already have action plans tailored to Canada’s requirements, and therefore fully understand what they entail. By contrast, Bronson argued that it will be required to “expend considerable time and effort” in responding to the requirement.^[31]
47. In response, PWGSC argued that, under the contract in place, incumbents were not required to have submitted a written Corrective Action Plan as set out in rated requirement 3.1.2, and therefore that this requirement is new to all bidders. While PWGSC acknowledged that the incumbents may have gained experience during the existing contract that could assist them in responding to both requirements, any such advantage is a normal incumbent advantage and should not be considered unfair.
48. Moreover, given that the solicitation in issue involves the handling of sensitive personal documents submitted by visa applicants, PWGSC maintained that requiring a potential supplier to demonstrate the steps it would take to address a security breach involving a misdirected package or improperly screened VAC worker is reasonable.

–        Analysis

49. In the introductory summary of the current RFP, it is stated that VACs

    play the principal role in the mandatory collection of Biometrics for foreign nationals making an application to come to Canada and also facilitate the reliable and secure transfer of documents between Applicants and IRCC-specified Offices.^[32]

    [Emphasis added]

    Furthermore, the SOW incorporated in the RFP states that “[t]he Contractor must ensure that the collected Biometrics are associated with the correct application and Applicant by following the procedures provided by the Client Authority.”^[33] Given that the secure collection and distribution of personal information and documents form an essential part of the work to be performed under the resulting contract, the Tribunal holds it is reasonable for PWGSC to require that bidders provide a sample corrective action plan to demonstrate how a possible mishandling of information would be remedied.

50. Bronson has not offered any evidence that the requirement, as written, is impossible to meet. Rather, it has argued that non-incumbent bidders “will be required to expend considerable time and effort in responding to this requirement.”^[34] While the incumbents may be able to adapt precedents used in fulfilling the current contract to assist them in responding to this requirement, this would be a consequence of incumbency, and does not demonstrate that there was any deliberate attempt by PWGSC to favour them.
51. As a result, the Tribunal finds that the terms of rated requirements 3.1.2 and 3.2.2 relate to a legitimate operational requirement, and were not designed to advantage the incumbents.

Rated requirement 3.2.1: Security Screening Process (Example 4)

52. Rated requirement 3.2.1 requires bidders to submit their “security screening process” in accordance with Section 4.2 of Annex A.^[35] For its part, Section 4.2 of Annex A lists the types of verifications that may be requested under that provision, such as an identity check, residency check, criminal record check and credit check.^[36]
53. Bronson argued that the requirement to demonstrate a timeline for the security screening process is prejudicial to non-incumbents since incumbents have been operating a security screening process during the course of the existing contract. Specifically, Bronson alleged that the incumbents are in a unique position to use their own data gathered through their experiences, and have knowledge of the specific criteria and scenarios under the current contract.
54. PWGSC submitted that Bronson is mistaken, as the process only involves the bidder’s own security screening process and Canada is not involved. Regardless, as Amendment 7 to the current RFP removed references to a “timeline” in the security screening process, PWGSC argued that this ground of complaint is no longer in issue.

–        Analysis

55. After being amended, the requirement in issue states as follows:

    The Bidder should provide its security screening process. The Bidder’s response should clearly demonstrate how its bid will meet and satisfy the requirement of security screening in accordance with Section 4.2 of Annex A.^[37]

    As noted above, the winning bidder of the solicitation will set up multiple VAC stations which will collect and transfer information for visa applicants, including personal information. The Tribunal therefore finds that it is reasonable that personnel with access to such information must go through a security screening process to ensure their reliability, and that the bidder, as the one employing the personnel, have a process to ensure the proper screening takes place.

56. Bronson has not argued that this requirement is in any way impossible to meet. Rather, it contended that the incumbents will have an advantage since they know “the specific criteria and scenarios under the current Canada VAC contract.”^[38] However, it is not clear what “criteria and scenarios” Bronson believes the incumbents will have knowledge of that are not already described in the current RFP. Section 4.2 of Annex A lists each of the types of checks to be completed, and what they entail, while also making it clear that completed checks are mandatory for all personnel who will access, handle, or be given personal information.^[39] While the Client Authority may request the information gathered through the screening process at any time throughout the contract, this is not part of the bid evaluation, and in any event is information the contractor should have on hand if the personnel were screened in accordance with Section 4.2.
57. As a result, the Tribunal concludes that this requirement is a legitimate requirement which is not biased in favour of the incumbents.

Rated requirement 4.1: Information Services – Website (Example 6)

58. Rated requirement 4.1 required bidders to

    provide a comprehensive description and a visual presentation of the website solution to substantiate how its bid will meet and satisfy the requirements as per Sections 2.4.2 and 6.2 of Annex A.

    A maximum of 50 points will be awarded for this item.^[40]

59. Bronson objected to the requirement for a visual presentation, arguing that incumbents can simply screenshot their existing website while new entrants will have to create website mock-ups at considerable time, effort and expense, including local language translations of each of the country-specific websites in question. Bronson maintained that incumbents will also know the type of information PWGSC is looking for on these websites, while new entrants will not and have no opportunity to “workshop” with the client department to help design the website per client needs.
60. In addition, Bronson contended that PWGSC has not explained the unusually large weighting for what it terms to be this “mundane” requirement, for which 50 points or 8.3% of the technical bid score are at issue, and that this too would unduly reinforce an incumbent advantage.
61. PWGSC submitted this is a reasonable requirement and a normal incumbent advantage. Nevertheless, in its answer to Question 83 in Amendment 7 to the current RFP, PWGSC removed the requirement for a visual presentation, and now requires only that bidders provide a “comprehensive description”.
62. In reply, Bronson argued that this is insufficient because “[t]he RFP marking references (where IRCC will give points), such as language requirements, remains as-is. In this example, VFS has all the specific and Canada signed[-]off translations.”^[41]

–        Analysis

63. The winning bidder will need to release and manage a website for the VACs with the information required by Section 2.4.2 of Annex A (the SOW). Section 2.4.2 requires the website to (1) display the general information about the VAC set out in Section 2.4.1; (2) provide applicants access to the Appointment Scheduling Service and Package Tracking System; and (3) include a direct link to the client authority’s website. Given that the winning bidder will be required to release and manage a website, the Tribunal finds that it is not unreasonable for evaluation purposes to require bidders to provide a description of this website.
64. Nor is this requirement impossible to meet. PWGSC reduced the requirements from a full visual presentation of the proposed website to simply a comprehensive description of such a website. Bronson has not indicated why it believes that providing a description of the website would be impossible to meet. For instance, while the incumbents may have approved translations of the required content, Bronson is only required to provide a description of the website, and not the actual content. Moreover, while having the approved translations may provide an advantage to the incumbents, it is an inevitable consequence of incumbency. As noted above, in similar situations the Tribunal has previously found that, “in itself, [this] is normal and is not considered to be unfair.”^[42] As such, there does not seem to be any indication that this requirement was unreasonably drafted, impossible to meet, or deliberately structured to favour an incumbent.
65. Finally, there is no indication that the scoring of this requirement is unfair. Given that the requirement itself is not unfair, Bronson has not provided a rationale for why it believes the weighting of this requirement deliberately advantages the incumbents. As a result, the Tribunal finds that this requirement is not biased in favour of the incumbents.

Rated Requirement 4.2: Appointment Scheduling Service (Example 7)

66. Rated requirement 4.2 provides as follows:

    The Bidder should provide a comprehensive description that substantiates how its bid will meet or satisfy the Appointment Scheduling Service requirements in accordance with Sections 1.3 and 2.2 of Annex A.

    A maximum of 50 points will be awarded for this item.^[43]

    Bronson argued that this requirement advantages incumbents who already operate appointment scheduling consistent with Canada’s requirements. In particular, Bronson maintained that the scenarios set out in requirements 4.2.2 and 4.2.3 are biased, since they require non-incumbents to develop business, IT and helpdesk processes in addition to website screens. By contrast, Bronson stated that the incumbents have a significant advantage since they will already have these processes in place.

67. Moreover, Bronson contended that the advantage to incumbents is compounded because its weighting has been increased from 10 points under the original RFP to 190 points (out of a total of 600) under the current RFP. 
68. PWGSC submitted that this is a reasonable requirement and normal advantage. Further, the appointment scheduling service offered under the current contract differs from the service described in the current RFP. It also noted that it had extended the solicitation closing date, which grants the non-incumbents additional time to complete their proposals.
69. In reply, Bronson argued that even with the extension the incumbents still know more about the specific incident responses because they have most likely been through corrective actions before.

–        Analysis

70. The introductory summary of the current RFP states as follows:

    The Contractor must provide a “Core Service – Biometric Collection” to Applicants that require Biometric Collection Service. “Core Service – Biometric Collection” includes the collection of Biometric information from Applicants, a Biometric Collection appointment using an Appointment Scheduling Service and Package Transmission Service.^[44]

    [Emphasis added]

    Therefore, the current RFP clearly sets out that operating an Appointment Scheduling Service to schedule appointments for Biometric Collection is an integral part of the work to be done under the contract.

71. The scenarios described under requirements 4.2.2 and 4.2.3 require the bidder to demonstrate how it would facilitate booking an appointment for Biometric Collection,^[45] and how it would respond to a situation in which multiple appointments had to be rescheduled due to a malfunction of certain necessary equipment.^[46] Given that the scheduling of appointments is an integral part of the work to be performed under the contract, it is reasonable for PWGSC to require bidders to demonstrate how their proposed Appointment Scheduling Service would function. Nor is it improbable that a situation could arise in which previously scheduled appointments had to be rescheduled due to an unforeseen issue. As such, the Tribunal finds that this is a reasonable requirement for the services called for under the current RFP. 
72. Bronson has not offered any evidence that the requirement, as written, is impossible to meet. Rather, it argued that non-incumbent bidders will be at a disadvantage since they do not have business processes and scheduling services in operation. While the incumbents may be able to adapt precedents used in fulfilling the current contract to assist them in responding to this requirement, this is a normal advantage of incumbency, and does not demonstrate that there was any deliberate attempt by PWGSC to favour them. Non-incumbents may need to focus on these requirements perhaps differently than an incumbent, but that proposition is largely speculative, and if it were to empirically be the case this would be as an inevitable result of incumbency. Again, the Tribunal finds that this does not demonstrate a deliberate attempt to favour the incumbents.
73. Similarly, Bronson did not explain why it believes the allocation of points for this requirement is unreasonable. As noted previously, if a requirement itself is not unfair, it is difficult to see how the points allocated to its evaluation are an attempt to deliberately advantage the incumbents. Moreover, an examination of the point allocation reveals that the difference between the original RFP and the current RFP largely derives from the decision in the current RFP to combine into a single requirement what had previously been rated requirements 4 and 5.^[47] Since rated requirement 4 in the current RFP now includes two operational requirements, it is reasonable for the points allocated to it increase.

Section 1.3, Summary: Biometric Equipment Deployment (Example 8)

74. Bronson complained that the current RFP expresses in Section 1.3, Summary, Canada’s intention to roll out biometrics from July to December 2018, even though the resulting contract begins in November 2018. The relevant section reads as follows:

    In June 2015 Government of Canada announced that it would be expanding the use of biometric screening to all foreign nationals applying for temporary resident visas (visitor visas), as well as those applying for work or study permits (except U.S. citizens), and all foreign nationals applying for permanent residence in Canada. Immigration, Refugees and Citizenship Canada (IRCC) expects to begin implementing this initiative in July 2018 and be completed by the end of 2018.^[48]

75. Bronson argued that the roll-out of biometric equipment “will already be underway to existing incumbent locations and awarding the new contracts to a non-incumbent bidder(s) would require Canada to purchase biometric equipment for use at both the incumbent’s locations and the contract awardee’s . . .”^[49] for several months during transition. Bronson contended that the current RFP therefore presumes that incumbents will hold new contracts or at least shows a preference for incumbents (otherwise, Canada might pay for an incumbent and a non-incumbent’s biometric equipment).
76. PWGSC maintained that Bronson is mistaken, and that the program instead contemplates and has built in the costs of an award to a non-incumbent, requiring a transition phase. PWGSC asserted that government-furnished equipment will be made available even to new VAC location operated by any new non-incumbent as required.
77. In reply, Bronson argued PWGSC has provided no affidavit evidence that it has actually built in the costs of the transition or that it has the budget for two sets of equipment.

–        Analysis

78. The provision referred to is a proposed timetable for the roll-out of the resulting contract, and is not part of the requirements of the current RFP. In essence, Bronson is arguing that the timing of the roll-out is actually an undisclosed criterion, since the evaluators will necessarily prefer to award the contract to the incumbents who already have equipment in place, rather than award it to a non-incumbent for whom it would have to purchase new equipment during the transition period.
79. Bronson’s claim in this respect is premised on the notion that the evaluators could incorporate undisclosed criteria in their evaluation which would favour the incumbents. However, unless or until there is evidence that evaluators actually took action by using a purported undisclosed criterion in their evaluation, the Tribunal finds that this ground of complaint remains speculative, and there can be no violation of the trade agreements.  

Section 1.3, Summary: Volume Data (Example 9)

80. Section 1.3, Summary of Part 1, General Information, of the current RFP provides an overview of the RFP. It outlines that the purpose of the RFP is to enter into a contract with VAC operators who collect biometric information (photographs, fingerprints) of foreign nationals making an application to come to Canada, as well as additional services, such as assistance in the completion of applications and facilitating the transfer of original documents (such as passports) to the IRCC-specified visa offices, which ultimately make the necessary determinations with respect to the visa applications.
81. Bronson asserted that these program objectives require volume data for bidders to respond to the current RFP. It argued that this need is particularly acute for new entrants because they must invest significantly in a new VAC network. By contrast, incumbents have direct knowledge of current service volumes at actual VAC locations, which Bronson submits constitutes a significant advantage regarding the financial bid (from a cost of operations, expected revenue, and risk analysis perspective). Bronson argued there cannot be a fair competition when the incumbents have non-proprietary historical visa volume data but new entrants do not.
82. On April 19, 2017, in the midst of the Tribunal’s inquiry, PWGSC released Amendment 10 to the RFP. Amendment 10 contains seven attachments, comprising spreadsheets disclosing certain volume data in response to nine bidder questions (reproduced and answered in the body of Amendment 10).^[50]
83. The Tribunal invited the parties to make submissions as to whether Amendment 10 satisfied Bronson’s objection regarding Example 9 (volume data). Bronson submitted that the data disclosure remained inadequate because it contained unexplained inconsistencies, gaps, and unintelligible items. For instance, Bronson argued the following:
    • Attachment 3 inexplicably has no data for the first four worksheets in columns for February and March of 2015 and May and June of 2016. It also has blanks sheets for the tabs titled Additional Documents, GC Fee, Online Forms, and Paper App.
    • Attachment 4 appears to include a data set broader than merely temporary resident applications (as is found in Attachment 1), which makes comparisons of the data sets unreliable.
    • Attachment 6 appears to be incomplete, because it shows only 475,836 non-exempt, completed biometric applications (for December 2013 through November 2016), while Attachment 2 shows 533,035 biometric applications for a shorter period (2015-2016). Bronson also complains that this data has, without explanation, been provided without specification of location.
84. PWGSC made no submissions in reply.

–        Analysis

85. The Tribunal has previously held that, in order for a solicitation to be fair, the government institution must release “all relevant information, including historical data”.^[51] Leaving this data uniquely in the possession of the incumbents provides them an advantage in formulating a competitive financial bid that is unavailable to new entrants.
86. While PWGSC addressed this deficiency at least in part by releasing some data in response to bidders’ requests, it made no response to Bronson’s assertions that the data remains incomplete. Without further submissions from PWGSC, it is difficult to determine the relevance of the issues noted by Bronson. It may be that PWGSC is not in possession of any data other than what was provided by Amendment 10. However, on the basis of Bronson’s submissions it seems that Bronson has identified relevant deficiencies in the data from Amendment 10 that could unfairly advantage incumbents over new entrants.
87. In order to ensure that the incumbents are not unfairly advantaged, PWGSC should provide further disclosure of the information identified by Bronson, or provide an explanation as to why the data in issue is not available.

Annex J, Section 15 (Rated Requirement 5.2 of the Original RFP) (Example 10)

88. Rated requirement 5.2 of the original RFP was a point-rated scenario which called for bidders to describe how they would respond to a deficiency notification in a situation where they failed to meet certain service standards due to a sudden and significant increase in demand for Core Services.^[52]
89. Bronson argued that non-incumbents have been unfairly disadvantaged by the deletion of rated requirement 5.2 of the original RFP, as it was an opportunity for non-incumbents to demonstrate innovation. Instead, the current RFP emphasizes experience in running the VAC network “exactly as it was under the current contract”.
90. PWGSC stated that IRCC eliminated the requirement because it no longer considered it essential. Bronson, however, remains free to submit a responsive bid that will be judged on the merits. It also noted that elements of rated requirement 5 of the original RFP relating to Facilities Plan and Deployment Plan remain in rated requirement 2.1 of the current RFP.

–        Analysis

91. As previously noted, the Tribunal did not accept to inquire into the issue of the alleged improper cancellation of the original RFP. As such, the issue of whether the current RFP is more or less favourable to incumbents in its requirements and point allocation than the original RFP is not germane to the present inquiry. Rather, the Tribunal will examine whether the new requirements and point allocation are discriminatory or not.
92. The Tribunal has previously held that there is no obligation to structure a procurement to accommodate any particular supplier,^[53] nor is there any “obligation to offset the effect of incumbency in the formulation of solicitations”.^[54] Therefore, while PWGSC could have chosen to include a criterion in the current RFP which allocated points for innovation, there was no requirement for it to do so. As such, this ground of complaint is not valid.

Disclosure of Confidential Information

93. Bronson alleged that PWGSC and/or IRCC divulged certain confidential information in Bronson’s bid response to the original RFP (the confidential information) to at least one potential competitor for the current RFP. In support, Bronson included an affidavit from its President, Mr. David Baird, in which he stated that Peter Nutt (the CEO of CSC) referred to the confidential information during a telephone call on December 1, 2016.^[55]
94. Mr. Baird stated that he did not ask Mr. Nutt where he had heard that confidential information. He also stated that his team consists of only a few people and he has confirmed that none of them disclosed the confidential information to Mr. Nutt. As such, Bronson contended that the only possible source of Mr. Nutt’s information was PWGSC or IRCC, “either directly or through a third party”.^[56]
95. In response, PWGSC and IRCC both denied that any of their officials disclosed any confidential information from Bronson’s bid in response to the original RFP. In support, they included two affidavits from officials involved in the solicitation process in which they described their handling of the confidential information in Bronson’s bid, and denied disclosing it.^[57]
96. PWGSC also challenged Bronson’s contention that if Bronson did not disclose the information, then PWGSC or IRCC must have. It submitted that CSC and the other compliant bidder may have deduced the confidential information on their own through the process of elimination.^[58]
97. In reply, Bronson argued that PWGSC had “failed to rebut” the clear evidence that certain confidential information contained in Bronson’s original bid had not been kept confidential by PWGSC and/or IRCC.^[59] Bronson contended that the affidavits provided by PWGSC in this respect used “qualifying language” which limited the scope of that evidence.^[60] Moreover, Bronson alleged that its confidential information was revealed in a “public letter” from IRCC to PWGSC.^[61]

–        Analysis

98. There are several issues with Bronson’s arguments. To begin, Bronson urged the Tribunal to “draw an adverse inference against PWGSC for their failure to communicate with Peter Nutt and their failure to report on a conversation with him in order to refute Bronson’s allegations.”^[62] Contrary to Bronson’s assertion, the Tribunal finds that it has not provided clear evidence that PWGSC or IRCC disclosed confidential information. Rather, Bronson has provided evidence that a competitor may have had knowledge of its confidential information, and speculated as to how that competitor received that information. Indeed, Bronson has not established on the balance of probabilities that a competitor received any confidential information whatsoever, but only that a competitor stated a fact that happened to align with what Bronson’s confidential information was. As such, the competitor’s statement could just as easily have been no more than an educated guess (that happened to be on the mark) as to what Bronson’s confidential information actually was.
99. In this case, Bronson chose not to pursue or to confirm the source of certain information. Bronson stated that “[i]t was for PWGSC to conduct an investigation and probe this serious matter further. It was not for Bronson to conduct such an investigation . . . .”^[63] In evaluating a complaint, the Tribunal looks at the totality of the evidence presented before it. Both parties are expected to put their best case forward when presenting their position. By choosing not to ask Mr. Nutt, either informally or with the Tribunal’s assistance, how he learned of the confidential information, Bronson chose to premise this aspect of its complaint on speculation and inference. For whatever reason Bronson made that choice, and it must accept the resulting consequences.
100. Although PWGSC could have questioned Mr. Nutt as to the source of his information, it did not have an obligation to do so. Rather, PWGSC submitted the affidavit of Mr. David Tomei, Contracting Authority for PWGSC during the solicitation in issue, and Ms. Carol Young, Technical Authority for IRCC during the solicitation in issue. Both affiants stated that, to the best of their knowledge and belief, neither they nor anyone on their team disclosed Bronson’s confidential information.^[64]
101. While Bronson objected to what it described as the “qualifying language” of these affidavits, they remain the best evidence before the Tribunal. Again, the only evidence that Bronson provided was that a competitor was aware of something that happened to align with the confidential information. That competitor did not state where he got such information, nor did Bronson inquire as to its provenance. Attributing the disclosure of that information to PWGSC or IRCC officials is speculation on Bronson’s part, and not backed by any actual evidence.
102. Given the foregoing, the Tribunal has no basis upon which to conclude that PWGSC or IRCC disclosed any confidential information in Bronson’s bid. As such, the Tribunal concludes that this ground of complaint is not valid.
103. With respect to Bronson’s contention that its confidential information was revealed in a “public letter” from IRCC to PWGSC, which “is found again in the record herein”,^[65] the Tribunal notes that Bronson seems to have referred to an incorrect document.^[66] Later in its submission, Bronson referred to a document listed as Exhibit 9 of the confidential GIR,^[67] but it did not explain why it considers the letter to be part of the public record of this matter. The Tribunal notes that the document in question is correspondence between the two government departments involved in the solicitation process, and there is no indication that it was made available to Bronson’s competitors or the general public. Moreover, while it was filed on the record for this inquiry, it was clearly filed as a confidential exhibit by PWGSC.^[68]
104. Bronson also alleged that the document in question was filed as a public exhibit in the Federal Court proceedings.^[69] The Tribunal does not have access to the documents filed before the Federal Court, but instead has a list of documents titles on a sheet entitled “Table of Contents” filed by Bronson. There is no indication of which party filed the documents listed on that sheet, nor is there an explicit characterization of which documents are public or confidential.^[70] Even if the Tribunal takes to be a reference to a confidentiality order the notation “omitted pursuant to Order” (which appears beneath several of the documents listed), it is not clear why Bronson would not also seek to have the document in issue protected by that order, if it did indeed contain confidential information.
105. In light of the foregoing, the Tribunal finds that the evidence filed by Bronson does not demonstrate that PWGSC or IRCC breached the trade agreements in regard to this allegation. As such, this ground of complaint is not valid.

REMEDY

106. Having found that Bronson’s complaint is valid in part, the Tribunal must determine the appropriate remedy, in accordance with subsections 30.15(2) and 30.15(3) of the CITT Act. In this case, the breach in question is PWGSC’s apparent failure to provide certain data to Bronson which is available to the incumbents.
107. As the Tribunal noted above, PWGSC addressed this deficiency at least in part by providing a substantial amount of new information by way of Amendment 10. However, Bronson contended that the information provided is insufficient and the still-missing data is important. The Tribunal has no way to assess the relevance of the still-missing data, if any such data exists. However, in order to ensure that the incumbents are not unfairly advantaged the Tribunal recommends that PWGSC provide further disclosure of the information identified by Bronson regarding Section 1.3, Summary of Part 1, General Information, of the current RFP, or provide an explanation as to why the data in issue is not available.

COSTS

108. Both parties requested costs in relation to the proceedings. Given the divided success in this case, each party shall bear its own costs.

DETERMINATION

109. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is valid in part.
110. Pursuant to subsections 30.15(2) and 30.15(3) of the CITT Act, the Tribunal recommends that PWGSC provide further disclosure of the information identified by Bronson regarding Section 1.3, Summary of Part 1, General Information, of the current RFP, if any such data exists, or provide an explanation as to why the data in issue is not available.
111. Each party shall bear its own costs in relation to the proceedings. If any party disagrees with the cost decision, it may make submissions to the Tribunal, as contemplated by Article 4.2 of the Procurement Costs Guideline. The Tribunal reserves jurisdiction to establish the final amount of the award, if any.