VITA-TECH LABORATORIES LTD.

Determinations

VITA-TECH LABORATORIES LTD.
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2005-019

Determination and reasons issued
Wednesday, January 18, 2006

TABLE OF CONTENTS

IN THE MATTER OF a complaint filed by Vita-Tech Laboratories Ltd. under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

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

BETWEEN

 

VITA-TECH LABORATORIES LTD.

Complainant

AND

 

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

Government Institution

DETERMINATION OF THE TRIBUNAL

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 Vita-Tech Laboratories Ltd. The Canadian International Trade Tribunal's preliminary indication of the level of complexity for this complaint case is Level 2, and its preliminary indication of the amount of the cost award is $2,400. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Canadian International Trade Tribunal, as contemplated by the Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of the award.

Ellen Fry
Ellen Fry
Presiding Member

Hélène Nadeau
Hélène Nadeau
Secretary

Tribunal Member:

Ellen Fry, Presiding Member
   

Research Director:

Randolph W. Heggart
   

Investigation Manager:

Michael W. Morden
   

Investigation Officer:

Josée St-Amand
   

Counsel for the Tribunal:

Nick Covelli
   

Complainant:

Vita-Tech Laboratories Ltd.
   

Counsel for the Complainant:

Jack Hughes
 

Gerry H. Stobo
   

Intervener:

Can Test Ltd.
   

Counsel for the Intervener:

Brian J. Wallace, Q.C.
   

Government Institution:

Department of Public Works and Government Services
   

Counsel for the Government Institution:

Susan D. Clarke
 

Christianne M. Laizner
 

Ian McLeod

Please address all communications to:

The Secretary
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
15th Floor
Ottawa, Ontario
K1A 0G7

Telephone: (613) 993-3595
Fax: (613) 990-2439
E-mail:

STATEMENT OF REASONS

COMPLAINT

1. On September 13, 2005, Vita-Tech Laboratories Ltd. (Vita-Tech) 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 the procurement (Solicitation No. 01948-050015/E) by the Department of Public Works and Government Services (PWGSC) of post-race equine drug testing services for the Canadian Pari-Mutuel Agency (CPMA), an agency of the Department of Agriculture and Agri-Food.

2. Vita-Tech alleged that PWGSC failed to provide sufficient information to explain why Vita-Tech's bid was evaluated as non-responsive, improperly evaluated Vita-Tech's proposal, gave an unfair advantage to a laboratory that was already providing the required services, and did not allow enough time for bidders to submit proposals.

3. On September 21, 2005, the Tribunal informed the parties that it had accepted the two grounds of complaint that 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 The accepted grounds of complaint were the allegation that PWGSC did not provide Vita-Tech with adequate information concerning the evaluation of its proposal and the allegation that PWGSC improperly evaluated Vita-Tech's proposal. The Tribunal only accepted this second ground of complaint as it related to items 1.A, 1.B and 2.A of the point-rated criteria under section C.2.2 of the Request for Proposal (RFP). The Tribunal determined that the third ground of complaint, i.e. that PWGSC gave an unfair advantage to an existing service provider, and fourth ground of complaint, relating to the amount of time available to submit bids, were filed outside of the time frame allowed under section 6 of the Regulations and that it therefore did not have the jurisdiction to investigate these grounds of complaint.

4. On October 13, 2005, the Tribunal granted intervener status to Can Test Ltd. (Can Test). On October 17, 2005, PWGSC submitted the Government Institution Report (GIR). On October 25 and 31, 2005, Can Test and Vita-Tech submitted their respective comments on the GIR.

5. The Tribunal noted that Vita-Tech's comments on the GIR contained a new, more detailed, technical explanation of the alleged improper evaluation of its proposal. It therefore requested that PWGSC provide a response to this new information, which PWGSC did on November 22, 2005. Vita-Tech provided its final comments on PWGSC's response on November 25, 2005. In addition to addressing the specific items that were the subject of the Tribunal's request for a response, both parties provided submissions relating to other aspects of the complaint. In its letter of December 2, 2005, the Tribunal advised both parties that it would only consider submissions that were within the scope of its request.

6. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that a hearing was not required and, pursuant to paragraph 25(c) of the Canadian International Trade Tribunal Rules,3 disposed of the complaint on the basis of the written information on the record.

PROCUREMENT PROCESS

7. The RFP that is the subject of the complaint was the second of two issued for post-race equine blood and urine drug testing services for the CPMA. The first RFP sought to award two contracts by dividing CPMA's total requirement into two work packages-a primary contract for roughly 60 percent of the work and a secondary contract for the remaining 40 percent. According to PWGSC, Can Test submitted the only responsive proposal to the first RFP and was awarded the primary contract. Given that 40 percent of the work still needed to be contracted, PWGSC initiated the second RFP, the subject of this complaint. On July 7, 2005, PWGSC faxed the second RFP directly to the three bidders that had participated in the first solicitation, with a due date for receipt of bids of July 26, 2005. The RFP indicated that the method of selection for contract award was the lowest priced responsive proposal.

8. According to PWGSC, three bids were received in response to the second RFP, the evaluations of which were concluded on August 11, 2005. On August 15, 2005, the contract for the remaining 40 percent of the work was awarded to Can Test. On August 16, 2005, PWGSC notified the unsuccessful bidders of the contract award. On August 29, 2005, Vita-Tech telephoned PWGSC to object to the outcome of the solicitation process. On the same day, PWGSC faxed Vita-Tech a copy of the collective assessment of its technical evaluation. On August 30, 2005, Vita-Tech e-mailed PWGSC, objecting to the evaluation and requesting a formal reconsideration of the decision not to award the contract to Vita-Tech. On August 30, 2005, PWGSC confirmed, via e-mail, that Vita-Tech's proposal failed to meet the mandatory overall rated score of 75 percent.

9. On September 13, 2005, Vita-Tech filed its complaint with the Tribunal.

POSITIONS OF THE PARTIES

Vita-Tech's Position

10. Vita-Tech disagreed with PWGSC's submission that the North American Free Trade Agreement 4 did not apply to the procurement. It submitted that PWGSC had a mistaken understanding of Article 1018(2)(a) of NAFTA, which concerns measures "necessary to protect public morals, order or safety". Vita-Tech submitted that Article 1018(2) must be read in connection with Article 1018(1), which, it argued, provides that governments may take actions which they consider necessary for the protection of ". . . essential security interests relating to the procurement of arms, ammunition or war materials, or to the procurement indispensable for national security or for national defence purposes." It submitted that nothing in the RFP relates to the purpose of the exemptions stated in Article 1018(1) and that NAFTA does therefore apply to the subject RFP. Vita-Tech also noted that the RFP did not disclose to bidders that PWGSC intended to rely on the provisions contained in Article 1018 and argued that the Tribunal should not allow PWGSC to retroactively exempt a procurement from a trade agreement.

11. Regarding the lack of information, Vita-Tech submitted that the collective assessment supplied by PWGSC on August 29, 2005, did not provide any meaningful information as to why its proposal was found non-compliant. It submitted that the collective assessment was simply a checklist of items that showed whether or not the proposal was responsive to the RFP, but did not provide any insight into why its proposal was not selected. It also submitted that PWGSC's response to its request for re-evaluation was inadequate and did not meet the standard required for a fair and transparent procurement process. Specifically, relating to items 1.A, 1.B and 2.A of the point-rated criteria under section C.2.2 of the RFP, Vita-Tech submitted that no information was provided to explain why its bid failed. It submitted that now, after having reviewed PWGSC's submissions in these complaint proceedings, it has an idea of why and where its proposal was deemed unsuccessful, even if it does not agree with the assessment. It argued that, without this insight, bidders cannot possibly be expected to engage in any process to resolve a possible complaint before coming to the Tribunal.

12. Vita-Tech submitted that it should have been awarded more points by PWGSC, based on PWGSC's knowledge of similarities between drugs and Vita-Tech's recent Standards Council of Canada (SCC) accreditation. Vita-Tech submitted that PWGSC acknowledged in the GIR that, as a newly accredited laboratory, Vita-Tech "could not be expected to provide validation data to support its claims for the entire list of drugs"5 and that the evaluators would attempt to redress this obvious unfairness by conducting the assessment on the basis of Vita-Tech's performance in the analysis of three sets of unknown proficiency samples as part of the SCC accreditation process, and that validation data for "representative drugs" would be extrapolated whenever possible to related drugs. Vita-Tech argued that, while PWGSC permitted validation data for some drugs to apply to the evaluation of drug screening methodologies for drug groups with a related pharmacological nature, it missed this extrapolation in a number of instances, the result of which was an unreasonable loss of points in item 1.A of the point-rated criteria under section C.2.2 of the RFP.

13. Vita-Tech submitted that it did not receive credit for providing what was required in the RFP because, in evaluating certain criteria, PWGSC was actually seeking more information that the RFP requested. It noted that it only became aware of these differences when it reviewed the submissions from PWGSC as part of this complaint process and learned of how it had lost some of the points relating to item 2.A of the point-rated criteria under section C.2.2 of the RFP. Vita-Tech submitted that the RFP required that it demonstrate "expert knowledge of accepted use & capacity of proposed methods for detection & confirmation of scheduled drugs",6 whereas, according to the GIR, the evaluators were seeking a ". . . detailed narrative regarding a laboratory's procedures for drug screening in equine urine or blood using the typical testing techniques/technologies for drug screening as set out in . . . item 2.A . . . for each of the enumerated drugs . . . ."7 Vita-Tech submitted that there is no indication in the evaluation criteria that a detailed narrative was required for each of the over 300 drugs listed.

14. Regarding the information that was provided in the evaluators' worksheets, Vita-Tech submitted that it was left to guess at the reasons for the evaluators' positions. It noted that, in many instances, there is just an "x" on a worksheet with no comment to guide anyone as to what the "x" might mean. It also submitted that, based on its understanding of these worksheets, PWGSC misinterpreted Table C.3.2 and made errors in evaluating the information that it contained.

15. Vita-Tech submitted that, in relation to item 1.A of the point-rated criteria under section C.2.2 of the RFP, PWGSC had improperly disallowed all reference standards from a particular source, owing to PWGSC's misinterpretation that Vita-Tech, where it claimed to be using these standards, was using instrument data as its source. It also submitted that this information was sufficient for the SCC, when provided as part of the SCC accreditation process. It also submitted that, in relation to the scoring of item 1.B, PWGSC had too narrowly interpreted widely accepted products and processes that Vita-Tech had included in its bid as being unacceptable testing methodologies. Vita-Tech also submitted that viable kit testing alternatives were barred because Can Test did not have access to these kits, even though the kits are widely available to other companies, including Vita-Tech.

PWGSC's Position

16. Regarding the allegation that it failed to provide sufficient information as to why Vita-Tech's proposal was evaluated as non-responsive, PWGSC submitted that the contracting officer made every effort to respond expeditiously and in a fulsome manner to the questions raised by Vita-Tech throughout the procurement process. It submitted that it stated, via the correspondence of August 29, 2005, when it faxed a copy of the collective assessment to Vita-Tech, that it was ". . . available to discuss [the collective assessment] at [Vita-Tech's] convenience . . . ."8 PWGSC submitted that, in accordance with Article 1018(2) of NAFTA, the solicitation is only subject to the Agreement on Internal Trade 9 and that, as such, it is not bound by the provisions of the other trade agreements regarding the debriefing of unsuccessful bidders. It submitted that it nevertheless held a debriefing with the other unsuccessful bidder and was willing to do the same with Vita-Tech, but that Vita-Tech elected, pre-emptively, to file a complaint with the Tribunal.

17. PWGSC submitted that the evaluation of Vita-Tech's proposal was conducted in a thorough and proper manner. It submitted that, relating to item 1.A of the point-rated criteria under section C.2.2 of the RFP-which was used to evaluate bidders' expert knowledge of coverage of drug groups based on the pharmacological nature of those drugs and their ability to screen equine urine and blood samples for those drugs-Vita-Tech's proposal lacked the necessary amount of information for it to have obtained higher marks than it received. Regarding item 1.B-which was used to evaluate bidders' expert knowledge of coverage of drug groups and to assess their ability to detect and confirm drugs in concentrations of interest in racing-PWGSC again submitted that Vita-Tech's proposal did not contain enough information for it to have received higher marks. With respect to item 2.A-which required bidders to indicate the typical testing techniques or technologies that they proposed to use in detecting and confirming the existence of particular drugs in equine urine and blood samples and to demonstrate their methodologies for applying the type of testing techniques or technologies that they proposed for this detection and confirmation-PWGSC submitted that Vita-Tech's proposal was appropriately scored, given the lack of information provided.

18. PWGSC submitted that its evaluation assessed Vita-Tech's methodology for drug screening in specified concentrations of the 315 drugs enumerated in Table C.3.2 of the RFP.10 This RFP included the requirement to provide supporting data in the form of standard operating procedures (SOPs), protocols, methods manuals, forms, method validation data, organizational charts, staff résumés, laboratory floor plan, inventories of equipment, reference material and any other items, including protocols for the instrumentation, screening, quantitative and confirmatory methods required to support the claimed capabilities summarized in Table C.3.211 that it submitted in order to meet the overall requirement. According to PWGSC, because the relevant supporting data submitted by Vita-Tech did not provide adequate data about enough of the 315 drugs, it was only awarded partial marks for items 1.A, 1.B and 2.A of the point-rated criteria under section C.2.2 of the RFP.

19. PWGSC submitted that it took into account Vita-Tech's recent SCC accreditation in equine drug testing and ensured that the maximum number of points were awarded to Vita-Tech when the SCC accreditation process coincided with the RFP requirements. It submitted that, even given this generous scoring, Vita-Tech's proposal failed to meet the mandatory minimum requirement of 75 percent of the available marks. It submitted that, when asked about accreditation on July 15, 2005, it informed Vita-Tech that ". . . [t]he existence of a prior assessment and accreditation process has no bearing whatsoever on the CPMA's rights . . . to evaluate the capabilities of each bidder . . . ."12

20. Regarding the allegation that certain testing kits were not allowed because Can Test did not have access to them, PWGSC submitted that the CPMA, on behalf of the Canadian racing industry, had been refused access to the kits in question on numerous occasions. It submitted that, to be fair to all bidders, due to the marketing practices of the manufacturer of the kits, it had eliminated those kits from use. PWGSC also submitted that, on July 15, 2005, it advised Vita-Tech of the reasons for the elimination of the kits13 and that the time for submitting a complaint on this ground had expired.

21. PWGSC also submitted that there were two compliant bids and that, had Vita-Tech met the minimum point threshold requirement, it still would not have been awarded the contract because its total evaluated bid price was the highest of the three submitted proposals.

22. PWGSC requested that the complaint be dismissed and that it be awarded its costs in accordance with the Tribunal's Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline).

Can Test's Position

23. Regarding the allegation that PWGSC failed to provide Vita-Tech with sufficient information to explain why its proposal was deemed non-responsive, Can Test submitted that, even if PWGSC behaved as alleged, which, in its opinion, appeared not to have been the case, there is no merit to the allegation that Vita-Tech suffered any prejudice as a result. It submitted that there is no connection between the failure of Vita-Tech's bid and PWGSC's alleged failure to advise it, after the fact, of why the bid had failed. It submitted that all allegations relating to the improper evaluation of Vita-Tech's proposal related to the bidding process, which was completed by July 26, 2005. Can Test submitted that, as the complaint was not filed until September 13, 2005, it was submitted beyond the 10-day time limit. It also submitted that it would be prejudiced if the complaint were allowed to jeopardize its award of the contract.

TRIBUNAL'S ANALYSIS

Trade Agreement Applicability

24. The parties did not dispute that the AIT applies to this procurement. Having reviewed Chapter 5 of the AIT, the Tribunal is satisfied that the AIT does apply.

25. The parties disagreed as to whether NAFTA applies as well, but did not comment on the possible application of the Agreement on Government Procurement.14 This issue is important in considering Vita-Tech's allegation that PWGSC did not provide it with adequate information concerning the evaluation of its proposal. The AIT does not contain any specific requirement for the government to provide unsuccessful bidders with such information. However, NAFTA and the AGP do contain provisions that require contracting agencies to provide bidders with information as to why their proposals were not selected. Article 1015 of NAFTA reads as follows:

. . .

6. An entity shall:

(a) on request, promptly inform suppliers participating in tendering procedures of decisions on contract awards and, if so requested, inform them in writing; and

(b) on request of a supplier whose tender was not selected for award, provide pertinent information to that supplier concerning the reasons for not selecting its tender, the relevant characteristics and advantages of the tender selected and the name of the winning supplier.

Article XVIII of the AGP reads as follows:

. . .

2. Each entity shall, on request from a supplier of a Party, promptly provide:

. . .

(b) pertinent information concerning the reasons why the supplier's application to qualify was rejected, why its existing qualification was brought to an end and why it was not selected; and

(c) to an unsuccessful tenderer, pertinent information concerning the reasons why its tender was not selected and on the characteristics and relative advantages of the tender selected as well as the name of the winning tenderer.

. . .

26. PWGSC's position is that Article 1018(2) of NAFTA causes a procurement to be excluded from coverage under NAFTA in the present circumstances. The relevant part of this provision reads as follows:

2. Provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail or a disguised restriction on trade between the Parties, nothing in this Chapter shall be construed to prevent any Party from adopting or maintaining measures:

(a) necessary to protect public morals, order or safety; [or]

(b) necessary to protect human, animal or plant life or health;

. . .

27. The Tribunal notes that Article XXIII of the AGP has the following similar provision:

. . .

2. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent any Party from imposing or enforcing measures: necessary to protect public morals, order or safety, human, animal or plant life or health or intellectual property; or relating to the products or services of handicapped persons, of philanthropic institutions or of prison labour.

. . .

28. The Tribunal does not agree with PWGSC's position. Section 30.11 of the CITT Act provides that, subject to the Regulations, a potential supplier may file a complaint with the Tribunal concerning any aspect of the procurement process that relates to a designated contract. The term "designated contract" is defined under section 30.1 of the CITT Act as a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution and that is designated or of a class of contract designated by the Regulations. Pursuant to section 3 of the Regulations, any procurement contract or class of procurement contract described in Article 1001 of NAFTA, Article 502 of the AIT or Article I of the AGP, by a government institution, is a designated contract.

29. Article 1001 of NAFTA applies to measures relating to the procurement by a federal government entity set out in Annex 1001.1a-1 of services in accordance with Annex 1001.1b-2, where the value of the contract is estimated to be equal to or greater than US$50,000 (CAN$89,000).15 Annex 1001.1a-1 lists the Department of Agriculture, of which the CPMA is a part, as a covered federal government procuring entity. Section A of Annex 1001.1b-2 states that Chapter Ten applies to all services that are procured by the entities listed in Annex 1001.1a-1 except for those services listed in Section B and for contracts for construction services. These exceptions do not relate to equine drug testing. Finally, the evidence is clear that the value of the contract is in excess of $1 million. Therefore, NAFTA applies to this procurement.

30. The Tribunal conducted a similar analysis concerning Article I of the AGP. It found that the federal government entity, the service and a procurement contract of the value in question are all covered by the AGP. Therefore, the AGP also applies.

31. Accordingly, in the Tribunal's view, Article 1018 of NAFTA does not preclude the Tribunal from applying the rules of NAFTA in an inquiry that is mandated by the CITT Act and the Regulations. Rather, in instances where the Tribunal exercises its jurisdiction to inquire into a complaint, Article 1018 limits the application of the NAFTA procurement rules in certain circumstances. If the Tribunal found that there had been a breach of Chapter Ten of NAFTA, Article 1018 would limit the application of the procurement rules if the breach was necessary to protect public morals or animal health or to accomplish one of the other objectives listed therein and if the applicable procurement measure was not applied in a manner that was arbitrarily or unjustifiably discriminatory or that constituted a disguised restriction on trade. The same holds true for the operation of Article XXIII of the AGP.

32. The Tribunal notes that, concerning a previous complaint arising from the same procurement, it indicated that only the AIT applied.16 That conclusion was based on very limited submissions made at the initial stage of the proceedings by the complainant in that matter. In that case, the Tribunal decided not to inquire into the complaint, given that there was no reasonable indication of a breach of a trade agreement. In the case currently before the Tribunal, the parties have had the opportunity to make more extensive submissions to assist the Tribunal on this issue. The Tribunal also notes that it is not bound by the principle of stare decisis.

Merits of the Complaint

33. 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. Furthermore, at the conclusion of the inquiry, the Tribunal must determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been observed. Section 11 of the Regulations further provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, as has been noted above, are the AIT, NAFTA and the AGP.

Timeliness

34. Can Test submitted that the two grounds of complaint that are the subject of this inquiry were filed late. To determine timeliness, the Tribunal must apply the provisions of section 6 of the Regulations, which states that a complainant has 10 working days from when it first becomes aware of, or should have become aware of, its ground of complaint either to object to the contracting authority-in this case, PWGSC-or to file a complaint with the Tribunal. In the event that a complainant has filed its objection with PWGSC in a timely manner, and PWGSC denies the objection, the complainant has 10 working days from when it received this denial to file its complaint with the Tribunal. The two grounds of complaint subject to this inquiry relate to the results of the evaluation of Vita-Tech's proposal, information which Vita-Tech only received on August 16, 2005. Vita-Tech then objected to PWGSC on August 30, 2005, or 10 working days after becoming aware of the results. On that same day, PWGSC denied Vita-Tech's objection. Vita-tech then filed its complaint with the Tribunal on September 13, 2005, or 9 working days after receiving its denial of relief from PWGSC. Accordingly, the Tribunal considers that the grounds of complaint were filed within the time period required by the Regulations.

Debriefing

35. PWGSC was under an obligation, under both NAFTA and the AGP, to provide Vita-Tech with information about why its proposal was not selected, if it so requested.

36. According to PWGSC, Vita-Tech telephoned PWGSC on August 29, 2005,17 and objected to the outcome of the solicitation. Both parties agree that PWGSC subsequently sent Vita-Tech, by fax on that same day, a copy of the collective assessment of the proposal.18 This assessment gives information, at a general level, about how the bid was evaluated and the scores that Vita-Tech received. When faxing the collective assessment to Vita-Tech, PWGSC offered to ". . . discuss [the collective assessment] at [Vita-Tech's] convenience."19

37. This was followed, on August 30, 2005, by an e-mail in which Vita-Tech stated that it was ". . . requesting a formal review of [the] decision not to award a contract to Vita-Tech . . . "20 and by PWGSC's e-mail confirming that Vita-Tech had failed to meet the mandatory overall mark of 75 percent.

38. The Tribunal considers that PWGSC was under an obligation to provide a debriefing to Vita-Tech that was more detailed than the general information contained in the collective assessment. However, the evidence indicates that PWGSC did offer to make itself available to discuss the assessment further with Vita-Tech. The evidence does not indicate that Vita-Tech took action to attempt to take advantage of this offer. The Tribunal also notes PWSGC's uncontradicted submission that it provided MAXXAM Analytics Inc., the other unsuccessful bidder, with a debriefing. Accordingly, it is reasonable to conclude that Vita-Tech would have been given a more detailed debriefing by PWGSC had Vita-Tech accepted the offer to ". . . discuss at [its] convenience." The Tribunal therefore finds that the first ground of complaint is not valid.

39. The Tribunal notes that Vita-Tech argued that evaluators' worksheets did not provide enough information regarding the evaluators' scoring. It was unable to identify any provision in the RFP, or in any of the trade agreements, that specifies the level of detail that must be recorded in evaluating proposals.

Evaluation

40. Regarding the ground of complaint that PWGSC improperly evaluated certain parts of Vita-Tech's proposal, the Tribunal will not substitute its judgment for that of the evaluators unless the evaluators have not applied themselves in evaluating a bidder's proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way.21

41. Article 506 of the AIT reads as follows:

6. . . . 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.

42. Article 1015 of NAFTA reads as follows:

. . .

4. An entity shall award contracts in accordance with the following:

. . .

(d) awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation . . . .

43. Article XIII(4) of the AGP reads as follows:

. . .

(c) Awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation.

44. As noted above, the Tribunal determined that it would only inquire into this allegation as it related to items 1.A, 1.B and 2.A of the rated criteria under section C.2.2 of the RFP. Respectively, these items evaluated the bidder's ". . . expert knowledge of coverage of drug groups based on pharmacological nature . . . "(1.A), the bidder's ". . . [a]bility to detect and confirm [the presence of drugs] at concentrations of interest in racing . . . "(1.B), and the bidder's". . . expert knowledge of accepted use & capacity of proposed methods for detection & confirmation of scheduled drugs . . . ." (2A). In other words, items 1.A and 1.B evaluated the bidder's ability to screen samples for the provided listing of 315 drugs, and item 2.A evaluated the appropriateness of the bidder's proposed screening methodology.

45. Vita-Tech argued that PWGSC should have awarded it more points by using the government's general knowledge to supplement the information provided in its bid. Accordingly, Vita-Tech argued that, where it had provided information in its bid concerning specific drugs, the government should apply its knowledge of those drugs to award additional points for similar or related drugs not specifically addressed in Vita-Tech's bid. In addition, although its bid did not appear to indicate how its SCC accreditation demonstrated the capability being evaluated, Vita-Tech argued that PWGSC should apply its knowledge of this accreditation process to award Vita-Tech additional points.

46. The Tribunal notes that the RFP was very clear in stating that ". . . The Bidder should explain and demonstrate how it meets the requirements and how the Bidder understands and will carry out the work requirements . . . ."22 In addition, PWGSC provided all bidders with clear indications that substantiation relating to this area was required in some detail, including the following statements:

· ". . . The laboratory shall provide copies of detailed methodology (SOPs, manuals) proposed to satisfy this requirement, including protocols for the instrumentation, screening, quantitative and confirmatory analysis, as well as protocols for development and validation of analytical methods, and all associated administrative procedures . . . ."23

· ". . . Supporting data include . . . [c]opies of the laboratory's SOPs, protocols, methods manuals, forms, Method validation data, Organizational charts, staff resumes, Laboratory floor plan, Inventories of equipment, reference material and any other items required to support the laboratory's claimed capabilities summarized in Table C.3.2. REMEMBER TO INCLUDE: 1. Completed chart 2. Laboratory SOPs and data to support claims made in the chart 3. Other supporting documentation . . . ."24

· ". . . ALL technical documents, created by the laboratory, that will be applied to the conduct of this scope of work by a successful bidder should be included in the bid package . . . ."25

· ". . . ALL laboratory-developed documents related to the scope of testing will contribute to the evaluation of each proposal according to the specification of this RFP. Each bidder may make required number of copies of both their quality manual and their SOPs and any other documents they would make use of in carrying out the work if they are a successful bidder. Without complete laboratory documentation the technical evaluation team cannot conduct a complete evaluation . . . ."26

47. Regarding SCC accreditation, when Vita-Tech raised in an attachment to its e-mail of July 13, 2005,27 the issue that it had recently been accredited by the SCC, PWGSC emphasized that ". . . [t]he existence of a prior assessment and accreditation process ha[d] no bearing whatsoever on the CPMA's rights . . . to evaluate the capabilities of each bidder . . . ."28 Accordingly, although PWGSC indicated that it did in fact extrapolate from the SCC accreditation process to some extent in evaluating Vita-Tech's bid, Vita-Tech should not reasonably have considered that PWGSC was required to do any extrapolation.

48. Regarding extrapolation of other knowledge, the Tribunal notes that PWGSC did indicate in communication with bidders that some extrapolation of drug screening capabilities could be performed. The Tribunal believes however that PWGSC's communications should reasonably have made bidders aware that it intended to exercise considerable discretion in the use of extrapolation in determining if a bidder met a particular criterion. For example, PWGSC stated that only ". . . given a representative sample of validation data plus details of the methods [can] a technical review team . . . evaluate the reasonableness of the claims made by the bidder for their methodology . . . ."29 The Tribunal also notes that Vita-Tech did not, in its submissions during the complaint process, direct the Tribunal to places in its bid where it had attempted to substantiate its capability by indicating how and why PWGSC should extrapolate.

49. In light of the foregoing, the Tribunal does not consider that PWGSC acted unreasonably in its decisions on whether to extrapolate information in evaluating Vita-Tech's proposal.

50. Vita-Tech also argued that it did not receive points for some parts of its proposal where it had provided adequate substantiation, particularly item 2A, and that PWGSC required bidders to provide more information than had been requested in the RFP. As discussed above, the tender documentation clearly stated that detailed substantiation was required. Vita-Tech's submissions directed the Tribunal to little information in its bid that substantiated its capabilities or demonstrated its expert knowledge.

51. In addition to the above arguments, Vita-Tech alleged that PWGSC had made other errors in its evaluation and that these errors adversely affected its final score. This included allegations that PWGSC:

· disallowed all reference standards from a particular source, owing to PWGSC's misinterpretation that Vita-Tech, where it claimed to be using the standard, was in fact using instrument data as its source, thus affecting its score in item 1.A;

· unjustifiably limited its ability to score well in item 1.B because of its narrow interpretation of what was deemed to be an acceptable testing process;

· unjustly barred viable alternatives that would have allowed for broad-ranged drug screening because the primary contractor was unable to do business with a particular supplier; and

· misinterpreted portions of the information provided in Table C.3.2 as part of its proposal.

52. After a careful review of the evidence concerning all of the errors alleged by Vita-Tech, the Tribunal does not conclude that PWGSC acted unreasonably when it scored the proposal in the manner that it did. Regarding the first error allegation noted above, Vita-Tech did not direct the Tribunal to any reference in its bid that indicated that the standard noted by Vita-Tech was in fact a standard and was not, as evaluated by PWGSC, a reference to instrumentation data. Regarding the second error allegation, the evidence does not indicate that PWGSC evaluated item 1.B other than in accordance with the methodology provided for in the RFP. If Vita-Tech had had any concerns or questions about the wording or evaluation of this item, it should have brought them to PWGSC's attention when it first read the item. Regarding the third error allegation, the Tribunal notes that Vita-tech was made aware of the exclusion of certain kits during the solicitation period and that this allegation was therefore put forward outside of the allowable time frame for complaints. Regarding the fourth error allegation, the Tribunal reviewed PWGSC's evaluation sheets and Vita-Tech's Table C.3.2 and did not consider that the evidence indicated that PWGSC misinterpreted the table, as alleged.

53. Based on the foregoing, the Tribunal concludes that the second ground of complaint is not valid.

54. Given its conclusion that there was no breach of Chapter Ten of NAFTA or of the AGP, the Tribunal does not need to consider further Article 1018 of NAFTA or Article XXIII of the AGP.

Costs

55. The Tribunal will award PWGSC its reasonable costs incurred in responding to the complaint.

56. The Guideline contemplates classification of the level of complexity of complaint cases based on three criteria: the complexity of the procurement; the complexity of the complaint; and the complexity of the complaint proceedings. The complexity of the procurement was medium, in that it involved a defined service project on an as-required basis. The complexity of the complaint was medium, in that the issue was an evaluation based on mandatory and rated criteria and involved all three trade agreements. Finally, the complexity of the complaint proceedings was high, as there was one intervener, the parties submitted additional information beyond the normal scope of proceedings, and the 135-day time frame was required. Accordingly, the Tribunal is of the preliminary view that this complaint case has an overall complexity level corresponding to the middle level of complexity referred to in Appendix A of the Guideline (Level 2). As contemplated by the Guideline, the Tribunal's preliminary indication of the amount of the cost award is $2,400. The Tribunal reserves jurisdiction to establish the final amount of the award.

DETERMINATION OF THE TRIBUNAL

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

58. 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 Vita-Tech. The Tribunal's preliminary indication of the level of complexity for this complaint case is Level 2, and its preliminary indication of the amount of the cost award is $2,400. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated by the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the award.

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

2 . S.O.R./93-602 [Regulations].

3 . S.O.R./91-499.

4 . North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA].

5 . Vita-Tech's comments on the GIR, para. 37.

6 . RFP, section C.2.2, rated criteria, item 2.A.

7 . Vita-Tech's comments on the GIR, para. 35.

8 . GIR, Exhibit 11.

9 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.intrasec.mb.ca/index_en/ait.htm> [AIT].

10 . This table was provided to all bidders. It contained a listing of 315 different drugs and included blank spaces next to each drug for bidders to fill in with information about the methods that they would use to test a sample to find the drug in question, its level of concentration, etc.

11 . RFP, section C.2.0.

12 . GIR, Exhibit 9 at 3.

13 . GIR, Exhibit 7.

14 . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].

15 . This was the threshold at the time. The threshold fell to CAN$84,000 effective January 1, 2006.

16 . Re Complaint Filed by MAXXAM Analytics Inc. (7 October 2005), PR-2005-024 (CITT).

17 . GIR, para. 25.

18 . Complaint Binder 1, Tab 3.

19 . GIR, Exhibit 11.

20 . Complaint, Binder 1, Tab 1.

21 . Re Complaint Filed by Polaris Inflatable Boats (Canada) Ltd. (23 June 2003), PR-2002-060 (CITT).

22 . RFP at 12.

23 . Ibid.

24 . RFP at 46.

25 . GIR, Exhibit 7 at 2.

26 . GIR, Exhibit 9 at 1.

27 . Complaint, Binder 1, Tab 11.

28 . GIR, Exhibit 9 at 3.

29 . Ibid..