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TABLE OF CONTENTS

• DETERMINATION OF THE TRIBUNAL
• STATEMENT OF REASONS
  • PROCUREMENT PROCESS
  • TRIBUNAL’S ANALYSIS
    • Costs
  • DETERMINATION OF THE TRIBUNAL

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IN THE MATTER OF a complaint filed by Promaxis Systems Inc. pursuant to 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 pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN

PROMAXIS SYSTEMS INC. Complainant

AND

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES Government Institution

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 Promaxis Systems Inc. Pursuant to the Guideline for Fixing Costs in Procurement Complaint Proceedings, the Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Canadian International Trade Tribunal, as contemplated in article 4.2 of the Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal retains jurisdiction to establish the final amount of the award.

André F. Scott
André F. Scott
Presiding Member

Dominique Laporte
Dominique Laporte
Secretary

Tribunal Member: André F. Scott, Presiding Member

Director: Randolph W. Heggart

Senior Investigator: Michelle Mascoll

Counsel for the Tribunal: Nick Covelli

Complainant: Promaxis Systems Inc.

Counsel for the Complainant: Martin G. Masse
Corinne E. Brûlé

Intervener: L-3 Communications MAS (Canada) Inc.

Government Institution: Department of Public Works and Government Services

Counsel for the Government Institution: Susan D. Clarke
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:

1. On April 16, 2010, Promaxis Systems Inc. (Promaxis) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ concerning a procurement (Solicitation No. W8484-096157/B) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the provision of publication maintenance services.

2. Promaxis alleged that PWGSC improperly declared its bid non-compliant with two mandatory technical requirements. Promaxis alleged in particular that PWGSC improperly determined that one of Promaxis’ proposed translators did not have the requisite secret security clearance.

3. Promaxis requested, as a remedy, that the Tribunal recommend that PWGSC terminate the contract awarded to L-3 Communications MAS (Canada) Inc. (L-3) and conduct a re-evaluation of Promaxis’ bid. Promaxis also requested that, in the event that PWGSC determined that Promaxis should have been awarded the contract, PWGSC award the contract to Promaxis and compensate Promaxis for the profit that it would have earned between April 1, 2010, and the date on which the contract would be awarded to Promaxis. As an alternative, Promaxis requested that it be compensated for, inter alia, the profit that it would have earned had PWGSC conducted the procurement in accordance with Canada’s trade obligations and awarded the contract to Promaxis. In addition, Promaxis requested the reimbursement of its reasonable costs incurred in preparing and proceeding with the complaint.

4. On April 23, 2010, pursuant to subsection 30.13(2) of the CITT Act and rule 101 of the Canadian International Trade Tribunal Rules,² the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions for inquiry set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.³

5. On April 28, 2010, PWGSC confirmed that a contract had been awarded to L-3.

6. On May 6, 2010, the Tribunal granted PWGSC an extension of time to file a Government Institution Report (GIR). The Tribunal granted a further extension on May 17, 2010.

7. On June 3, 2010, PWGSC filed a GIR with the Tribunal in accordance with subrule 103(2) of the Rules.

8. On June 4, 2010, pursuant to section 30.17 of the CITT Act, the Tribunal granted L-3 leave to intervene in the inquiry. However, L-3 failed to file subsequent submissions.

9. On June 15, 2010, pursuant to subrule 104(1) of the Rules, Promaxis filed comments on the GIR.

10. Neither the parties nor the intervener requested that a hearing be held. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that an oral hearing was not required and disposed of the complaint on the basis of the written information on the record.

PROCUREMENT PROCESS

11. On January 8, 2010, PWGSC issued the Request for Proposal (RFP) at issue.

12. The RFP reads as follows:

PART 1 – GENERAL INFORMATION

. . . 

2. Summary

. . . 

There is a security requirement associated with this requirement. For additional information, consult Part 6 – Security, Financial and Other Requirements, and Part 7 – Resulting Contract Clauses. Bidders should consult the “Security Requirements for PWGSC Bid Solicitations – Instructions for Bidders” (http://www.tpsgc-pwgsc.gc.ca/app-acq/lc-pl/lc-pl-eng.html#a31) document on the Departmental Standard Procurement Documents Web site.

. . . 

PART 4 – EVALUATION PROCEDURES AND BASIS OF SELECTION

. . . 

1.1.1 Mandatory Technical Criteria

. . . 

M.5 . . . 

The bidder must propose at a minimum the following number of resources for each category of personnel:

. . . 

Two (2) Translators with a Secret security clearance . . . .

M.7 The Bidder must meet the security requirements outlined in article 3, Security Requirement of Part 7 – Resulting Contract Clauses at time of bid closing . To show compliance, the Offeror must:

. . . 

b) provide the following information for each individual proposed by the bidder (including sub-contractor resources) who will require access to protected/classified, NATO unclassified, and NATO classified information, assets or sensitive work sites:

- Name of individual as it appears on the security clearance application form;
- Level of security screening obtained (i.e. Reliability Status, Secret, NATO Secret);
- Identification Number – this number is provided by the Canadian Industrial Security Directorate [CISD] of PWGSC when issuing a security clearance to an individual.

. . . 

PART 6 – SECURITY, FINANCIAL AND OTHER REQUIREMENTS

1. Security Requirement

1. At the date of bid closing , the following conditions must be met:

(a) the Bidder (including sub-contractors) must hold a valid organization security clearance as indicated in article 3 of Part 7 – Resulting Contract Clauses;

(b) the Bidder’s proposed individuals (including sub-contracted resources) requiring access to classified or protected information, assets or sensitive work site(s) must meet the security requirements as indicated in article 3 of Part 7 – Resulting Contract Clauses;

(c) the Bidder must provide the name of all individuals (including sub-contracted resources) who will require access to classified or protected information, assets or sensitive work sites.

2. For additional information on security requirements, bidders should consult the “Security Requirements for PWGSC Bid Solicitations – Instructions for Bidders” (http://www.tpsgc-pwgsc.gc.ca/app-acq/lc-pl/lc-pl-eng.html#a31) document on the Departmental Standard Procurement Documents Web site.

. . . 

PART 7 – RESULTING CONTRACT CLAUSES

. . . 

3. Security Requirement

. . . 

2. The Contractor personnel requiring access to PROTECTED/CLASSIFIED information, assets or sensitive work site(s) must EACH hold a valid personnel security screening at the level of RELIABILITY STATUS or SECRET as required, granted or approved by the [Canadian Industrial Security Directorate], PWGSC.

13. The online document entitled “Security Requirements for PWGSC Bid Solicitations – Instructions for Bidders”,⁴ referenced in article 2 of Part 1 and article 1.2 of Part 6 of the RFP, provides the following:

5. If the Bidder wishes to propose the services of an individual who has been screened by a government department or agency other than CISD of PWGSC, the Bidder must contact CISD and request either a transfer or a duplicate of the reliability status or the security clearance of the individual. CISD will then explain to the Bidder which steps need to be followed.

Screening timelines may vary depending on the security level requested. If the security requirements are mandatory at bid closing time, the Bidder is advised that all security requirements must be met before bid closing, including any required transfer or duplicate of an existing reliability status or security clearance.

14. On January 14, 2010, Promaxis sent an e-mail to PWGSC, asking whether PWGSC would consider the security requirements to be met if an application to the CISD for the secret security clearance had been made though not received.⁵ On January 15, 2010, PWGSC replied that it would not consider this as meeting the requirement. PWGSC responded that mandatory technical requirement M.7 states that the bidder must meet the security requirements outlined in the RFP at the time of bid closing.⁶

15. On January 26, 2010, Promaxis filed an application with the CISD with respect to a duplication of the proposed translator’s DND secret security clearance.⁷ Promaxis did not indicate that the closing date of the RFP was approaching.

16. The CISD received this application on January 27, 2010, and assigned it an identification number.

17. On January 28, 2010, the CISD asked DND to transfer its security clearance file for review.

18. On the same day, PWGSC issued amendment No. 3 to the RFP, which extended the bid closing date from January 29 to February 3, 2010.

19. On January 29, 2010, DND advised the CISD that the proposed translator had a DND secret security clearance and confirmed that it would locate and transfer the file to the CISD in due course.

20. On February 2, 2010, PWGSC issued amendment No. 5 to the RFP, which further extended the closing date to February 5, 2010.

21. On February 5, 2010, the date of bid closing, PWGSC received six proposals, including one from Promaxis.⁸ In its proposal, Promaxis submitted the information relevant to the proposed translator’s DND security clearance.⁹

22. On February 8, 2010, the CISD made an initial assessment of Promaxis’ application with respect to the proposed translator and gave it the status of “Pending”.

23. On February 12, 2010, as part of the bid evaluation process, PWGSC’s contracting officer contacted the CISD to confirm that Promaxis’ proposed personnel, including the proposed translator, had the requisite security clearances. The CISD responded that the status of the proposed translator’s application was “Pending”.¹⁰ As a result, PWGSC’s contracting officer determined that Promaxis’ proposal was compliant with all the mandatory technical requirements with the exception of M.5 and M.7.

24. The CISD finally received DND’s security file for the proposed translator on March 2, 2010.

25. On March 12, 2010, the CISD advised Promaxis that its application would not be completed until a proof of Canadian citizenship was provided.

26. On March 24, 2010, PWGSC awarded a contract to L-3.

27. On March 26, 2010, Promaxis learned of the contract award and that its proposal had been determined to be non-compliant.

28. On March 30, 2010, in response to a request from Promaxis, PWGSC provided Promaxis with a copy of the evaluation grid for its proposal.

29. Later on March 30, 2010, Promaxis wrote to PWGSC objecting to the determination that its proposal was declared non-compliant and the determination that its proposed translator did not meet the security requirements as set out in the RFP.

30. On March 31, 2010, PWGSC advised Promaxis that the matter would be reviewed.

31. Also on March 31, 2010, the CISD finally granted Promaxis’ application for duplication of the proposed translator’s DND security clearance.

32. On April 1, 2010, after reviewing the matter with the CISD, PWGSC wrote to Promaxis, advising it that a review had been conducted and that PWGSC stood by its determination that Promaxis’ proposal was non-compliant with the security requirements of the RFP.¹¹

33. Ten working days later, on April 16, 2010,¹² Promaxis filed its complaint with the Tribunal.

TRIBUNAL’S ANALYSIS

34. 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. 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 provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, in this instance, is the Agreement on Internal Trade. ¹³

35. Article 506(6) of the AIT provides that “[t]he tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria.”

36. Promaxis submits that PWGSC conducted the procurement in a manner inconsistent with Article 506(6) of the AIT by (1) improperly construing mandatory technical requirement M.5 to require a CISD secret security clearance, (2) failing to recognize evidence that Promaxis’ proposed translator held a secret security clearance that met mandatory technical requirements M.5 and M.7 and (3) failing to recognize that the requirement to obtain the requisite security clearance applied only once the contract was awarded.

37. PWGSC submits that the security requirements set out in the RFP should be read together, as is generally the case with the provisions of solicitations. It submits that the mandatory requirements, taken together, specify the following security requirements:

(1) the proposed translator must hold a secret security clearance;

(2) the required secret security clearance must be a clearance from the CISD; and

(3) the required CISD security clearance must be in place and effective on the date of bid closing.

38. Promaxis submits that PWGSC’s interpretation that all the requirements of the RFP must be read together is a revised set of mandatory security requirements that appears nowhere in the RFP and that it is not open to PWGSC to read into mandatory technical requirement M.5 that the secret security clearance must be issued by the CISD.

39. Promaxis submits that its proposed translator held a secret security clearance certified by DND—the client department for the solicitation—and was therefore in a position to perform the translation work required under the RFP.

40. PWGSC submits that, as the department responsible for the procurement, it must ensure that all the security requirements in a solicitation are met, either through a CISD clearance or, where another government department has issued a security clearance, by reviewing the security clearance, requiring additional information or documentation, as necessary, and providing an independent approval of the security clearance (duplication)—a process that can take up to six weeks given backlogs in the file transfer process.

41. PWGSC submits that its determination that Promaxis’ proposal was non-compliant with the mandatory requirements of the RFP was reasonable and in accordance with its responsibilities. PWGSC submits that the text of mandatory technical requirement M.7, article 1 of Part 6 and article 3 of Part 7 of the RFP make it clear that the CISD secret security clearance was required at the date of bid closing. When PWGSC contacted the CISD on February 12, 2010, to verify whether the security clearance was in place for the proposed translator, the CISD advised that the review process was pending and that the required security clearance had not been granted by the date of bid closing.

42. Promaxis acknowledges that mandatory technical requirement M.7 requires that a secret security clearance be “required, granted or approved” by the CISD, but submits that nothing in the RFP indicates that a CISD security clearance must be issued or in place by bid closing. Promaxis further submits that article 3 of Part 7 of the RFP is a requirement of contractor personnel and that the proposed translator had the required security clearance in place when the contract was awarded.¹⁴

43. The Tribunal is of the view that the individual provisions of an RFP must not be read in isolation, but in the context of the RFP as a whole. A contextual reading of a provision in an RFP is necessary to discern the intentions of the procuring entity and to promote the attainment of the whole purpose of the solicitation.

44. With this principle in mind, the Tribunal first observes that article 2 of Part 1 (“GENERAL INFORMATION”) of the RFP brings to the bidders’ attention that there is a “security requirement” associated with the RFP. The use of the singular, rather than the plural, is significant, as it indicates that all matters of security in the RFP are intertwined. Part 1 then refers the reader specifically to Part 6 and Part 7, as well as to the online document, “Security Requirements for PWGSC Bid Solicitations”. This sets the stage for the reader in terms of the security matters to be addressed in the RFP.

45. Part 6 of the RFP is entitled “SECURITY, FINANCIAL AND OTHER REQUIREMENTS”. Article 1 is subtitled “Security Requirement”. This article provides that, at the “ date of bid closing ”, certain “conditions must be met”. Some significant points are worth noting from this language: (1) the use of the word “must” indicates that the conditions are mandatory requirements; and (2) these mandatory requirements must be met at the date of bid closing. The article then lists among these mandatory requirements that must be met at the date of bid closing the security requirements “indicated in article 3 of Part 7”. In addition, as in Part 1, there is a reference to the online document “Security Requirements for PWGSC Bid Solicitations”. These cross-references confirm the view that the security conditions discussed in the RFP are interrelated and must be read together.

46. Article 3 (“Security Requirement”) of Part 7 of the RFP requires that the “Contractor personnel” each hold a valid security screening “as required, granted or approved” by the CISD. The choice of the term “Contractor” rather than “Bidder” or “Offeror” could suggest that the security clearance need only be held when the contemplated contract work is undertaken. However, in light of the wording of article 1 of Part 6, it is clear that, in fact, the security clearances must be in place “at the date of bid closing”.¹⁵

47. The Tribunal also observes that the wording of article 3 of Part 7 of the RFP could suggest that the relevant security clearance need not be issued or granted by the CISD. Article 3 instead indicates that the security clearance could be “required” or “approved” by the CISD. Read in isolation, it would seem that the personnel in question could hold a security clearance that the CISD recognizes, but which has been issued or granted by another organization (e.g. DND, NATO). However, article 3 cannot be read in isolation.

48. Mandatory technical requirement M.7 in Part 4 of the RFP further reinforces the Tribunal’s opinion that the security requirements cannot be read in isolation, since it adds that “to show compliance” with the security requirements outlined in article 3 of Part 7 at the time of bid closing, the “Offeror” must submit each individual’s level of security screening obtained and an “Identification Number”. This list clarifies that the Identification Number is the number provided by the CISD “when issuing” the security clearance. Thus the bidder must satisfy PWGSC that, at the date of bid closing, each individual has the requisite level of security clearance from the CISD.

49. This view is confirmed by the wording of the online document entitled “Security Requirements for PWGSC Bid Solicitations – Instructions for Bidders”, which is incorporated into the RFP by reference in article 2 of Part 1 and article 1 of Part 6 of the RFP. Paragraph 5 of this document specifically addresses the situation in which Promaxis found itself, whereby a bidder wishes to propose individuals who hold a security clearance from a government department or agency other than the CISD. In that case, the paragraph states that “. . . the Bidder must contact CISD and request either a transfer or a duplicate of . . . the security clearance of the individual” and that, “[i]f the security requirements are mandatory at bid closing time, the Bidder is advised that all security requirements must be met before bid closing, including any required transfer or duplicate of an existing reliability status or security clearance.”

50. The final provision of the RFP that has a direct bearing on this inquiry is mandatory technical requirement M.5 in Part 4. Read in isolation, mandatory technical requirement M.5 simply requires the bidder to propose translators with “Secret security clearance”. There is no reference as to when the clearance must be held, but the use of the present tense implies that the proposed translators must have the secret security clearance presently, i.e. at the time of bidding. There is also no reference to the issuing government department or organization, which, on its own terms, suggests that the translators could hold a secret security clearance from any organization (e.g. DND), not necessarily the CISD. However, reading mandatory technical requirement M.5 in this manner would ignore the other security-related provisions of the RFP, which make it clear that the security clearances in question must be issued by the CISD by the time of bid closing.

51. For the foregoing reasons, the Tribunal agrees with PWGSC that the RFP required Promaxis to propose a translator who held a secret security clearance issued by the CISD at the date of bid closing.

52. This requirement was underscored by PWGSC in its e-mail to Promaxis on January 15, 2010, and Promaxis seems to have understood this requirement as such, as its subsequent belated attempt to obtain a duplicate secret security clearance from the CISD suggests.

53. In previous determinations, the Tribunal has found that procuring entities must evaluate bidders’ conformance with mandatory requirements thoroughly and strictly.¹⁶ Accordingly, the evidence on file indicates that PWGSC acted reasonably in its determination that Promaxis’ proposal was non-compliant with the requirements of the RFP. Given that Promaxis then proposed a translator in its bid who did not already have a secret security clearance from the CISD at the date of bid closing, it was more than reasonable for PWGSC to conclude that Promaxis’ bid was non-compliant with the mandatory security criteria set forth in the RFP.

54. The Tribunal therefore finds that the complaint is not valid.

Costs

55. The Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint. In determining the amount of the cost award for this complaint case, the Tribunal considered its Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline), which contemplates classification of the level of complexity of cases based on three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.

56. The Tribunal’s preliminary view is that this complaint has a complexity level corresponding to the first level of complexity referred to in Appendix A of the Guideline. The procurement was not complex, as it was for the delivery of a routine service. The complaint was not complex, as it primarily dealt with one single issue, whether or not PWGSC incorrectly determined that Promaxis’ proposal was non-compliant with the mandatory requirements of the RFP. The complaint proceedings were not complex, as there were no motions, one intervener and no additional submissions by parties.

57. Accordingly, as contemplated by the Guideline, the Tribunal’s preliminary indication of the amount of the award is $1,000.

DETERMINATION OF THE TRIBUNAL

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

59. 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 Promaxis. Pursuant to the Guideline, the Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated in article 4.2 of the Guideline. The Tribunal retains jurisdiction to establish the final amount of the award.

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

² . S.O.R./91-499 [Rules].

³ . S.O.R./93-602 [Regulations].

⁴ . http://www.tpsgc-pwgsc.gc.ca/app-acq/lc-pl/lc-pl-eng.html#a31, accessed on July 20, 2010.

⁵ . PWGSC confidential exhibit 4.

⁶ . PWGSC confidential exhibit 5.

⁷ . Confidential complaint, tab 16.

⁸ . GIR, para. 28.

⁹ . Confidential complaint, tab 15 at 34.

¹⁰ . PWGSC confidential exhibit 19.

¹¹ . PWGSC confidential exhibit 25.

¹² . April 2 and 5, 2010, respectively Good Friday and Easter Monday, were not “working days” and were therefore not included in the computation of time.

¹³ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT]. The procured services are classified under Goods and Services Identification Number (GSIN) T000G, a sub-category of the general Category T that includes communications support products, among others. In accordance with Section A of Annex 1001.1b-2 of the 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), all classes of services under Category T are excluded from coverage. Annex 4 of the Agreement on Government Procurement, 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP], provides a list of the services that are covered; the services included in GSIN T000G are not listed in Annex 4 and are therefore not covered by the AGP. In accordance with Section A of Annex Kbis-01.1-4 of Chapter Kbis of the Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50 (entered into force 5 July 1997), all classes of services under Category T are excluded from coverage. In accordance with Section A of Annex 1401.1-4 of the Free Trade Agreement between Canada and the Republic of Peru, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-... (entered into force 1 August 2009), all classes of services under Category T are excluded from coverage.

¹⁴ . Promaxis submitted the following from the Tribunal’s decision in Re Complaint File by Quatratech Services Inc. (26 January 2000), PR-99-032 [Quatratech], as support for its assertion that the wording of article 3 of Part 7 of the RFP specifically referred to the contractor’s responsibilities and, as such, could only be required after contract award: “Concerning Quatratech’s allegation that ADGA [Group Consultants Inc.]’s candidate did not hold, at the time of bidding, the security clearances required by the solicitation documents, the Tribunal notes that both paragraph 1.4 of the [Statement of Work] and article 1.3 of the [supply arrangement] use the term ‘Contractor’ and, therefore, are only applicable once the contract is awarded. In addition, the application of article 1.3 of the [supply arrangement] is strictly limited to the contractor’s personnel who require access to designated or classified information, assets or sensitive work sites, and DND was in a position to determine when the candidate was required to access designated or classified information.”

¹⁵ . In this respect, Quatratech is distinguishable. The solicitation documents in that case included no stipulation that the requisite security clearances were required at bid closing.

¹⁶ . Re Complaint Filed by IBM Canada Ltd. (5 November 1999), PR-99-020 (CITT) at 6; Re Complaint Filed by Bell Mobility (14 July 2004), PR-2004-004 (CITT) at 6.