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TABLE OF CONTENTS

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

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IN THE MATTER OF a complaint filed by Adware Promotions Inc., Canadian Spirit Inc., Contractual Joint Venture 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
ADWARE PROMOTIONS INC., CANADIAN SPIRIT INC., CONTRACTUAL JOINT VENTURE	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 valid in part.

Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that it is not appropriate to recommend a remedy.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Adware Promotions Inc., Canadian Spirit Inc., Contractual Joint Venture its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by the Department of Public Works and Government Services. 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 the Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal retains jurisdiction to establish the final amount of the award.

Dominique Laporte
Dominique Laporte
Secretary

Tribunal Member:	Ellen Fry, Presiding Member
Director:	Randolph W. Heggart
Senior Investigator:	Cathy Turner
Counsel for the Tribunal:	Eric Wildhaber
Complainant:	Adware Promotions Inc., Canadian Spirit Inc., Contractual Joint Venture
Intervener:	Rideau Recognition Solutions Inc.
Counsel for the Intervener:	Ronald D. Lunau Stephanie Pearce
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Susan D. Clarke Ian McLeod Karina Fauteux

Please address all communications to:

COMPLAINT

1. On February 8, 2010, Adware Promotions Inc., Canadian Spirit Inc., Contractual Joint Venture (Adware) 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. 42001-070468/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Treasury Board Secretariat for the management of the Long Service Award Program and the Instant Award Program.

2. Adware alleged that PWGSC evaluated its proposal improperly in relation to the reference check portion of the evaluation criteria for the Instant Award Program. Adware requested, as a remedy, that the Tribunal recommend that PWGSC re-issue the solicitation. In the alternative, Adware requested that the Tribunal recommend that PWGSC compensate it for its lost profits. Adware requested the reimbursement of its reasonable costs incurred in preparing and proceeding with the complaint and its bid preparation costs.

3. On February 17, 2010, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.²

4. On February 19, 2010, PWGSC informed the Tribunal that two standing offers had been issued to Rideau Recognition Solutions Inc. (Rideau). On March 2, 2010, the Tribunal granted a request by Rideau for intervener status. On March 25, 2010, PWGSC filed a report with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules ³ (the Government Institution Report). On April 1, 2010, Adware filed its comments on the Government Institution Report. On April 8, 2010, Rideau filed its comments on the Government Institution Report.

5. 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

6. On July 29, 2009, PWGSC published a Request for a Standing Offer (RFSO) for the management of the Long Service Award Program and the Instant Award Program. Bids closed on September 30, 2009. According to PWGSC, six proposals were received, including one from Adware. With respect to the Instant Award Program, three proposals, including that of Adware, met the mandatory requirements.

7. On December 23, 2009, PWGSC advised Adware, in writing, that, although its proposal was compliant with the mandatory requirements, it was not compliant with the minimum requirements for Stage 2, “Point-rated Technical Criteria”. As a result, it was disqualified and did not move on to Stage 3 of the evaluation. Later that day, Adware requested a debriefing and information on the reason why its proposal was deemed non-compliant.

8. On January 5, 2010, PWGSC advised Adware via e-mail that for the Instant Award Program, Adware’s company client references did not provide responses, that its proposal therefore received no points for that criterion and that, consequently, its proposal did not obtain the minimum points required to move on to the next evaluation stage.

9. According to the complaint, on January 28, 2010, a debriefing was held.

10. On February 8, 2010, Adware filed its complaint with the Tribunal.

TRIBUNAL’S ANALYSIS

11. 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, are the Agreement on Internal Trade,⁴ the North American Free Trade Agreement ,⁵ the Canada-Chile Free Trade Agreement ⁶ and the Agreement on Government Procurement. ⁷

12. 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.”

13. Article 1013(1)(h) of NAFTA provides that “[w]here an entity provides tender documentation to suppliers, the documentation shall contain all information necessary to permit suppliers to submit responsive tenders . . .” including “the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders . . . .”

14. Article 1015(4)(a) of NAFTA provides that “to be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation and have been submitted by a supplier that complies with the conditions for participation”. Article 1015(4)(d) provides that “awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation”.

15. The AGP and the CCFTA contain provisions similar to those found in NAFTA.⁸

16. The RFSO contained provisions for PWGSC to conduct reference checks, which are discussed in detail below.

17. On November 27, 2009, PWGSC sent an e-mail to the contact person at Adware’s first company client reference using the e-mail address provided in Adware’s proposal.⁹ The e-mail indicated that the contact person had three working days to respond to PWGSC’s request for information and that failure to do so would result in Adware’s proposal being awarded no points for references. The e-mail also requested that the contact person acknowledge receipt of the e-mail. PWGSC indicated that, after failing to receive a response from the contact person, it made three attempts to reach the individual by telephone. According to PWGSC, voice messages were left for the contact person, but the calls were never returned.¹⁰

18. On November 27, 2009, PWGSC also sent an e-mail to the contact person at Adware’s second company client reference.¹¹ The e-mail indicated that the contact person had three working days to respond to PWGSC’s request for information and that failure to do so would result in Adware’s proposal being awarded no points for references. That day, PWGSC received an automatically generated e-mail from the system administrator indicating that the e-mail had not been delivered because the address was unknown. On December 1, 2009, according to PWGSC, two attempts were made to reach the contact person by telephone at the number provided in Adware’s proposal. According to PWGSC, voice messages were left for the contact person, but the calls were never returned.¹²

19. In an e-mail dated January 21, 2010, the contact person from Adware’s second company client reference advised Adware that he had never received a telephone call from PWGSC. In an e-mail dated January 27, 2010, the back-up reference person from Adware’s first company client reference advised Adware that she had never been contacted by PWGSC.

20. Adware alleges that PWGSC did not act appropriately in contacting its company client references and that, as a result, PWGSC improperly gave its proposal no points for the reference check portion of the evaluation criteria. Specifically, it alleges that PWGSC:

21. In contacting company client references, PWGSC was required to follow the requirements in the tender documents, pursuant to the provisions of the applicable trade agreements. Annex “C” of the RFSO contained the following requirements pertaining to company client references:

1.3 Identification of two (2) projects similar in nature and scope to this requirement performed within the last three (3) years, including a description of the monetary value; complexity; duration; list of tasks and responsibilities of personnel; web-based; any major problems and how they were resolved;

(Maximum: 80 points/Minimum: 56 points)

1.4 Identification of one (1) client reference per project as referred to at 1.3

(Maximum: 60 points/Minimum: 42 points)

The Standing Offer Authority (PWGSC) will contact the client reference in writing to confirm the requested information. The client reference will have three (3) working days from issuance of the request to provide a response to PWGSC. In the event PWGSC is unable to contact the reference person indicated, the Crown reserves the right to contact the back-up reference person, who will then have three (3) working days from the request to provide a response to PWGSC. Should PWGSC be unsuccessful in obtaining a response from the references, within the specified delay, the Offer will receive zero (0) points for this criteria.

The following information is required:

1) Company name:

Address:

Contact Person:

Back-up Person:

Telephone/Fax:

Email:

22. Amendment No. 001 to the RFSO¹³ included the following question and answer regarding the timing of the evaluation process:

Question 2: Can you please clarify the timeline on the first 3 stages of the selection process, after September 30 2009?

Response: We anticipate the following timeline for the first three (3) stages:

The proposals being evaluated for stage 1 and stage 2 should be completed within a one (1) month period. The evaluation for stage 3 . . . should be completed between a two (2) to three (3) weeks period.

As for the final evaluation, it should be completed in its entirety by the end of November 2009.

23. Amendment No. 001 to the RFSO also included the following question and answer regarding the company client reference process:

Question 26: Will we be able to set up times for you to call our references to make sure people are available for questions?

Response: As stated on page 43, article 1.4, the Standing Offer Authority (PWGSC) will contact the client reference in writing to confirm the requested information. The client reference will have three (3) working days from issuance of the request to provide a response to PWGSC. In the event PWGSC is unable to contact the reference person indicated, the Crown reserves the right to contact the back-up reference person, who will then have three (3) working days from the request to provide a response to PWGSC. Should PWGSC be unsuccessful in obtaining a response from the references, within the specified delay, the Offer will receive zero (0) points for this criteria.

24. The RFSO also contained a general statement indicating that the onus was on the bidder to provide information in a clear manner:

The onus is on the Offeror to clearly and distinctly provide the information as requested and not on the Evaluator to search for the response, in order to asses the score.

25. As part of its response to clauses 1.3 and 1.4 of Annex “C” to the RFSO, Adware’s proposal contained a table with boxes which provided information for its two company client references under the following headings: “Client Organization”, “Address” and “Contact Person and backup”.¹⁴

26. The Tribunal notes that clause 1.4 of Annex “C” to the RFSO required bidders to provide both a street address and an e-mail address and did not require a facsimile number, but gave bidders the opportunity to provide one. Adware did not provide the street addresses for its company client references in the section of the table titled “Contact Person and backup”. However, its response to clause 1.4 cross-references the information provided for clause 1.3 as a whole. Taken together with a reasonable reading of the requirements of clause 1.3, this leads the Tribunal to conclude that the information in the “Address” section of the box should reasonably have been read by the evaluators as being the street address required for the company client references under “Contact Person and backup”, as required by clause 1.4. Given the way that this part of the proposal was organized by Adware, the Tribunal does not consider that Adware needed to actually put the street address into the “Contact Person and backup” section of the table in order to discharge its onus under this requirement of the RFSO.

27. Adware did not indicate that it provided facsimile numbers. In light of this and the evidence of the PWGSC employee who called the contact persons’ telephone numbers, it is reasonable to conclude that the telephone numbers provided by Adware (shown in the proposal under “Telephone/Fax”) were not also facsimile numbers and, hence, that Adware did not provide facsimile numbers for its company client references.

28. PWGSC provided an affidavit sworn by the PWGSC employee who attempted to contact Adware’s company client references, together with copies of relevant e-mails and contemporaneous handwritten notes regarding telephone calls.¹⁵ Adware provided e-mails from the two company client references. According to the affidavit, the PWGSC employee attempted to contact the two company client references by e-mail, but not by regular mail. Adware does not dispute this.

29. For Adware’s first company client reference, the affidavit indicates that PWGSC tried to reach the contact person using the e-mail address provided by Adware, followed up with two telephone calls (leading to voicemail messages) and did not receive any response. In its complaint, Adware provided an e-mail from the back-up person for that company client reference that indicated that she had not been contacted. However, there is no evidence from the contact person for that company client reference, and the back-up person’s e-mail does not indicate whether the contact person received any communication.

30. For Adware’s second company client reference, the affidavit indicates that the PWGSC employee tried to communicate with the contact person using an e-mail address that was not the precise address provided by Adware. The affidavit does not explain why the employee did not use the precise e-mail address provided. The Government Institution Report offers a possible explanation, but this is strictly hypothetical, since the evidence from the employee does not indicate whether this explanation is correct. The affidavit states that an error message was received in response to the e-mail and that the PWGSC employee then called the telephone number provided for that contact person, a process that led to a voicemail message and an unsuccessful attempt to speak to a person at the “reception desk” number. The PWGSC employee sent a second e-mail to a slightly different address, in an attempt to correct what he thought was a typographical error in the proposal, but received a second error message. The PWGSC employee did not receive any response to the telephone calls.

31. In its complaint, Adware provided an e-mail from the contact person for the second company client reference that indicated that he had never received a telephone call. This e-mail showed an address which was different from the one provided in the proposal.

32. Accordingly, there is conflicting evidence from the parties regarding PWGSC’s attempts to communicate with the company client references.

33. Regarding Adware’s first company client reference, PWGSC provided an affidavit, sworn by the employee who attempted to communicate with the contact person, together with copies of the relevant e-mails and contemporaneous handwritten notes. Adware provided an e-mail from the back-up person, which does not directly address attempts to communicate with the contact person. The Tribunal considers that the type of evidence provided by PWGSC is of better quality than that provided by Adware and, therefore, to the extent that the parties’ evidence conflicts in this area, the Tribunal accepts PWGSC’s evidence.

34. Regarding Adware’s second company client reference, PWGSC also provided an affidavit, sworn by the employee who attempted to communicate with the contact person, together with copies of the relevant e-mails and contemporaneous handwritten notes. Adware provided an e-mail from the contact person which addresses PWGSC’s alleged telephone call. Concerning the telephone call, PWGSC has provided higher-quality evidence, given that it is in the form of an affidavit sworn by its employee; therefore, to the extent that the parties’ evidence conflicts in this area, the Tribunal accepts PWGSC’s evidence. Concerning PWGSC’s attempts to communicate with the contact person by e-mail, the address in the e-mail provided by Adware appears to indicate that Adware provided an incorrect e-mail address in its proposal and therefore supports PWGSC’s evidence that attempts to use the e-mail address provided in the proposal were unsuccessful.

35. The issue is whether, based on this evidence, PWGSC complied with the requirements of the tender documents.

36. PWGSC was required by the RFSO to communicate with the contact person “in writing”. Neither the RFSO nor the other documents incorporated by reference in the RFSO define the term “in writing”.¹⁶ Although it is clear from normal usage that a hard copy document sent by regular mail is sent “in writing”, it is not clear whether an e-mail also falls into this category.

37. Rideau, the intervener, argued that, because the contact person for the company client reference is only given three working days “. . . from issuance of the request to provide a response to PWGSC . . .”, the RFSO must have considered e-mail communications to be “in writing”. The Tribunal does not agree that this is necessarily the case, since it could be argued that, for a hard copy communication sent by regular mail, the request is not “issued” until it is delivered to the recipient and that a reference who responds by regular mail does not “provide a response” until its letter is delivered to PWGSC.

38. However, given the fact that e-mail messages are written and that there would be no apparent reason to require bidders to provide the e-mail address for the company client reference in response to rated criterion 1.4 if e-mails were not to be interpreted as “in writing”, the Tribunal concludes that e-mail communications should be considered to be “in writing” for the purposes of this requirement. Therefore, there is no requirement for PWGSC to use regular mail instead of, or in addition to, e-mails in order to comply with the requirements of the tender documents.

39. For Adware’s first company client reference, it is clear that PWGSC complied with the requirement to communicate with the contact person in writing.

40. However, for Adware’s second company client reference, PWGSC did not use the e-mail address provided in the proposal in its attempts at written communications. PWGSC’s two e-mail attempts both use slight variants of the e-mail address provided in the proposal. The evidence indicates that the PWGSC employee’s purpose in using both variants was in fact to be proactive to try to find a successful address. The evidence also indicates that the address provided in the proposal was incorrect and, hence, that an e-mail communication sent to the address provided in the proposal would not have been successful. However, notwithstanding these circumstances, the fact is that PWGSC did not use the address that the bidder provided, as required by the RFSO.

41. The Tribunal does not agree with Adware’s argument that PWGSC should have contacted Adware when attempts to communicate with the contact persons for the company client references failed. The RFSO does not require PWGSC to do this.

42. Adware argued that the contents of PWGSC’s communications with the company client references were inappropriate because the communications incorrectly identified the bidder as “Adware Promotions Inc.” and did not identify the PWGSC employee as part of the Government of Canada. The Tribunal disagrees. Adware’s proposal makes it clear that identifying the bidder as “Adware Promotions Inc.” was entirely appropriate.¹⁷ In addition, the RFSO does not specifically require identification as part of the Government of Canada in these communications. The Tribunal notes that the e-mails sent by the PWGSC employee to the company client references refer to the “Crown”, which indicates that the Government is involved, and provide contact information to enable the recipient to clarify the nature of the source if desired.

43. Adware argued that PWGSC communicated inappropriately because it did so outside the time period indicated by the RFSO. The Tribunal disagrees. There is no requirement in the RFSO for the reference check to take place within a specified time period. It is clear from the language of amendment No. 001 to the RFSO that the time periods given in this amendment for steps in the evaluation process are only expected time periods and not requirements.

44. Therefore, the Tribunal concludes that, for the first company client reference, PWGSC complied with the requirements in the RFSO. For the second company client reference, PWGSC did not comply because it did not use the e-mail address provided in the proposal.

45. In light of the foregoing, the Tribunal determines that PWGSC did not adhere to the requirements of the RFSO for the second company client reference, in violation of the applicable trade agreements and therefore finds that the complaint is valid in part.

Remedy

46. The Tribunal must now recommend the appropriate remedy.

47. In this regard, subsection 30.15(3) of the CITT Act provides as follows:

(3) The Tribunal shall, in recommending an appropriate remedy under subsection (2), consider all the circumstances relevant to the procurement of the goods or services to which the designated contract relates, including

(a) the seriousness of any deficiency in the procurement process found by the Tribunal;

(b) the degree to which the complainant and all other interested parties were prejudiced;

(c) the degree to which the integrity and efficiency of the competitive procurement system was prejudiced;

(d) whether the parties acted in good faith; and

(e) the extent to which the contract was performed.

48. Failure to evaluate a proposal in accordance with the criteria provided in the RFSO is clearly a deficiency in the procurement process which prejudices the integrity and efficiency of the competitive procurement system. However, in this instance, the departure from the requirements of the RFSO was a relatively minor one, which did not make any difference in the outcome of PWGSC’s attempts to communicate with the second company client reference. Although PWGSC should have used the e-mail address provided in the proposal for the second company client reference, it is clear from the evidence that this was not the correct e-mail address. In addition, the evidence does not indicate that the PWGSC employee was acting in bad faith in this regard.

49. Accordingly, the Tribunal does not consider that the competitive process would have had a different result if PWGSC had complied fully with the applicable trade agreements. Because Adware did not suffer any prejudice as a result of PWGSC’S actions, the Tribunal considers that it is not appropriate to recommend a remedy in this case.

Costs

50. The Tribunal awards Adware its reasonable costs incurred in preparing and proceeding with 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.

51. The Tribunal’s preliminary view is that this complaint case has a complexity level corresponding to the first level of complexity referred to in Appendix A of the Guideline. The procurement was relatively straightforward. The complaint was not complex, as it only involved a matter of whether references were properly contacted by PWGSC. The complaint proceedings were moderately complex, as there was an intervener. The Tribunal’s preliminary indication of the amount of the cost award is $1,000.

52. The Tribunal notes that Rideau requested its costs in intervening in the complaint. The Tribunal has discretion, under section 30.16 of the CITT Act, to award costs to or against interveners. In exercising this discretion, it generally follows the same principles as those that are applied by the courts.¹⁸

53. In this respect, the Tribunal considered the practice of the Federal Court of Canada¹⁹ and notes the guidance provided in Sawridge Band v. Canada. ²⁰ In that case, the Federal Court indicated that, while costs are not generally available to interveners, they may receive costs where their interests are directly affected by the proceedings and other factors support such an award. Such other factors include the following:

The Federal Court indicated that, in this context, a special interest of an intervener could be financial, proprietary, non-pecuniary or otherwise and that, generally, the resources of interveners should not be taken into account in determining whether or not they are entitled to costs.²¹

54. It is clear that Rideau, as the successful bidder, had a pecuniary interest in the outcome of this matter. This is the case for all, or virtually all, interveners in the Tribunal’s procurement inquiries. Rideau did not argue that there was any relevant legislation to suggest that Rideau had any other special interest. While Rideau’s argument was helpful to the Tribunal, it did not, to any significant extent, constitute a viewpoint that the Tribunal would not have otherwise considered. On balance, guided by the factors provided by the Federal Court in Sawridge, the Tribunal does not consider it appropriate to award costs to Rideau.

DETERMINATION OF THE TRIBUNAL

55. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is valid in part.

56. Pursuant to subsections 30.15(2) and (3) of the CITT Act, the Tribunal determines that it is not appropriate to recommend a remedy.

57. Pursuant to section 30.16 of the CITT Act, the Tribunal awards Adware its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by PWGSC. 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 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./93-602 [Regulations].

³ . S.O.R./91-499.

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

⁵ . 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].

⁶ . 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) [CCFTA]. Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.

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

⁸ . Article XII of the AGP provides as follows: “2. Tender documentation provided to suppliers shall contain all information necessary to permit them to submit responsive tenders, including . . . (h) the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders . . . .” Article XIII of the AGP provides as follows: “4 (a) To be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation and be from a supplier which complies with the conditions for participation. . . . (c) Awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation.” Article Kbis-06 of the CCFTA provides as follows: “1. An entity shall provide interested suppliers tender documentation that includes all the information necessary to permit suppliers to prepare and submit responsive tenders. The documentation shall include all criteria that the entity will consider in awarding the contract, including all cost factors, technical requirements and the weights or, where appropriate, the relative values, that the entity will assign to these criteria in evaluating tenders.” Article Kbis-10 of the CCFTA provides as follows: “1. An entity shall require that in order to be considered for award, a tender must be submitted in writing and must, at the time it is submitted: a. conform to the essential requirements of the tender documentation; and b. be submitted by a supplier that has satisfied the conditions for participation that the entity has provided to all participating suppliers. 2. Unless an entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the entity has determined to be fully capable of undertaking the contract and whose tender is determined to be the most advantageous in terms of the requirements and evaluation criteria set out in the tender documentation.”

⁹ . Government Institution Report, confidential exhibit 11.

¹⁰ . Ibid., confidential exhibits 4, 11.

¹¹ . Ibid., confidential exhibit 12.

¹² . Ibid., confidential exhibits 4, 12, 13.

¹³ . Ibid., exhibit 2.

¹⁴ . Ibid., confidential exhibit 3 at 58.

¹⁵ . Ibid., confidential exhibit 4.

¹⁶ . PWGSC’s Standard Instructions and Conditions 2006 – Standard Instructions - Request for Standing Offers – Goods or Services – Competitive Requirements (2008-12-12) were incorporated by reference into and formed part of the RFSO.

¹⁷ . Government Institution Report, confidential exhibit 3, Executive Summary at 2.

¹⁸ . Canada (Attorney General) v. Georgian College of Applied Arts and Technology, [2003] 4 F.C. 525.

¹⁹ . Subrule 400(1) of the Federal Courts Rules, S.O.R./98-106, provides that the federal courts “. . . have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.”

²⁰ . 2006 FC 656 (CanLII) [Sawridge].

²¹ . Sawridge at para. 40.