MIL SYSTEMS
Determinations
File No.: PR-98-038
Ottawa, Wednesday, April 14, 1999
File No.: PR-98-038
IN THE MATTER OF a complaint filed by MIL Systems under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.), as amended;
AND IN THE MATTER OF a decision to conduct an inquiry into the complaint under subsection 30.13(1) of the Canadian International Trade Tribunal Act.
DETERMINATION OF THE TRIBUNAL
Pursuant to section 30.14 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is valid.
Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal recommends, as a remedy, that the Department of Public Works and Government Services terminate the contract awarded to Fleet Technology Limited and award it instead to MIL Systems.
Pursuant to subsection 30.16(1) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards MIL Systems its reasonable costs incurred in relation to filing and proceeding with this complaint.
Raynald Guay
_________________________
Raynald Guay
Presiding Member
Michel P. Granger
_________________________
Michel P. Granger
Secretary
Date of Determination: April 14, 1999
Tribunal Member: Raynald Guay
Investigation Manager: Randolph W. Heggart
Counsel for the Tribunal: Gerry Stobo
Complainant: MIL Systems
Government Institution: Department of Public Works and Government Services
STATEMENT OF REASONS
COMPLAINT
On January 5, 1999, MIL Systems (MIL) 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 CITT Act) concerning the procurement (Solicitation No. W8472-8-0003/B) by the Department of Public Works and Government Services (the Department) for a concept study of an afloat logistics and sealift capability (ALSC) design for the Department of National Defence (DND).
MIL alleged that, contrary to the provisions of the Agreement on Internal Trade [2] (the AIT), the Department erred in its application of the evaluation criteria set out in the Request for Proposal (RFP) when evaluating MIL’s proposal. More specifically, MIL objected to the points deducted by the Department and DND in the subcontractor section of “Ability to do the Work” and “Delivery and Schedule.” MIL requested, as a remedy, that it receive the contract awarded to Fleet Technology Limited (FTL).
On January 8, 1999, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the conditions set out in section 7 of the Canadian International Trade Tribunal Procurement Inquiry Regulations [3] (the Regulations). On February 5, 1999, the Department filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules. [4] On February 22, 1999, MIL filed preliminary comments on the GIR with the Tribunal and its last comments on March 5, 1999. That same day, the Tribunal wrote to the Department requesting additional information on three questions dealing with the evaluation criteria in the RFP and the evaluation of MIL’s and FTL’s proposals. On March 10, 1999, the Department responded to the Tribunal’s letter of March 5, 1999, and MIL submitted its comments in response on March 15, 1999.
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 disposed of the complaint on the basis of the information on the record.
PROCUREMENT PROCESS
On August 24, 1998, the Department received a requisition from DND for the provision of a concept study of an ALSC design. The objective of the study was to determine the relative capabilities, costs and risks of a range of possible ship design options for the replacement of fuel and supplies on DND ships at sea, as well as sealift and joint forces ashore support functions.
On August 27, 1998, the Department posted a letter of interest (LOI) on Canada’s Official Electronic Tendering Service (MERX) for the requirement, which was detailed in an RFP with a closing date of October 14, 1998, subsequently extended to October 16, 1998.
The LOI, a notice for information only, included the following under the header “Procurement Events and Dates”:
Request For Proposal Issue Date: September 2, 1998
Bid Closing Date: October 14, 1998
Estimated Contract Award Date: October 28, 1998
Proposals were evaluated in two stages in accordance with the pre-established evaluation criteria found in section 10 of the RFP. Proposals were first evaluated for compliance with mandatory requirements. In the second stage of the evaluation, proposals were evaluated against rated criteria.
Section 07 of the RFP, “Deliverables Schedule and Cost,” identified the deliverables and specified that the delivery dates were identified by weeks “After Award of Contract.” It further specified that the requested delivery for the various deliverables was 20 or 68 weeks, subsequently amended to read “within 20 or 68 weeks.” Each item to be delivered included the following note: “(see NOTE 2 below) … The Bidder is to identify which one of the design concepts will be delivered within 20 weeks after award of contract.”
Section 09 of the RFP, “Milestone Payment Schedule,” reads, in part: “Payment will be made in accordance with the milestones and percentages stated hereunder subject to final negotiation and agreement.” (Emphasis added)
Section 10 of the RFP, “Evaluation,” reads, in part:
To be considered responsive, a bid must:
(a) meet all the mandatory requirements of this solicitation and Bidders shall indicate that they have met all mandatory requirements by completing the table hereunder:
(b) obtain the required overall minimum of 60 percent of the points for the evaluation criteria as provided in the table hereunder:
Bids not meeting (a) or (b) above will be given no further consideration.
Section 06, “Deliverables and Price,” of Part 2 of the RFP, “Proforma Contract,” reads, in part:
The following deliverables are identified by weeks from Award of Contract (AOC) and shall be delivered on the applicable date in accordance with the following.
The category “Delivery and Schedule” was a rated requirement given a maximum allotment of 100 points and assigned a weight factor of 0.15. The RFP stated that the responsive proposal, which scored the highest number of rated points would be recommended for contract award, provided the total price did not exceed the financial limit of $270,000.
Paragraph 9, “Level of Effort,” of “DND Statement of Work - Annex ‘01’” provided that the funds for payment of the concept study were to be divided over two fiscal years, i.e. $90,000 in 1998-1999 and $180,000 in 1999-2000.
“DND Statement of Work - Annex ‘01’” stated at paragraph 10, “Schedule:”
The study is to be completed by 31 March 2000. The proposed schedule must be matched to the phasing of the funds noted above. It is highly desirable that the development of one of the concepts be completed by 31 March 1999.
“Statement of Work - Annex D, Proposal Evaluation (Technical and Managerial)” detailed requirements that would be evaluated as mandatory requirements and as rated criteria. Paragraph 21, “Delivery and Schedule (100 points),” stated:
Develop and set out the various stages in the project. Define the content and timing of the deliverables as well as progress meetings etc. In particular, define the work to be accomplished by the Interim Report stage (i.e. March 1999). The funding phasing, for this project, requires the completion of two of the concepts by the Interim Report stage.
On October 14, 1998, the Department forwarded a copy of all the questions submitted and the answers given with respect to the solicitation documents to all interested bidders. The answer to question No. 15 indicated that, contrary to the requirement stated in paragraph 21 quoted above, completion of only “one of the concepts” was required. The answer to question No. 25 provided the same clarification in respect of paragraph 21. The answer to question No. 35, for its part, clarified that no additional points would be given for delivery prior to the requested dates, as it was desired that delivery be made at any time within the number of weeks identified, while bearing in mind the fiscal year funding constraint.
Four companies submitted proposals, including MIL and FTL.
The evaluation team was comprised of the Department’s contracting officer and five DND officials with specialized expertise (four engineers and one procurement officer).
According to the Department, the proposals meeting all mandatory requirements were rotated among the five DND evaluators until each member had evaluated each proposal. Individual evaluators examined and scored each area of the proposals independently. The individual evaluations were transferred to a single spreadsheet. Subsequently, two resolution sessions were held to identify areas where scores differed and to establish a team consensus on each one. This was done, criterion by criterion, for each proposal.
MIL addressed “Delivery and Schedule” in three places in its proposal. The proposal reads, in part, under section 5.2.3, “Work Plan”:
The work plan associated with this ALSC Option Study is described in Section 6 of this proposal.
Milestones are indicated on the schedule as Milestones 1 to 8 with the following tentative completion dates based on 16 November, 1998, start date:
• Milestone 4 Final ALSC New Design - Report and Existing AOR Design and Ro-Ro Ship Identification 06 Apr 99
MIL’s proposal further reads, in part, under section 6.0:
MIL Systems’ project schedule is shown in Figure 6-1. This schedule covers in detail the four ALSC vessel options being offered by MIL Systems within the project funding, namely:
• New Multi-Purpose (ALSC) Design;
• Existing AOR (Auxiliary Oiler Replenishment) Design;
• Existing Sealift (Ro-Ro) Ship(s);
The schedule shown in Figure 6-1 identifies the timing of all deliverables, progress meetings and milestones. The progress meetings and milestones have been listed and expanded upon in Section 5 of this proposal.
Work to be completed by the Interim Report stage (i.e., March 1999) will be the new multi-purpose (ALSC) design. MIL Systems will also by this stage have identified available AOR designs and Ro-Ro Ships, gathered information on applicable ships and evaluated TSOR compliance for these vessels. (Emphasis added)
Figure 6-1, to which MIL referred in its proposal as identifying the timing of all deliverables, shows the date for delivery of the final report for the new ALSC design as April 1, 1999, and Milestone 4 as April 6, 1999.
On November 16, 1998, the Department wrote FTL seeking clarification as follows:
Art 3.1 [of the FTL proposal] includes the following text “… Thus, at the end of the first stage (March 1999), a large number of outline designs will have been developed and preliminarily ranked on both performance and cost grounds. By the end of the project, the preferred concept in each of the five option areas will have been brought to a more detailed level of performance and cost definition”. Table 5.7 shows the existing AOR and existing Sealift concepts being delivered after 20 weeks. Will these deliverables include “outline” concepts, as indicated in the text above, or “detailed” concepts as required for final deliverables and suggested by Table 5.7?
That same day, FTL responded to the Department in writing, in part, as follows: “FTL will deliver complete packages for both the existing AOR and the Sealift concepts by Week 20, as indicated by Table 5.7.”
According to the GIR, it was the unanimous decision of the evaluators to award MIL’s proposal a rated score of 95 points out of a maximum of 100 points for the category “Delivery and Schedule” because it specified April 1 and 6, 1999, for delivery of the final report for the new ALSC design, while the highly desirable requirement date was March 31, 1999. For its part, FTL was rated the full 100 points for this category.
Following the tabulation of the aggregate scores for each criterion for all the proposals, the final overall score of FTL’s proposal was 93.5 and that of MIL’s proposal was 92.9. On November 19, 1998, a contract was awarded to FTL.
VALIDITY OF THE COMPLAINT
Department’s Position
Concerning the assessment of the evaluation category “Delivery and Schedule,” the Department submitted that, this category being a rated requirement, it was MIL’s responsibility to prepare a proposal that fully substantiated the technical requirements in order to obtain the highest rated score. The Department further submitted that the members of the evaluation team rated MIL’s proposal based on all the information provided thereinto. Although MIL indicated in the narrative, under the section “6.0 Delivery and Schedule” of its proposal, that the new multi-purpose (ALSC) design would be completed by March 1999, the Department submitted that the evaluators correctly considered the specific delivery dates in April 1999 specified in Figure 6-1 of MIL’s proposal.
The Department submitted that MIL’s commitment to deliver a draft final report for the new ALSC design on March 11, 1999, does not fully satisfy the highly desirable requirement that the delivery of the concept be completed by March 31, 1999.
Furthermore, the Department submitted that no clarification was sought from MIL because its proposal at Figure 6-1 clearly indicated delivery of only a draft report before March 31, 1999, to be followed by review, comment and delivery of a final ALSC design together with Milestone 4 in April 1999. The evaluators’ decision on this point was unanimous that there was no ambiguity and, therefore, no need to seek clarification.
In conclusion, the Department submitted that, where the Tribunal is satisfied that a thorough review of MIL’s proposal was conducted in a procedurally fair manner, the Tribunal must defer to the judgment of the evaluation team on specific scores. [5]
In responding to the Tribunal’s questions of March 5, 1999, the Department submitted that delivery of one completed concept by March 31, 1999, was required in order for payment to be made to the contractor in accordance with the funding phase of the contract. Completion of a concept without delivery to the Crown of such finished product, the Department submitted, renders the Crown unable to determine whether the contractor has met its obligations under the contract. Concomitantly, there is no obligation for payment by the Crown unless the contractor has submitted and accepted a completed concept design both at the interim report stage and at the final report stage.
The Department also submitted that the delivery of a “draft report” for comment as proposed by MIL in its proposal does not constitute completion, i.e. “[t]he finishing or accomplishing in full of something theretofore begun. [6] ”
In addition, the Department submitted that, for evaluation purposes, the estimated contract award date in the LOI was the starting point for calculation of both 20- and 68-week delivery dates under the RFP. No amendment to this estimated award date was made at any time prior to the closing date for submission of proposals and, therefore, 20 weeks after the estimated contract date of October 28, 1998, is March 17, 1999.
The Department finally disputed MIL’s opinion in its response to the GIR concerning the objectivity of the evaluation process. The resolution meeting referred to in the GIR, at paragraph 13, is a project management evaluation technique known as the Delphi method, which ensures that there is a common understanding of the proposals and a fully informed evaluation.
MIL’s Position
MIL submitted that the evaluation team ignored material in its proposal that was specifically relevant to its evaluation, in favour of indicators that were not consistent with the requirements of the RFP. This, MIL submitted, held its proposal to a higher standard than required by the RFP, and the same standard was not applied to FTL’s proposal.
Moreover, MIL submitted that FTL was allowed to remedy, through the answer to a clarification question, its response to a mandatory requirement that was otherwise non-compliant. MIL, however, was not asked for clarification on a non-mandatory requirement where there was a perceived, though, in MIL’s opinion, non-existent lack of clarity, as it was the completion of a concept and not the delivery of a report that was at issue.
MIL submitted that the evaluation process employed by the government lacked evaluator independence and presented the opportunity for individually assigned scores to be adjusted through debate as opposed to averaging, as is strongly suggested by the structure of the evaluation scheme in the RFP. This, MIL suggested, goes well beyond the consideration of additional information derived from clarification questions, as contemplated by the RFP, and undermines the impartiality of the evaluation, especially in the case of a solicitation characterized as “best level of effort for available funding,” where competition on price does not exist.
MIL submitted that the evaluation of its proposal was seriously flawed and resulted in the contract being awarded to FTL. The Tribunal, MIL submitted, should not defer to the judgment, as reflected in the rated score, of the evaluation team on the specific issue of “Delivery and Schedule.”
On the issue of Milestone 4 and the associated date of April 6, 1999, MIL submitted that the term “Milestone” has a very specific meaning within the RFP and relates to terms of payment rather than to delivery and schedule. Moreover, MIL submitted that Milestone 4 is a payment milestone which covers a mix of tasks and, in such circumstances, a milestone date hinges on achieving the last element in the mix. In that sense, the milestone date does not, in isolation, tell when any of the component elements will be achieved. MIL further submitted, on this point, that there are two references in the RFP, “DND Statement of Work - ‘01’” and “Statement of Work - Annex D” as amended, which required one of the concepts to be completed by the end of March 1999, with no mention in either reference of a delivery date or that the requirement for completion is contingent on the date of contract award.
MIL took exception to the Department’s assertion in the GIR that FTL’s statement in its proposal under heading 5.7 clearly indicated that two concepts would be completed by March 31, 1999. In fact, MIL submitted that, given that the clarification question and answer addressed to FTL are both dated November 16, 1998, and given further that all that FTL committed to in its response was to “deliver complete packages for both the existing AOR and the Sealift concepts by Week 20” after contract award, the only assurance that the Department had was that, if a contract were awarded the very next day, there would be a complete package delivered by April 6, 1999, being 20 weeks after November 17, 1998.
MIL submitted that there is no requirement in the RFP, mandatory or otherwise, to deliver anything by March 31, 1999. Deliveries, MIL submitted, are all in accordance with section 07 of the RFP, which specifies everything by week after contract award. What is required as a highly desirable requirement is one concept study to be completed, but not necessarily delivered, by a set date, i.e. March 31, 1999.
MIL submitted that, in response to this unique request, it offered in its proposal [7] an unequivocal guarantee that the new multi-purpose ALSC design would be completed by March 31, 1999. Given the absence in the RFP of a definition of what “completed” means, MIL submitted that the guarantee in its proposal, in this regard, stands on its own. In addition, this guarantee, MIL submitted, is buttressed by MIL’s commitment in its proposal to submit the draft report for the new ALSC design for DND’s comments by the middle of March 1999.
In summary, MIL submitted that its proposal was not evaluated fairly and consistently. A higher test than required by the RFP (delivered v. completed) was applied to its proposal by the evaluators, and MIL was refused access to a simple clarification in the face of a perceived disagreement between two statements contained in its proposal. However, according to MIL, FTL failed to substantiate compliance with a mandatory requirement, i.e. delivery. Notwithstanding this, FTL was given an opportunity to alter a direct statement in its proposal. Furthermore, FTL was granted a full 100 points for “Delivery and Schedule” when it made no commitment to complete a single concept prior to March 31, 1999. These discrepancies, MIL submitted, are not insignificant and support MIL’s position that its proposal was not evaluated in accordance with the provisions of Article 506(6) of the AIT. MIL submitted that it clearly won this competition and that the contract was only awarded to FTL because the evaluation criteria were not applied in a fair and consistent manner.
In its comments on the Department’s response of March 10, 1999, MIL submitted that there were no milestone conditions or prerequisites in the RFP and that, if the Crown’s intent was that a completed concept be delivered by March 31, 1999, in order for the $90,000 identified for fiscal year 1988-99 to be paid, then this intent was never explicitly or implicitly stated.
Concerning the definition of the word “completion” proposed by the Department, MIL submitted that it is satisfactory in the context of this discussion. However, MIL submitted, in the absence of specific contradictory requirements, the service provider’s assessment of when something has been finished or accomplished in full must prevail because it is the one producing the deliverables.
Concerning the Department’s statement that “[c]ompletion of a concept without delivery to the Crown … renders the Crown unable to determine whether the Contractor has met its obligations under the contract,” MIL submitted that the completion of a concept study by March 31, 1999, is only a highly desirable requirement of the RFP, not a mandatory requirement. Therefore, such a request only implies a good faith commitment on the part of the contractor to meet a very general goal. MIL added that not only was it wrong for the Department to state that there was a requirement in the RFP that a completed concept be delivered by March 31, 1999, but this error is now compounded by the Department’s statement that one concept was to be delivered and accepted by that date.
Moreover, MIL submitted that the LOI has no status in this solicitation. It is not referred to under the RFP, it was not referenced when the closing date for the submission of proposals was amended and, by its very terms, it is a document for information only. There is no contract award date specified in the RFP and, MIL submitted, it is inappropriate to use a date in the evaluation process that is contained in a document that has been placed outside the solicitation documentation.
On the question of the evaluation of FTL’s proposal, MIL submitted that the only way that FTL’s response to the Department’s clarification question of November 16, 1998, could satisfy the evaluators that delivery of the completed concepts fully met the requirements of the RFP is to ignore the fact that the response confirmed delivery by Week 20 after November 16, 1998.
Finally, MIL submitted that the information now available, that the LOI was used in the evaluation process, further validates MIL’s position that not only was its proposal unfairly penalized, but FTL’s proposal was granted points that it clearly did not deserve.
TRIBUNAL’S DECISION
Section 30.14 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, in part, that the Tribunal is required to determine whether the procurement was conducted in accordance with the AIT.
Article 501 of the AIT reads, in part: “the purpose of this Chapter is to establish a framework that will ensure equal access to procurement for all Canadian suppliers.”
Article 506(6) of the AIT provides, in part: “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.”
The Tribunal will determine whether the Department, in evaluating MIL’s and FTL’s proposals, correctly applied the evaluation criteria set out in the RFP, specifically those relating to “Delivery and Schedule,” and whether the Department applied these criteria consistently to MIL’s and FTL’s proposals.
In the Tribunal’s opinion, the RFP clearly indicated that it was highly desirable that one concept study be completed by March 31, 1999. The RFP also clearly indicated that the delivery dates would be computed on a “week from contract award” basis. While these references to dates by which one concept study was to have been performed were not contradictory, they were not necessarily in alignment. The Department seemed to have tangled the estimated date for the award of the contract with the fiscal year financial considerations. Unfortunately, given the actual contract award date, these dates were not the same.
The Tribunal is satisfied that the “Milestones” in the RFP are primarily set out to signify payment dates, [8] not delivery or study completion dates, and, consequently, the Department and DND could not rely on the date of Milestone 4 to determine when MIL would complete the ALSC concept study. Moreover, the Tribunal notes that there is no contract award date, estimated or firm, set out in the RFP. In the Tribunal’s opinion, the estimated contract award date of October 28, 1998, set out in the LOI, was never imported into the solicitation documents and, consequently, could not be relied upon by the Department in evaluating proposals. Only if the contract date were October 28, 1998, or earlier, would the following 20-week period result in a completion date of the first report by March 31, 1999. October 28, 1998, was, in the wording of the LOI, only an estimation for information purposes.
The Tribunal is satisfied that MIL, in its proposal and consistent with the wording in the RFP, committed to completing one concept study by March 31, 1999. [9] Moreover, in the Tribunal’s view, FTL’s proposal did not, contrary to the Department’s conclusion, commit to completing at least one concept study by March 31, 1999. Rather, it appears that FTL committed to “deliver[ing] complete packages for both the existing AOR and the Sealift concepts by Week 20” [10] which would, at the earliest, have been on or about April 8, 1999.
Despite these erroneous conclusions about both MIL’s and FTL’s proposals, the Department and DND deducted five evaluation points from MIL’s proposal for not committing to the “delivery” of one concept study by March 31, 1999, yet none were deducted from FTL’s proposal. But for this deduction from MIL’s proposal, MIL would have received the most points in the evaluation. Given the above findings, the Tribunal concludes that the Department improperly penalized MIL’s proposal by five evaluation points for failing to deliver one concept study by March 31, 1999. In the Tribunal’s opinion, there was no such requirement set out in the RFP.
The Tribunal also finds that FTL only committed to delivering the concept studies by Week 20 from the award of contract which, at its earliest, would have been after March 31, 1999. However, the Department appears to have relied on the estimated contract award date provided in the LOI which, as was mentioned earlier, cannot be said to inform the RFP in any way.
Accordingly, the Tribunal finds that, contrary to the provisions of Article 506(6) of the AIT, the Department improperly penalized MIL’s proposal at the time of evaluation by applying an evaluation criterion not set out in the RFP and that it also failed to apply an evaluation criterion set out in the RFP in assessing FTL’s proposal. The complaint, therefore, is valid.
In addressing the appropriate remedy in this instance, the Tribunal notes that, everything else being equal, had the Department evaluated MIL’s and FTL’s proposals consistently and in accordance with the RFP in respect of the evaluation category “Delivery and Schedule,” MIL would have obtained more evaluation points than FTL and, therefore, would have been awarded the contract. A possible remedy in the circumstances would be to recommend that MIL be asked to complete the work initiated by FTL. This is to say, the Tribunal could recommend that MIL be given the contract to complete the work to be undertaken during fiscal year 1999-2000. However, it appears to the Tribunal that the concept studies contemplated by the RFP are closely interlinked. As a result, it is not feasible to award to MIL only that part of the work which was to be performed in fiscal year 1999-2000. To properly conduct the studies, it appears to the Tribunal that MIL will need to build on work that was to be performed in the initial phase of the project. Taking into consideration the fact that the requirement to complete one concept study by March 31, 1999, was not a mandatory requirement of the RFP, only a highly desirable requirement, and further considering that MIL is confident that it still can complete the overall requirement within the time frames set out in the RFP, the Tribunal will recommend that the Department terminate the contract awarded to FTL and award it instead to MIL. The Tribunal is aware that its recommendation to award MIL the contract will result in FTL’s services being terminated part way through the execution of the contract. However, the Tribunal has rarely seen a procurement case before where the error made by the Department has had such obvious consequences. But for this error, MIL would be performing the work.
RECOMMENDATION OF THE TRIBUNAL
In light of the foregoing, the Tribunal determines, in consideration of the subject matter of the complaint, that the procurement was not conducted in accordance to the requirements set out in the AIT and that, therefore, the complaint is valid.
Pursuant to subsections 30.15(2) and (3) of the CITT Act, the Tribunal recommends, as a remedy, that the Department terminate the contract awarded to FTL and award it instead to MIL.
In view of the recent comments by the Federal Court [11] regarding the nature of recommendations made by the Tribunal under its bid dispute authority, the Tribunal does not need to address lost profit/lost opportunity costs pursuant to section 30.15 of the CITT Act. As well, the Tribunal need not deal with bid preparation costs in view of its recommendation. However, pursuant to subsection 30.16(1) of the CITT Act, the Tribunal awards MIL its reasonable costs incurred in relation to filing and proceeding with this complaint.
1. R.S.C. 1985, c. 47 (4th Supp.).
2. As signed at Ottawa, Ontario, on July 8, 1994.
3. SOR/93-602, December 15, 1993, Canada Gazette Part II, Vol. 127, No. 26 at 4547, as amended.
4. SOR/91-499, August 14, 1991, Canada Gazette Part II, Vol. 125, No. 18 at 2912, as amended.
5. See Mirtech International Security Inc., Canadian International Trade Tribunal, File No. PR-96-036, Determination of the Tribunal, June 3, 1997.
6. Black's Law Dictionary, 5th ed. (Minnesota: West Publishing, 1979) at 258.
7. MIL's proposal, section 6.0, "Delivery and Schedule."
8. RFP, section 09.
9. Supra note 7
10. FTL's proposal, Table 5.7.
11. Wang Canada Limited v. Minister of Public Works and Government Services, Court File No. T-944-98, September 9, 1998 (F.C.T.D.); and Attorney General of Canada v. Symtron Systems Inc., Court File No. A-687-97, February 5, 1999 (F.C.A).
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Initial publication: April 14, 1999