File No. PR-2019-031 NORLEANS Technologies Inc. v. Department of Public Works and Government Services

Determination issued Friday, January 17, 2020 Reasons issued Friday, January 31, 2020

 

TABLE OF CONTENTS

DETERMINATION.. i

STATEMENT OF REASONS. 1

SUMMARY OF COMPLAINT. 1

PROCUREMENT PROCESS. 1

COMPLAINT PROCEEDINGS. 4

POSITIONS OF THE PARTIES. 5

ANALYSIS. 5

Norleans’ first ground of complaint 6

Norleans’ second ground of complaint 8

Norleans’ third ground of complaint 9

Conclusion. 10

COSTS. 10

DETERMINATION OF THE TRIBUNAL. 10

 

IN THE MATTER OF a complaint filed by NORLEANS Technologies Inc. pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.);

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

BETWEEN
NORLEANS TECHNOLOGIES INC.	Complainant
AND
THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES	Government Institution

DETERMINATION

Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is not valid.

Each party will bear its own costs.

The statement of reasons will be issued at a later date.

 

Tribunal Panel:	Cheryl Beckett, Presiding Member
Support Staff:	Martin Goyette, Counsel
Complainant:	NORLEANS Technologies Inc.
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Susan D. Clarke Roy Chamoun Nick Howard Benjamin Hiemstra
Intervener:	Felix Technology Inc.

Please address all communications to:

The Registrar
Secretariat to the Canadian International Trade Tribunal
333 Laurier Avenue West
15th Floor
Ottawa, Ontario  K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
E-mail: citt-tcce@tribunal.gc.ca

 

STATEMENT OF REASONS

SUMMARY OF COMPLAINT

[1]               On September 6, 2019, NORLEANS Technologies Inc. (Norleans) 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] The complaint concerns a Request for a Standing Offer (RFSO) (Solicitation No. W8486-184760/A) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the procurement of containers to support operations undertaken by the Canadian Armed Forces.

[2]               This was the second complaint filed by Norleans in respect of this RFSO. In its first complaint, Norleans challenged PWGSC’s decision to award the contract to another bidder, Felix Technology Inc. (Felix). The essence of Norleans’ first complaint was that the containers proposed by Felix as part of its bid did not comply with mandatory requirement 3 of the RFSO, which required that the proposed containers be “in-service with other Armed Forces or Air Force”. The Tribunal decided not to inquire into Norleans’ first complaint on the basis that it was premature.[2] PWGSC subsequently set aside the standing offer contract awarded to Felix and informed Norleans that it would revise the requirement and issue a new RFSO. PWGSC also informed Norleans that, upon re‑analysing the bids, it had been determined that Norleans’ bid was not compliant with mandatory requirement 3, and that Norleans would not be awarded the contract.

[3]               In this second complaint, Norleans challenged PWGSC’s determination, upon re-evaluation, that its bid was non-compliant; took issue with PWGSC not granting Norleans an opportunity to remedy any shortcoming in its bid through the Phased Bid Compliance Process incorporated into the RFSO; and took issue with PWGSC’s decision not to disclose the identity of the manufacturer and model of the containers proposed by Felix in its winning bid.

[4]               As a remedy, Norleans asked that it be awarded the contract. Alternatively, Norleans sought financial compensation to reflect its lost efforts and profits as well as those of three other companies involved in its bid (the manufacturer of the container that Norleans proposed to supply, a trucking company and a customs broker/logistics services provider).

[5]               Having determined that the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations[3] had been met, the Tribunal decided, pursuant to subsection 30.13(1) of the CITT Act, to conduct an inquiry into the complaint.

[6]                The Tribunal conducted the inquiry into the validity of the complaint as required by sections 30.14 and 30.15 of the CITT Act. For the reasons provided below, the Tribunal finds that the complaint is not valid.

PROCUREMENT PROCESS

[7]               The RFSO was issued on October 11, 2018, by PWGSC. The RFSO was to establish a National Individual Standing Offer (NISO) for the procurement of three different sizes of non‑pressurized and non-vacuumed reusable containers to support operations undertaken by the Canadian Armed Forces. The closing date of the solicitation was November 21, 2018. It was later extended to January 24, 2019. There were six amendments to the RFSO.

[8]               At issue in Norleans’ complaints is a mandatory requirement set out in paragraph 3 (“Deliverables”) of the “Statement of Work” (Annex A) included in the RFSO, as amended by amendment 004 to the RFSO:

3. DELIVERABLES

The reusable containers must be in-service with other Armed Forces or Air Force. [Emphasis in original]

[9]               This mandatory requirement (hereafter “MR3”) was also incorporated in the list of mandatory technical evaluation criteria contained in Annex C – “Mandatory Technical Evaluation” – of the RFSO as last amended by amendment 005. Moreover, Annex C states the following regarding the documentation required to demonstrate compliance:

The offer must meet all the Criteria specified below to be deemed responsive. Offers that do not comply with each and every Criterion will be considered non-responsive. The Offeror must provide all necessary documentation to demonstrate compliance with the Criteria. The Offeror should reference, by writing beside the criteria below, the relevant page number(s) from their offer which demonstrate that they meet the Criterion. Each Criterion should be addressed separately. [Emphasis added]

[10]            MR3 and the need for bidders to provide supporting evidence were also restated and discussed in the Q&A to the RFSO.[4]

[11]           Part 4 of the RFSO, as amended (“Evaluation Procedures and Basis of Selection”) also included the following in sections 4.1.2.1 and 4.2:

4.1.2.1 (2017-07-31) Mandatory Technical Criteria

Offerors must demonstrate their compliance with all technical evaluation criteria detailed in Annex C, by providing substantial information describing completely and in detail how each requirement is met or addressed. Simply repeating the statement contained in the solicitation is not sufficient. . . .

. . .

4.2 Basis of Selection

An offer must comply with the requirements of the Request for Standing Offers and meet all mandatory technical and financial evaluation criteria to be declared responsive. The responsive offer with the lowest Total Evaluated Price will be recommended for issuance of a standing offer.

Only one (1) offer may be recommended for issuance of a Standing Offer.

[12]           Also of relevance to Norleans’ complaint is the “Phased Bid Compliance Process” (PBCP) (section 4.1.1 of the RFSO, as amended) applicable to this procurement. A PBCP is a process that provides bidders with an opportunity, after the bid closing date, to correct deficiencies in their bid to become compliant with certain mandatory requirements of the solicitation.

[13]           In this respect, the process described in the RFSO included three phases; only bids found to be responsive to the requirements reviewed in a particular phase would proceed to the next phase:

(a)   In Phase I (“Financial Offer”), PWGSC was to review the financial bids to determine if there was any missing information, in which case it would send a notice to the bidder identifying the missing information and specifying a time period within which to provide the information.

(b)   In Phase II (“Technical Offer”), PWGSC was to review the technical bids to identify instances where bidders had failed to meet those mandatory technical evaluation criteria that PWGSC had decided to subject to the PBCP – in this procurement, the PBCP applied to all mandatory technical criteria.^[5] PWGSC would then send a Compliance Assessment Report (CAR) to all bidders, either identifying the criteria that were not met and specifying a time period within which to provide information to remedy the failure, or stating that the bids met the criteria.

(c)   In Phase III (“Final Evaluation of the Offer”), PWGSC was to assess the bids in accordance with all the requirements contained in the RFSO.

[14]           Notwithstanding the foregoing, the RFSO stated that bidders remained solely responsible for the accuracy, consistency and completeness of their offers; that the government had no obligation or responsibility to identify any or all errors or omissions in bids; and that bids may be found to be non‑responsive at any phase even if they were found responsive in an earlier phase.[6]

[15]           The complainant submitted a bid and was informed by PWGSC on March 20, 2019, that although it satisfied the mandatory requirements, its offer was not the lowest-priced. The NISO was awarded to the only other bidder, Felix. In communications between the complainant and PWGSC taking place on the same day, the complainant asked PWGSC to identify the container proposed in the winning bid. PWGSC replied that no additional information other than that contained in the regret letter could be made public to other bidders.

[16]           A notice of the award of the contract to Felix for a value of $5,734,750.00 was published on March 21, 2019. A debrief meeting was also held shortly thereafter, on April 1, 2019.

[17]           According to Norleans, it talked to an official involved in the procurement on July 10, 2019, and during this conversation, the official identified the container proposed in the winning bid. The official indicated that the proposed containers were “new designs based on” the Tricon container manufactured by Seabox.[7]

[18]           Norleans sent an email to PWGSC on July 22, 2019, reporting its phone call with the official and indicating that it could find no reference to Seabox containers matching the specified sizes being in use with an armed force or air force, as required in the RFSO.[8] Norleans asked PWGSC to identify the containers proposed in the winning bid and the armed force or air force using those containers, so as to confirm its suspicions that the winning bid did not meet this mandatory requirement of the RFSO. Norleans reiterated its request on July 31, 2019.

[19]           Norleans filed a first complaint with the Tribunal on August 14, 2019. On August 15, 2019, the Tribunal determined that Norleans’ first complaint was premature, given that PWGSC had not yet responded at the time to the objection formulated by Norleans.[9]

[20]           On August 22, 2019, PWGSC informed Norleans that “Canada has exercised the right to set aside [the standing offer] effective immediately” and indicated that no call-ups had been made against the standing offer.[10] On the same date, PWGSC informed Felix that it was setting aside the standing offer awarded to Felix given that its offer failed to meet MR3.[11]

[21]           Norleans wrote to PWGSC on August 26, 2019, enquiring when it should expect to be awarded the contract, and explaining why it believed that it should be awarded the contract.[12] On August 29 and 30, 2019, PWGSC responded that the standing offer had been set aside and the DND requirement would be reviewed and a new RFSO would be issued. PWGSC indicated that it would not issue the standing offer to Norleans. PWGSC explained that “[w]hen we re-analysed all the responses to the RFSO we also came to the conclusion that Norleans [sic] offer was not compliant.”[13]

COMPLAINT PROCEEDINGS

[22]           On September 6, 2019, Norleans filed its complaint with the Tribunal and, on September 13, 2019, the Tribunal informed the parties that it had accepted the complaint for inquiry.

[23]           On September 26, 2019, Felix sought leave to intervene in this inquiry. On September 27, 2019, the Tribunal granted intervener status to Felix and indicated that it would issue its findings and recommendations in respect of the complaint within 135 days of the filing of the complaint pursuant to paragraph 12(c) of the Regulations.

[24]           On October 1, 2019, PWGSC requested an extension of the deadline to file its Government Institution Report (GIR). On October 3, 2019, the Tribunal granted PWGSC until October 25, 2019, to file its GIR and amended the deadlines for the intervener to file its submission and for the complainant to file its comments on the GIR and on the intervener’s submission. Following a request by Norleans, on November 1, 2019, the Tribunal extended the latter to November 12, 2019.

[25]           Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal did not hold an oral hearing. It disposed of the complaint on the basis of the written information on the record.

POSITIONS OF THE PARTIES

[26]           Norleans claimed that PWGSC and DND erred in finding that its bid did not comply with MR3. Norleans noted that during the initial evaluation process, the evaluators were confident that Norleans’ proposal did not require any clarification and that during the debrief meeting, PWGSC staff showed no concern with respect to Norleans’ proposal.

[27]           Norleans added that the re-evaluation of its bid appears to have taken place over a short time frame of seven working hours, “[a] rather remarkable accomplishment to reassemble a three[-]person team, do the evaluation with proper rigueur and draft and send a final email”.[14] Norleans noted that PWGSC did not include in its GIR the formal results of the re-evaluation of its bid by the three evaluators.

[28]           Norleans further argued that PWGSC did not offer a CAR or remedy period as per the PBCP process described in the RFSO. Norleans argued that it should have been permitted to remedy any shortcoming in its bid through the PBCP process. Norleans further noted PWGSC’s indication, in the GIR, that it had sought clarification of Felix’s proposal from Felix at the time of the initial evaluation. Norleans argued that PWGSC could, therefore, have done the same for Norleans.

[29]           Finally, Norleans took issue with the fact that the government institution refused to reveal the identity of the manufacturer and the three individual container models proposed by Felix in its winning bid.

[30]           PWGSC admitted that it initially erroneously determined that both Norleans’ and Felix’s bids were compliant. However, as required, PWGSC subsequently acted on errors that Norleans brought to its attention. Following a review of the bids, PWGSC reasonably determined that neither bid provided sufficient information or documentation to demonstrate compliance with MR3, as explicitly requested in the RFSO.

[31]           With respect to the second ground of complaint, PWGSC acknowledged that the PBCP could have been available to both bidders during the solicitation process but for the errors in the evaluation. However, PWGSC argued, since the solicitation ended with the award of the standing offer to Felix before errors were detected, the PBCP was no longer available to be used.

[32]           PWGSC submitted that there were two remedies that the Tribunal could order that would ensure the integrity of the procurement process and equal treatment of the bidders: retendering the procurement following review and clarification of the requirements, or a directed re-evaluation of the bids, permitting PWGSC to apply the PBCP with respect to MR3.

ANALYSIS

[33]           Subsection 30.14(1) of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of the complaint. 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.

[34]           Section 11 of the Regulations specifies that the Tribunal must determine whether the procurement was conducted in accordance with the requirements set out in the applicable trade agreements. In the present case, section 1.2.2 of the RFSO states that the procurement is subject to the provisions of the Canadian Free Trade Agreement (CFTA), the North American Free Trade Agreement (NAFTA), the WTO Agreement on Government Procurement (WTO-AGP), and the Canada-EU Comprehensive Economic and Trade Agreement (CETA).[15]

Norleans’ first ground of complaint

[35]           The first question before the Tribunal is whether the evaluation team erred in its re-evaluation of Norleans’ proposal when it concluded that the proposal failed to meet MR3.

[36]           In terms of a potential breach of the relevant trade agreements, the CFTA provides that a procuring entity shall “base its evaluation on the conditions that the procuring entity has specified in advance in its tender notice or tender documentation”(Article 507(3)(b)) and that, “[t]o be considered for an award, a tender shall . . . at the time of opening, comply with the essential requirements set out in the tender notices and tender documentation . . .” (Article 515(4)).

[37]           Moreover, Article 515(5) of the CFTA provides the following:

Unless a procuring entity determines that it is not in the public interest to award a contract, the procuring entity shall award the contract to the supplier that the procuring entity has determined to be capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the tender notices and tender documentation, has submitted:

(a) the most advantageous tender; or

(b) if price is the sole criterion, the lowest price.

[38]           Articles 1015(4)(a), (c) and (d) of NAFTA and Articles VIII(3)(b) and XV(4) and (5) of the WTO-AGP contain similar provisions.

[39]           The Tribunal typically accords a large measure of deference to evaluators in their evaluation of proposals.[16] The Tribunal has indicated that:

it will interfere only with an evaluation that is unreasonable and will substitute its judgment for that of the evaluators only when the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way. In addition, the Tribunal has previously indicated that a government entity’s determination will be considered reasonable if it is supported by a tenable explanation, regardless of whether the Tribunal itself finds that explanation compelling.[17]

[40]           The Tribunal has also held that the onus lies on the bidder to exercise due diligence in the preparation of its proposal to ensure that it is unambiguous and properly understood by PWGSC and that it is compliant with the requirements of the solicitation.[18]

[41]           Finally, the Tribunal has also held that while a procuring entity may in some circumstances seek clarification of a particular aspect of a proposal, it is not under any duty to do so.[19]

[42]           Applying the principles above to the facts before the Tribunal, the principal question before the Tribunal is whether the government institution was unreasonable in determining that Norleans’ bid failed to demonstrate compliance with MR3.

[43]           As noted above, the RFSO required that the containers offered already be in use by other armed forces or air force, and that the bid provide all necessary documentation to demonstrate compliance with, inter alia, this requirement. It was also clear from the Q&A included in the amendments to the RFSO that providing evidence of certification would not suffice to demonstrate compliance with MR3.[20]

[44]           The record before the Tribunal shows that following Norleans’ objection to PWGSC raising the question of the compliance of Felix’s bid with MR3, the government institution reconsidered the results of the initial evaluation of the two bids. The record shows that given the problem identified by Norleans with respect to Felix’s bid, during this re-evaluation, PWGSC applied a stricter approach to determining whether the bids demonstrated compliance with MR3.[21] PWGSC applied this stricter approach not only to Felix’s but also to Norleans’ bid, and determined that the latter failed to demonstrate that the three containers that it offered to supply were currently in service, as required by MR3.

[45]           In this respect, consistent with the requirement expressed in the RFSO, in its bid Norleans offered to supply three models of the ISU container manufactured by AAR, an American manufacturer. In its bid, Norleans asserted compliance with MR3 and stated, using varying and often ambiguous language, that the proposed ISU containers or versions thereof were in use with the Royal Canadian Air Force (RCAF), other Canadian military units and other armed forces or air forces.[22]

[46]            In addition, Norleans’ bid contained product information sheets that included general references to prior contracts of the manufacturer and contained statements concerning various certifications, including a March 2000 certification from the US Air Force for the series of containers manufactured by AAR that Norleans offered to supply.[23]

[47]           In its August 30, 2019, email, PWGSC explained that “[w]hen we re-analysed all the responses to the RFSO we also came to the conclusion that Norleans [sic] offer was not compliant.” PWGSC recalled the requirement, in Annex C of the RFSO, that bidders “provide all necessary documentation to demonstrate compliance with the criteria”, adding that Norleans’ offer “stated that the containers were in service without any supporting documents. The enclosures relied upon you [sic] merely indicated the containers were certified. That documentation did not demonstrate that the proposed containers are in-service.”[24]

[48]            The email also included an excerpt of Norleans’ bid, containing an evaluation grid to be completed by each bidder as to how its bid complied with each mandatory requirement. With respect to MR3, Norleans stated that the AAR ISU containers that it offered were in use with the RCAF and a number of other armed forces or air forces, and referred to various certifications and attachments to its proposal.

[49]           In view of the wording of the RFSO, in light of the problem identified by Norleans itself in its objection to PWGSC and of the fact that Norleans’ bid did not contain any evidence directly establishing compliance with MR3, the Tribunal cannot conclude that the government institution’s decision that Norleans’ bid failed to demonstrate compliance with MR3 was unreasonable.

[50]           With respect to this conclusion, the Tribunal notes that PWGSC submitted confidential internal documents that show that Felix’s bid was re-evaluated following the objection raised by Norleans. The documents submitted by PWGSC suggest, but do not establish, that Norleans’ bid was re-evaluated at the same time as Felix’s bid. The Tribunal would have preferred to receive evidence of a documented re-evaluation of Norleans’ bid conducted prior to PWGSC’s cancelling of the award of the standing offer to Felix. Nonetheless, the Tribunal finds no violation of the trade agreements; it is satisfied that PWGSC’s determination that Norleans’ bid was not compliant with MR3, and its decision not to award the contract to Norleans, were reasonable.

Norleans’ second ground of complaint

[51]           As second ground of complaint, Norleans argued that it should have benefited from the PBCP incorporated into the RFSO, particularly as PWGSC applied the PBCP to Felix.

[52]           Norleans failed to establish any violation of the trade agreements resulting from PWGSC’s decision not to make use of the PBCP at the re-evaluation stage. The RFSO contains several disclaimers that make it clear that the government institution had no obligation or responsibility to identify any or all errors or omissions in the bids and that bids may be found to be non-responsive at any phase even if they were found responsive in an earlier phase.

[53]           In the present case, the government institution had already completed Phase II of its evaluation without identifying any shortcomings in the two bids with respect to compliance with the mandatory requirements, including MR3. The RFSO makes it clear that this did not preclude the government institution from finding the bids non-compliant with MR3 at a later stage of the process, in this case, at the re-evaluation stage.

[54]           Moreover, contrary to Norleans’ assertion, PWGSC did not make use of the PBCP with respect to Felix’s bid. In the initial evaluation, PWGSC contacted Felix to seek a clarification pertaining to compliance of its bid with MR3.[25] Felix responded to the request for clarification.[26] In doing so, it did not provide additional documentation to PWGSC. Felix’s bid was later deemed compliant.[27]

[55]           Consistent with PWGSC’s explanations, this clarification request did not require the use of the bid repair process envisioned under the PBCP. The Tribunal has long recognized the possibility for a government institution to seek clarifications on a bid, even in the absence of a mechanism of the type of the PBCP in the present procurement. In this respect, the 2006 (2018-05-22) Standard Instructions – Goods or Services – Competitive Requirements of the Standard Acquisition Clauses and Conditions Manual (SACC), which were incorporated by reference under section 2.1 of the RFSO, explicitly provide that the government institution may, during its evaluation of bids, seek clarification or verification from bidders regarding any information provided by them.[28]

[56]           Nor did PWGSC allow Felix to supplement its bid at the re-evaluation stage through the PBCP.[29] In sum, for the period during the evaluation of the two bids, the information on record does not show that PWGSC resorted to the process envisioned under the PBCP mechanism. Therefore, the evidence does not show that PWGSC treated the two bidders differently as it relates to its use of this mechanism.

[57]           The Tribunal further notes that the parties agree that an appropriate remedy to the defective initial evaluation would be a directed re-evaluation of the bids, which would allow PWGSC to apply the PBCP to the two bids. The Tribunal has, however, found that PWGSC’s re-evaluation of the bids was not in violation of the provisions of the covered agreements. Consequently, the question of the appropriate remedy does not arise, and there is no basis for the Tribunal to disturb PWGSC’s decision to set aside the RFSO initially awarded to Felix and to retender the procurement following a clarification of DND’s requirements.

[58]           Moreover, the Tribunal notes that Norleans will have the opportunity to submit an offer in response to the retendered procurement envisioned by PWGSC and that bidders will be on an equal footing following this retendering of the procurement.

Norleans’ third ground of complaint

[59]           As third ground of complaint, Norleans took issue with PWGSC’s refusal to identify the container (manufacturer and product number) offered by the winning bidder, Felix.

[60]           Although Norleans has not identified the provisions of the covered agreements implicated in this ground of complaint, the Tribunal notes that Article 1015(6) of NAFTA and XVI(1) of the WTO-AGP impose an obligation on the procuring entity, upon request by an unsuccessful supplier, to provide pertinent information to that supplier concerning the reasons for not selecting its tender, the relevant characteristics and advantages of the tender selected and the name of the winning supplier.

[61]           This obligation is, however, subject to the obligation imposed on the procuring entity to protect confidential or commercially sensitive information. In its responses to Norleans’ demand that it identify the manufacturer and models of the containers that Felix offered to supply, PWGSC asserted that the information sought by Norleans was confidential.

[62]           The Tribunal need not decide whether PWGSC’s refusal to identify the manufacturer and models of the containers offered by Felix violated the covered agreements. Once PWGSC informed Norleans of its decision to rescind the award of the contract, this ground of complaint became moot. Moreover, Norleans was apprised of the identity of the manufacturer of the container offered by Felix (Seabox) by a government official, and this information is precisely what led it to file its first complaint.

[63]           For these reasons, this ground of complaint is not valid.

Conclusion

[64]           In light of the foregoing, the Tribunal finds that Norleans’ complaint, on all grounds, is not valid.

COSTS

[65]           Pursuant to section 30.16 of the CITT Act, the Tribunal may award costs of, and incidental to, any procurement complaint proceedings. In the present inquiry, PWGSC did not request that it be awarded its costs incurred in responding to the complaint. In view of the circumstances of this case, and given that PWGSC does not seek its costs, the Tribunal considers it appropriate that each party bear its own costs.

DETERMINATION OF THE TRIBUNAL

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

[67]           Each party will bear its own costs.