File No. PR-2020-004 J.A. Larue inc. v. Department of Public Works and Government Services

Determination and reasons issued Friday, August 7, 2020

 

TABLE OF CONTENTS

DETERMINATION  i

STATEMENT OF REASONS  1

SUMMARY OF COMPLAINT  1

PROCEDURAL BACKGROUND  1

RELEVANT PROVISIONS  2

Technical requirements  2

Evaluation process  5

ANALYSIS  5

Larue’s position  7

PWGSC’s position  8

Did PWGSC reasonably determine that Fresia’s solution met the requirements of the RFP?  9

Conclusion  12

COSTS  12

DECISION  13

 

IN THE MATTER OF a complaint filed by J.A. Larue 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
J.A. LARUE 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.

Pursuant to section 30.16 of the CITT Act, the Tribunal awards the Department of Public Works and Government Services its reasonable costs incurred in preparing the complaint, which costs are to be paid by J.A. Larue inc. In accordance with the Procurement Costs Guideline (Guideline), the Tribunal’s preliminary indication of the level of complexity for this complaint is Level 2, and its preliminary indication of the amount of the cost award is $2,750. If any party disagrees with the preliminary level of complexity or indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated in Article 4.2 of the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the cost award.

 

Tribunal Panel:	Serge Fréchette, Presiding Member
Support Staff:	Sarah Perlman, Counsel
Complainant:	J.A. Larue inc.
Counsel for the Complainant:	Nicolas Gagné
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Roy Chamoun Benjamin Hiemstra Marilou Bordeleau Benoit de Champlain
Intervener:	Fresia S.p.A.

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

[1]  On May 7, 2020, J.A. Larue inc. (Larue) filed a complaint with the Canadian International Trade Tribunal, pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, [1] regarding a request for proposals (RFP) (Solicitation No. W8476-196057/A) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence for the supply of runway snow blowers.

[2]  On May 13, 2020, the Tribunal decided to conduct an inquiry into the complaint as it met the requirements set out in subsection 30.13(1) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations. [2]

[3]  Following its inquiry into the complaint, the Tribunal finds that the complaint is not valid for the following reasons.

SUMMARY OF COMPLAINT

[4]  Larue alleged that the proposal of the successful bidder, Fresia S.p.A. (Fresia), did not conform to the essential requirements specified in the RFP and that the technical evaluation of this proposal was unfair and unreasonable in light of the information taken into consideration by the evaluation committee in awarding the contract to Fresia.

[5]  As a remedy Larue requested that the designated contract be terminated and that it be awarded to it as the second bidder having offered a greater quantity of snow blowers, [3] or that a new tendering process be launched. Larue also requested reimbursement of its complaint costs.

PROCEDURAL BACKGROUND

[6]  On May 7, 2019, PWGSC published the RFP, the closing date of which was July 12, 2019. [4] PWGSC received six proposals, including Larue’s. On December 19, 2019, Larue received a regret letter from PWGSC notifying it that, despite its proposal having been compliant, it was offering to provide only 16 snow blowers for the available funding, and that the contract was being awarded to Fresia because it was offering to provide a maximum of 22 snow blowers for the same funding. [5]

[7]  On December 20, 2019, Larue requested that PWGSC provide it with the name of the model of snow blower proposed by Fresia as well as the amount of its bid. On January 8, 2020, PWGSC indicated that it was unable to provide the name of the model of the snow blowers and referred Larue to the Access to Information and Privacy Office. Larue then filed an access to information request on January 14, 2020. On March 23, 2020, Larue received a response to its access to information request dated March 13, 2020, containing a copy of Fresia’s bid as well as correspondence between PWGSC and Fresia as to the compliance analysis.

[8]  On April 6, 2020, Larue raised an objection with PWGSC wherein it noted that the calculations provided by Fresia failed to meet the mandatory technical requirements. On April 24, 2020, PWGSC responded to the objection, indicating that it had conducted a new technical evaluation of Fresia’s proposal, and confirming that this proposal conformed to the mandatory requirements.

[9]  Larue filed its complaint with the Tribunal on May 7, 2020. The Tribunal accepted the complaint for inquiry on May 13, 2020.

[10]  On May 26, 2020, PWGSC requested an extension until June 23, 2020, to file the Government Institution Report (GIR). On May 28, 2020, the Tribunal granted the requested extension and announced that, as a result, it would issue its findings and recommendations within 135 days of the filing of the complaint, in accordance with paragraph 12(c) of the Regulations.

[11]  On May 28, 2020, the Tribunal received a letter from Fresia seeking authorization to act as intervener in the inquiry. On June 9, 2020, the Tribunal granted intervener status to Fresia and updated the time frame for receiving submissions from the parties.

[12]  On June 23, 2020, PWGSC filed the GIR with the Tribunal, in accordance with section 103 of the Canadian International Trade Tribunal Rules. [6]

[13]  Larue submitted his comments on the GIR on July 7, 2020.

[14]  On July 15, 2020, PWGSC filed a request to issue a response to Larue’s comments on the GIR, at the same time providing its submissions. On July 20, 2020, Larue objected to the filing of those submissions, but in the alternative, requested leave to file a response to them, which it also provided at the same time.

[15]  On July 21, 2020, the Tribunal granted PWGSC’s request and placed Larue’s response on the record.

[16]  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 ruled on the complaint based on the written record.

RELEVANT PROVISIONS

Technical requirements

[17]  The RFP contains the following requirements for the technical bid:

3.1 Bid Preparation Instructions

. . . 

Section I: Technical Bid

In their technical bid, Bidders should explain and demonstrate how they propose to meet the requirements and how they will carry out the Work.

Bidders should submit, with their bid, the completed Technical Evaluation Matrix.

. . . 

4.1 Evaluation Procedures

. . . 

4.1.2 Technical Evaluation

4.1.2.1 Mandatory Technical Criteria

(a) Bidders must demonstrate their compliance with all technical evaluation criteria detailed in the Technical Evaluation Matrix (TEM), by providing substantial information, including any additional information requested in the TEM, describing completely and in detail how each requirement is met or addressed. Simply repeating the statement contained in the bid solicitation is not sufficient.

. . . 

PART 5 – CERTIFICATIONS AND ADDITIONAL INFORMATION

Bidders must provide the required certifications and additional information to be awarded a contract.

The certifications provided by Bidders to Canada are subject to verification by Canada at all times. Canada will declare a bid non-responsive, or will declare a contractor in default if any certification made by the Bidder is found to be untrue whether made knowingly or unknowingly, during the bid evaluation period or during the contract period.

The Contracting Authority will have the right to ask for additional information to verify the Bidder’s certifications. Failure to comply and to cooperate with any request or requirement imposed by the Contracting Authority will render the bid non-responsive or constitute a default under the Contract

. . . 

5.2.3 Additional Certifications Precedent to Contract Award

5.2.3.1 Product Conformance

The Bidder certifies that all vehicles/equipment proposed conform, and will continue to conform throughout the duration of the contract, to all technical specifications of the purchase description(s).

This certification does not relieve the bid from meeting all mandatory technical criteria detailed in Part 4.

[18]  The relevant provisions of the document entitled “Purchase Description for Runway Snow Blower ECC 167130” (PD), which contains the technical requirements as well as the TEM, are as follows:

1.2 Instructions

a) Requirements, which are identified by the word “must”, are mandatory. Deviations will not be permitted.

. . . 

3.4 Vehicle Performance, Ratings and Dimensions

3.4.1 Performance

. . . 

b) The vehicle must maintain a minimum working speed of 40 km/h while maintaining maximum blower head capacity.

c) The vehicle must have a minimum snow blowing capacity of 4082.3 metric tons/hour (4500 short tons/hour).

. . . 

3.6 Vehicle Engine

. . . 

b) If the vehicle engine powers both the vehicle and the snow blower functions, then it must meet performance requirements in Paragraph 3.4.1 b) and c) simultaneously.

. . . 

3.14 Snow Blower

. . . 

b) The blower must be a two-stage, single ribbon auger type blower.

. . . 

3.14.1 Snow Blower Performance

a) The snow blower must have a minimum capacity of 4082.3 metric tons (4500 short tons) per hour at a minimum casting distance of 30.5 m (100 ft.) through a snow density of 600 kg/m³.

[19]  The TEM includes some of these requirements and provides them in a table for bidders to complete:

Technical Mandatory Criteria
PD Reference	PD Requirement	Bid Evaluation Requirement	Location in Bid Proposal
. . .	. . .	. . .	. . .
3.4.1	Performance b) The vehicle must maintain a minimum working speed of 40 km/h while maintaining maximum blower head capacity	Substantive Information
. . .	. . .	. . .	. . .
3.14.1	Snow Blower Performance a) The snow blower must have a minimum capacity of 4082.3 metric tons (4500 short tons) per hour at a minimum casting distance of 30.5 metres (100 ft) through a snow density of 600 kg/m3.	Substantive information including information on: -Minimum capacity -Minimum casting distance -Snow density

[20]  The TEM was modified in Amendment No. 005, although only the English version appears to have been published. In the amendment, a fourth point in the “Bid Evaluation Requirement” column for requirement 3.14.1a) was added, indicating: “Proof of testing to SAE ARP5539 or equivalent”.

Evaluation process

[21]  The evaluation of bids was carried out in three phases: (I) the evaluation of the financial bid, (II) the evaluation of the technical bid, and (III) the final evaluation of the bid.

[22]  In accordance with section 4.1.1.3 of the RFP, during phase II, PWGSC verified whether the bidders met all of the eligible mandatory requirements. In the event some of these requirements were not met, PWGSC would send a Compliance Assessment Report (CAR) specifying which requirements had not been met. The bidder could then provide additional information or clarifications in response to the CAR. PWGSC would then determine if the bid was responsive in light of that additional information and would then proceed onto phase III of the evaluation for all compliant bids.

[23]  In phase III, bids were ultimately assessed in accordance with all of the requirements of the RFP.

ANALYSIS

[24]  Subsection 30.14(1) of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of a complaint. The Tribunal must determine whether a 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.

[25]  The trade agreements stipulate that, to be considered for contract award, a bid must conform to the essential requirements set out in the tender documentation and require that government institutions award contracts in accordance with the criteria and essential requirements specified in the tender documentation. [7]

[26]  When considering whether bids are evaluated and contracts awarded in keeping with these provisions, the Tribunal applies the standard of reasonableness, typically according a great deal of deference to an evaluation panel with respect to its evaluation of proposals. The Tribunal does not, therefore, generally substitute its judgment for that of the evaluators, unless the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a proposal, have based their information on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way. The government institution’s determination will be considered reasonable if it is supported by a tenable explanation, regardless of whether or not the Tribunal itself finds that explanation compelling. [8]

[27]  According to requirement 3.6b) of the PD, where the proposed vehicles have only one engine, requirements 3.4.1b) and c) must be met simultaneously; the vehicles must therefore be capable of maintaining a minimum working speed of 40 km/h while maintaining maximum blower head capacity, as well as having a minimum blowing capacity of 4082.3 metric tons per hour. In this case, the vehicles proposed by Fresia were equipped with only one engine. [9]

[28]  In phase II of the evaluation of requirements 3.4.1b) and 3.14.1a) (which reprises some of the language found in requirement 3.4.1c)), the evaluators noted, on August 8, 2019, that they had been unable to evaluate the compliance of Fresia’s proposal with the information that was available. PWGSC thus issued a CAR in accordance with section 4.1.1.3 of the RFP allowing Fresia to provide information supporting its compliance with the mandatory technical requirements. [10]

[29]  In response, Fresia provided a table indicating how it met the requirements noted by PWGSC, including requirements 3.4.1b) and 3.14.1a) of the PD, accompanied by a few annexes which provided calculations and diagrams supporting its assertions. Following the filing of this information, the evaluators determined that Fresia’s bid proposal was in compliance with the requirements of the RFP. [11]

[30]  According to the information provided by Fresia, the vehicles in question had a total engine power of 407 kW, whereas the power required to blow 4 082.3 metric tons of snow per hour through a snow density of 600 kg/m³ was 298 kW, and the power required to maintain a speed of 40 km/h while blowing snow at maximum capacity was 99 kW. Thus, in total, the engine of the vehicles used 397 kW for requirements 3.4.1b) and c), leaving 10 kW of remaining power. [12]

Larue’s position

[31]  Larue argued that the evaluators did not apply themselves in evaluating Fresia’s bid proposal by failing to take into account certain elements of the calculation that may have impacted compliance with key elements of the RFP, and that the evaluation was therefore unfair and unreasonable.

[32]  In Larue’s opinion, the vehicles provided by Fresia did not have the necessary engine strength to meet requirements 3.4.1b) and c) simultaneously, as per requirement 3.6b). The calculation of the engine strength made by Fresia failed to consider other elements which would have an impact on the power used by the vehicles, such as the functioning of accessories and components (among other things, the cooling system fan, the alternator, the hydraulic pump, the steering pump) which required approximately 35 kW of power, as well as ground friction in operational mode. ^[13] Larue further argued that the blowing power only accounts for one of the two blowing phases (namely, the “impeller” or “turbine” phase), contrary to what is required at requirement 3.14b). According to Larue, the other phase, namely, the “auger” or “convoyeur à ruban” (ribbon conveyor) phase, required about 20% of the engine power needed for the “impeller” phase, ^[14] which would bring the power required for blowing up to 350 kW. When added to the power needed to maintain a working speed of 40 km/h, Fresia’s solution would exceed the available 407 kW of engine power. ^[15]

[33]  Larue argued that the information provided by Fresia was far from sufficient to conclude that the vehicles met the requirements of the RFP, and therefore did not constitute the detailed information required under paragraph 4.1.2.1a) of the RFP.

PWGSC’s position

[34]  PWGSC argued that the evaluation was reasonable and that it was carried out in accordance with the requirements of the RFP. PWGSC further maintained that Fresia’s bid proposal contained substantial, complete and detailed information showing that its bid met the mandatory technical evaluation criteria, as was required in section 4.1.2.1 of the RFP.

[35]  As for compliance with the requirements in question, PWGSC noted that, according to its catalogue, the vehicles provided by Fresia were capable of operating at a working speed of 40 km/h while maintaining snow blowing equipment at its maximum capacity, and that Fresia’s calculations had taken various resistance factors into account. According to those calculations, the vehicles were capable of blowing 4,082.3 tons of snow per hour at a casting distance of 30.5 m through a snow density of 600 kg/m³, taking into account load losses. In addition, the engine of the vehicles had the necessary power (407 kW) to meet requirements 3.4.1b) (98.9 kW) and 3.14.1a) (298 kW) of the PD simultaneously. ^[16]

[36]  PWGSC noted that the RFP did not require a detailed breakdown of the calculations or that bidders calculate separately the power needed to run each component of the vehicles. As for the power needed to run the accessories, this detail was not required by the RFP.

[37]  With respect to ground friction, PWGSC pointed out that Fresia had taken into account several resistance factors in its calculation of the power needed to meet the requirements, such as the resistance of the snow blower’s head, resistance due to air and snow friction against the snow blower’s head while in movement, resistance of a 3% slope, the force of resistance against vehicles’ motion on a given surface, and the force of air against the vehicles’ motion. PWGSC further argued that Fresia’s calculations were conservative: it used a 3% slope in its calculations whereas runway surfaces are generally flat or are only at a 2% slope in some cases, ^[17] and it used the gross weight of the vehicles in travelling mode rather than in work mode, where the weight of the vehicles is distributed over a larger area. ^[18]

[38]  As for the power needed for the two blowing phases, PWGSC maintained that Larue’s arguments were unfounded because the available power to operate the ribbon conveyor (“auger” phase) was that which was coming from the impeller minus energy loss, and that it was therefore false to claim that only 10 kW would be available to power it. ^[19] Fresia also provided the calculation to measure the power needed to meet requirement 3.14.1a) of the PD, in which it took into account load losses in terms of mechanical energy that turns into kinetic energy (namely, a 35% loss of power) and load losses which result from the friction of the gearing elements and heat loss (namely, a 5% loss), among other things. ^[20]

[39]  PWGSC further noted that Fresia had declared that its vehicles complied with standard SAE ARP5539, which according to PWGSC was sufficient to meet requirement 3.14.1a). ^[21] PWGSC argued that, following Talmack and Airsolid, evaluators were entitled to rely on the information and the signed certification of compliance provided by Fresia to determine that its bid was in compliance with the mandatory requirements of the RFP. ^[22] PWGSC further maintained that, in the event the vehicles provided were not to meet the requirements of the RFP once the contract had been awarded, it would then become an issue of contract administration. ^[23]

Did PWGSC reasonably determine that Fresia’s solution met the requirements of the RFP?

[40]  The Tribunal has consistently affirmed that it is incumbent on bidders to show that their bid proposal meets all of the mandatory requirements of a call for offers at the time of closing. [24] The Tribunal has also clearly indicated that it is incumbent on bidders to prepare their bid conscientiously and in accordance with the instructions in the call for offers, taking care to ensure that the information provided clearly shows that their bids comply with the requirements. [25] Put another way, bidders must carefully and explicitly draw a link, for evaluators, between details and specifications that may appear at various points in their bid to show how and why it meets the mandatory technical requirements of the RFP.

[41]  As indicated above, when reviewing the manner in which bids have been evaluated, the Tribunal applies a reasonableness standard. Thus, the issue in this case is whether PWGSC’s determination was reasonable in light of the requirements of the RFP and the information provided by Fresia. [26]

[42]  In this case, the Tribunal is satisfied that Fresia has provided, in its bid and response to the CAR, all of the necessary information to meet the mandatory technical requirements of the RFP and that PWGSC’s decision as to the compliance of Fresia’s bid proposal was reasonable.

[43]  To begin with, requirement 3.4.1b) of the PD requires that the vehicles be able to maintain a speed of 40 km/h “while maintaining maximum blower head capacity”. The wording is thus specifically limited to the engine power needed to maintain speed and that needed to operate the snow blowing element at full capacity. The detailed information requested in the TEM makes no mention of any other elements, such as accessories or ground friction. It was therefore reasonable for PWGSC not to seek such information in the calculations submitted by Fresia, to the extent that those calculations showed that the engine had the necessary power to simultaneously meet requirements 3.4.1b) and c) of the PD. In this case, the information provided by Fresia showed that the engine power of the proposed vehicles (407 kW) was sufficient to meet those two requirements simultaneously (397 kW).

[44]  It is possible to compare this situation to the one in Heiltsuk, wherein the Tribunal had determined that PWGSC’s interpretation of the expression “all required engine driven consumers” as including only “those consumers that are required to operate the vessel safely at sea and for the purpose of the Bollard Pull test as reflected by the Classification Society Bollard Pull testing” was unreasonable, as it was inconsistent with the clear wording of the criterion. [27] In this case, the expression “while maintaining maximum blower head capacity” is more precise in that it does not require that all of the functions of the vehicles in addition to speed be maintained, only those of the snow blower equipment itself.

[45]  As for Larue’s argument that the blowing power of Fresia’s vehicles does not take into account the “impeller” phase, the TEM stipulates for requirement 3.14.1a) that detailed information had to be provided, including minimum capacity, minimum casting distance and snow density, as well as proof of testing to the SAE ARP5539 standard in order to show that the snow blower had a minimum capacity of 4,082.3 metric tons per hour at a minimum casting distance of 30.5 m through a snow density of 600 kg/m³. Aside from that, the RFP did not require any particular calculations showing that the bids met the mandatory technical requirements. [28]

[46]  Given that Fresia had provided detailed information regarding, among other things, minimum capacity, minimum casting distance, snow density and compliance with standard SAE ARP5539, [29] it was reasonable for PWGSC to determine that Fresia’s bid proposal was compliant with requirement 3.14.1a). In the absence of any indication to the contrary, PWGSC was entitled to rely on the information provided by Fresia, particularly given the fact that it had submitted the certification required at section 5.2.3.1 of the RFP indicating that the proposed vehicles conformed to the technical specifications of the PD. [30]

[47]  It is well known that issues of contract administration are outside of the jurisdiction of the Tribunal. [31] In CAIRSS, the Tribunal stated the following:

. . . in evaluating the proposals, Transport Canada was entitled to rely on Adminserv’s declaration in Appendix H without contravening the provisions of the RFP documents or of Article 506(6) of the [Agreement on Internal Trade]. If it became known after the award of the contract that Adminserv did not in fact meet the mandatory requirement, this is an issue of contract administration falling outside of the Tribunal’s jurisdiction. [32]

[48]  Thus, were it to turn out that, once the contract had been awarded, the vehicles proposed by Fresia did not meet the requirements of the RFP, despite the information provided in the call for offers process, it would then become an issue of contract administration, which falls outside the jurisdiction of the Tribunal.

[49]  Despite the fact that PWGSC indicated that Fresia’s statement, according to which it met standard SAE ARP5539, was sufficient to meet criterion 3.14.1a), it appears that this was but one element among several others that were taken into consideration in its decision. Indeed, following the CAR, the evaluation grid indicated that the requirement had been met, noting as relevant information Fresia’s technical description, as well as the table and annex in response to the CAR. [33] Furthermore, following the complaint filed by Larue with PWGSC on April 6, 2020 (after the awarding of the contract to Fresia), PWGSC conducted a final technical evaluation of Fresia’s proposal between April 16 and 20, 2020, wherein four evaluators pointed out more specifically the documents and reasons for which the proposal was in compliance with the requirements of the RFP. [34] Once again, these documents and reasons dealt with much more than only the matter of compliance with standard SAE ARP5539.

[50]  Lastly, Larue pointed out that one of the evaluators assigned to the final technical evaluation carried out by PWGSC following the receipt of Larue’s complaint indicated having referred to additional information, namely, the manufacturer's online engine specifications, confirming that the maximum engine power was in fact much higher (440 kW) than what had been indicated in Fresia’s proposal (407 kW). ^[35] According to Larue, “by going beyond the bid’s framework and the information produced by Fresia, the evaluator applied an unfair standard in the evaluation of the bid” [translation]. By contrast, PWGSC argued that the evaluators had assessed Fresia’s bid proposal and determined its compliance on the basis of the information provided by Fresia.

[51]  The Tribunal pointed out that the additional information cited by Larue was not part of the evaluation that had led to the awarding of the contract to Fresia. Moreover, according to the terms of paragraph 16f) of the document entitled 2003 (2018-05-22) Standard Instructions – Goods or Services – Competitive Requirements of the Standard Acquisition Clauses and Conditions Manual which were included by reference in section 2.1 of the RFP, Canada may “verify any information provided by bidders through independent research, use of any government resources or by contacting third parties”. Following Raymond Chabot Grant Thornton, to the extent that PWGSC only used the additional information to verify the information contained in Fresia’s proposal and that that information did not alter its conclusion, PWGSC was entitled to consult information found during the course of its own research. ^[36]

[52]  Larue argued, however, that the additional information was not used for a mere verification, but instead amounted to an amendment or enhancement of the information contained in Fresia’s proposal. According Larue, the evaluator used this additional information to justify or reassure himself about his previous conclusion that the engine strength could be sufficient to meet the requirements of the RFP.

[53]  In this case, as indicated above, the additional information cited by the evaluator was not available at the time of the awarding of the contract, and it was only cited by the evaluator among several other elements. Furthermore, nowhere in the joint evaluation of the four evaluators was this additional information mentioned. ^[37]

[54]  Clearly, this information had no impact on PWGSC’s determination. The decision of the Tribunal would have been different had the evidence shown that this additional information had influenced the outcome of the evaluation, which was not the case here. PWGSC had in fact already determined that Fresia’s proposal was compliant on the basis of the information contained therein, well before the manufacturer’s online engine specifications were raised.

Conclusion

[55]  In light of the foregoing, the Tribunal finds that the complaint is not valid.

COSTS

[56]  Pursuant to section 30.16 of the CITT Act, the Tribunal may award costs of, and incidental to, any proceedings before it in relation to a complaint on a final or interim basis.

[57]  PWGSC is seeking compensation for costs incurred in responding to the complaint. As a successful party in this inquiry, it is entitled to its reasonable costs as compensation.

[58]  In determining the amount of the cost award for this complaint, the Tribunal considered its Procurement Costs Guideline (Guideline), which contemplates classification of the level of complexity of cases on the basis of three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.

[59]  In this case, the procurement is of moderate complexity since the mandatory requirements relevant to the complaint were rather technical and required the submission of detailed information, including several calculations, to demonstrate vehicle compliance. The complaint is also of moderate complexity because it is based on the interaction of a few technical requirements and relates to the interpretation of the information that must be provided to meet those requirements. Finally, the Tribunal considers that the level of complexity of the proceedings is also moderate given the presence of an intervenor, the filing of additional comments by PWGSC and Larue following the filing of comments on the GIR, and the extension of the proceedings to the 135-day deadline.

[60]  As such, in accordance with Appendix A of the Guideline, the Tribunal’s preliminary indication of the level of complexity for this complaint is Level 2, and its preliminary indication of the amount of the cost award is $2,750.

DECISION

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

[62]  Pursuant to section 30.16 of the CITT Act, the Tribunal awards PWGSC its reasonable costs incurred in preparing the complaint, which costs are to be paid by Larue. In accordance with the Guideline, the Tribunal’s preliminary indication of the level of complexity for this complaint is Level 2, and its preliminary indication of the amount of the cost award is $2,750. If any party disagrees with the preliminary level of complexity or indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated in Article 4.2 of the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the cost award.