IN THE MATTER OF a complaint filed by Bronson Consulting Group 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
BRONSON CONSULTING GROUP INC.	Complainant
AND
DEFENCE CONSTRUCTION CANADA	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. The Tribunal’s preliminary indication regarding the cost award is that each party will bear its own costs. The Tribunal reserves jurisdiction to establish the final amount of the cost award.

Serge Fréchette

Serge Fréchette
Presiding Member

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

IN THE MATTER OF a complaint filed by Bronson Consulting Group 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
BRONSON CONSULTING GROUP INC.	Complainant
AND
DEFENCE CONSTRUCTION CANADA	Government Institution

CORRIGENDUM

The first sentence of paragraph 63 of the Statement of Reasons should read as follows: “In CGI, the Tribunal considered allegations that the government had applied undisclosed evaluation criteria in violation of Articles 1013(1), 1015(4)(c) and 1015(4)(d) of the North American Free Trade Agreement (NAFTA), which imposed similar obligations as the provisions of the CFTA and WTO-AGP under which Bronson submitted the present complaint.”

Paragraph 72 of the Statement of Reasons should read as follows: “In its reply to the GIR, Bronson argues that DCC acted unfairly in its technical evaluation of its proposal, specifically that DCC misapplied and/or inconsistently applied the terms “related” and “relevant” from the RFAP, and the term “directly related” not found in the RFAP, in evaluating Bronson’s bid, inconsistent with the terms of the RFAP.”

Serge Fréchette

Serge Fréchette
Presiding Member

Tribunal Panel:	Serge Fréchette, Presiding Member
Tribunal Counsel:	Peter Jarosz, Lead Counsel Michael Carfagnini, Counsel
Complainant:	Bronson Consulting Group Inc.
Counsel for the Complainant:	Alexander Bissonnette Christopher McLeod
Government Institution:	Defence Construction (1951) Limited, doing business as Defence Construction Canada
Counsel for the Government Institution:	Alexander Gay Brian Kahane Brendan F. Morrison Peter J. Osborne Margaret Robbins Zachary Rosen

Please address all communications to:

The Deputy Registrar
Telephone: 613-993-3595
E-mail: citt-tcce@tribunal.gc.ca

STATEMENT OF REASONS

SUMMARY OF THE COMPLAINT

[1] Bronson Consulting Group Inc. (Bronson) filed the present complaint with the Canadian International Trade Tribunal, pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, [1] concerning a Request for Abbreviated Proposals (RFAP) for historical records research and document management production services (Solicitation No. CA20HR2) issued by Defence Construction (1951) Limited, doing business as Defence Construction Canada (DCC) on behalf of the Department of National Defence (DND).

[2] Bronson argues that DCC inappropriately deducted points in its technical evaluation of the geographic information system (GIS) resources included in Bronson’s proposal, based on information found in the Statement of Work (SOW) appended to the RFAP.

[3] Bronson submits that the RFAP terms setting out technical requirements for GIS specialists did not provide for reference to the SOW, and that evaluating its proposed GIS resources against the SOW therefore reflected the application of undisclosed evaluation criteria, in violation of the trade agreements. Bronson also submits that DCC acted unfairly in their technical evaluation of its proposal by wrongly or inconsistently applying certain terms in the evaluation criteria.

[4] Bronson submits that, but for the application of these undisclosed criteria, it would have received a higher overall technical score than Canadian Development Consultants International Inc. (CDCI), the winning bidder of the standing offer (SO), and would therefore have been awarded the contract under the solicitation.

[5] As a remedy, Bronson requests that:

· the contract awarded to CDCI be cancelled, that Bronson’s proposal be re-evaluated, and that the contract be awarded to the highest-scoring proponent;

· Bronson be compensated for lost profits or lost opportunity; or

· Bronson be compensated for its bid preparation costs.

[6] DCC agrees that points were deducted in the evaluation of Bronson’s bid based on consideration of the SOW, but that doing so was consistent with the terms of the RFAP.

[7] In the course of these proceedings DCC has, for the first time, refused to disclose information relating to CDCI’S bid and DCC’s evaluation thereof, despite being requested to do so by the Tribunal, on the basis that it is protected from disclosure pursuant to section 30 of the Defence Production Act. [2] The precise content of this information is still unknown, and Bronson has requested that the Tribunal draw an adverse inference from DCC’s failure to disclose it. In the Tribunal’s view, the information in question is only relevant to the Tribunal’s analysis if it first determines that reference to the SOW in conducting the evaluations was unreasonable. As such, these reasons first consider the merits of that issue, followed by its determination on the issue of disclosure and adverse inference. As outlined below, the Tribunal does not consider the information in question necessary to resolve the complaint, and so finds that drawing an adverse inference is not appropriate in this case.

[8] That said, the Tribunal wishes to emphasize its view that DCC’s position would merit an adverse inference if the requested information were necessary to resolving the complaint, and more broadly, that the Tribunal will not allow section 30 of the DPA to become a vehicle for DCC to avoid its disclosure obligations in procurement complaints to which it is a party.

BACKGROUND

Procurement process

[9] On July 16, 2020, DCC issued the RFAP for historical records research and document management production services with a closing date of August 25, 2020. [3] The successful proponent under the solicitation was to be awarded a SO under which it would provide the above‑noted services on an “as and when required” basis for a two-year period, with the possibility to extend for up to three additional one year periods. [4] The purpose of these services is generally to inform the determination of potential liability relating to real property, unexploded explosive ordnance and the environment, to facilitate document production regarding litigation to which DND is a party, and otherwise to support current and historical DND projects. [5] The RFAP outlines a number of specific services to be provided, including the use of GIS systems. [6]

[10] On August 25, 2020, Bronson submitted a proposal in response to the RFAP. [7]

[11] On November 19, 2020, following evaluation of the proposals, DCC awarded the SO to CDCI. [8]

[12] The parties’ evidence appears to conflict regarding initiation of the debrief process: Bronson’s confidential complaint XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX [9] while DCC’s statement of facts indicates DCC notified unsuccessful proponents that their proposals had been rejected on December 9, 2020 [10] . In any case, on December 10, 2020, DCC sent Bronson a debriefing document containing the technical and cost evaluations of its proposal. [11]

[13] After reviewing the debriefing documents, Bronson contacted DCC and requested to know the technical score of the winning bid as well as the number of bidders. DCC responded that it would not provide the technical score of the winning bidder, [12] XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX [13]

[14] On December 14, 2020, Bronson and DCC conducted a further debriefing discussion via telephone, during which DCC confirmed that the technical evaluation included consideration of its bid against the SOW. [14]

Procedural history

[15] On December 24, 2020, Bronson submitted its public and confidential complaint to the Tribunal. [15] On December 29, 2020, the Tribunal notified the parties that the complaint had been accepted for inquiry. [16]

[16] On January 8, 2021, DCC notified the Tribunal that the contract had been awarded to CDCI. [17] On January 13, 2021, the Tribunal notified CDCI of the inquiry and its option to participate in the proceedings. [18] CDCI did not avail itself of this option.

[17] On January 18, 2021, DCC contacted the Tribunal requesting an extension of time for filing the Government Institution Report (GIR) until February 4, 2021. [19] The Tribunal granted DCC’s request the same day. [20]

[18] On February 4, 2021, DCC filed its public and confidential GIRs, as well as public and confidential affidavits of evaluators Alison Street and Maria Drake, with the Tribunal and Bronson. [21]

[19] On February 5, 2021, the Tribunal acknowledged receipt of the GIR and directed DCC to file, no later than February 10, 2021, additional documents it considered necessary to consider Bronson’s complaint, specifically the relevant portions of CDCI’s technical bid and the evaluation records for CDCI’s bid, including individual and consensus scoring by the evaluators. [22]

[20] On February 10, 2021, DCC submitted the additional documents requested by the Tribunal, as well as certain other documents relating to the scoring of Bronson’s bid, the evaluation methodology used by the evaluators and the instructions given to them. [23] With regard to the documents requested by the Tribunal, DCC stated that it was providing them “on a confidential basis for the Tribunal’s review alone” because the documents contained confidential information belonging to CDCI and because CDCI was not a party to the proceeding. [24]

[21] On February 11, 2021, the Tribunal wrote to counsel for both parties, noting that the Tribunal does not accept redacted versions of confidential documents and directing DCC to file and serve unredacted versions of the documents in question (while maintaining the confidentiality designations) no later than February 16, 2021, and extending the deadline for Bronson to file its comments on the GIR until Friday, February 26, 2021. [25] Also on February 11, 2021, Bronson requested that the Tribunal make the documents submitted by DCC “for the Tribunal’s review alone” available to Bronson’s independent counsel, noting that counsel had filed Form II – Notice of Representation and Form III – Declaration and Undertaking. [26]

[22] On February 16, 2021, DCC wrote to the Tribunal stating that it was not in a position to disclose the requested information pursuant to section 30 of the DPA, as DCC had sought CDCI’s consent to disclose the requested information under section 30 but CDCI had declined to provide such consent, and requesting that the Tribunal return or otherwise destroy the submitted documents and not disclose them further. [27]

[23] On February 17, 2021, the Tribunal requested Bronson to provide any comments on DCC’s letter of February 16, 2021, no later than noon EST on February 22, 2021, after which DCC would have until noon ET on February 24, 2021, to provide a response. [28]

[24] On February 22, 2021, Bronson submitted that section 30 of the DPA does not apply to the solicitation or, in the alternative, that the submission of CDCI’s proposal in response to the solicitation constituted implicit consent to disclosure under section 30, and requesting that the Tribunal make an Order directing DCC to disclose the documents. [29]

[25] On February 24, 2021, DCC submitted that, contrary to Bronson’s submissions, section 30 of the DPA applies to the solicitation and that the submission of CDCI’s proposal in response to the solicitation did not constituted implicit consent to disclosure under section 30. [30]

[26] On February 25, 2021, the Tribunal requested that DCC confirm whether the Minister of Public Works and Government Services (PWGSC) had made a decision, pursuant to subsection 30(b) of the DPA, regarding disclosure of the documents and, if the Minister had not done so, that DCC ask the Minister to provide said decision as early as practicable. [31] Also on February 25, 2021, the Tribunal wrote to CDCI requesting that it confirm whether it consented to disclosure of the requested information under section 30 of the DPA and explaining the protection afforded to confidential information submitted in the course of Tribunal proceedings. [32]

[27] On March 2, 2021, CDCI wrote to the Tribunal confirming that it did not consent to disclosure of the requested information. [33]

[28] On March 4, 2021, Bronson requested leave for an extension of time to file its comments on the GIR, stating that it had understood that it was not required to file its comments on the GIR until the document production issue was resolved. This letter further argued that the Tribunal should draw an adverse inference from the failure to disclose the requested information and the refusal of the Minister to consent to such disclosure. [34]

[29] On March 5, 2021, DCC wrote to the Tribunal confirming that the Minister had not provided consent to disclose the requested information pursuant to subsection 30(b) of the DPA. [35] Also on March 5, 2021, DCC wrote to the Tribunal advising that the Tribunal grant Bronson’s request for an extension of time to file its comments on the GIR, but requesting leave to provide further comments on the issue of adverse inference raised in Bronson’s letter of March 4, 2021. [36]

[30] On March 8, 2021, the Tribunal granted Bronson’s request for an extension of time to file its comments on the GIR, directing Bronson to file its comments based on the existing record no later than March 10, 2021. [37]

[31] On March 10, 2021, Bronson filed its public and confidential comments on the GIR. [38]

[32] On March 11, 2021, the Tribunal acknowledged Bronson’s comments on the GIR and directed DCC to file any submissions on the issue of adverse inference no later than March 17, 2021, after which Bronson would have until March 22, 2021 to provide a response to DCC’s submission on that issue. [39]

[33] On March 17, 2021, DCC filed its submissions on the issue of adverse inference. [40]

[34] On March 22, 2021, Bronson filed its reply submissions on the issue of adverse inference. [41]

[35] As there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that an oral hearing was not required and disposed of the complaint based on the written record.

SUBJECT MATTER OF THE COMPLAINT

Positions of the parties

Bronson

[36] Bronson argues that DCC inappropriately deducted points from the technical evaluation of the GIS resources included in its proposal. Specifically, it contests the evaluators’ decision that the GIS experience listed on the resumes of Bronson’s proposed senior GIS specialist and Intermediate GIS Specialist did not demonstrate GIS experience specific to historical records research and using DCC data standards as described in the SOW. Bronson submits that including considerations from the SOW in the evaluation of these resources was contrary to the terms of the RFAP, and constituted the use of undisclosed evaluation criteria in violation of the trade agreements.

[37] Bronson argues that DCC’s deduction of points from the technical evaluation of Bronson’s bid, based on evaluation against information contained in the SOW, constitutes a violation of Article XV(5) of the World Trade Organization’s Agreement on Government Procurement (WTO-AGP) and Article 515(5) of the Canadian Free Trade Agreement (CFTA), which obligate procuring entities to award a contract based solely on the evaluation criteria specified in the notices and tender documentation. Bronson also cites Article XV(1) of the WTO-AGP and Article 515(1) of the CFTA, which obligate procuring entities to receive, open and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process, and the confidentiality of tenders.

[38] Bronson submits that section 3.3 of the RFAP, which sets out evaluation criteria for “key personnel” including the intermediate and senior GIS specialists, required it to submit resumes demonstrating that the proposed GIS specialists had at least five and ten years of “related experience”, respectively, while section 3.3.2 required that resumes should include “relevant managerial and technical experience to this SO.” Bronson submits that “related experience” and “relevant managerial and technical experience” in these provisions referred to GIS experience generally, as no other or more specific type of experience is mentioned under section 3.3. In contrast, Bronson points to section 3.2 which explicitly refers to both the RFAP and the SOW in setting out criteria for evaluating the experience and qualifications of the proposed consultant team as a whole.^{^[42]}

[39] Bronson submits that its proposal was fully compliant with the evaluation criteria set out at section 3.3 of the RFAP and so should have received full points in the evaluation of both of its proposed GIS specialists.^{^[43]} Bronson further submits that DCC, via telephone, advised it that XX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX^{^[44]}

[40] Bronson cites the Tribunal’s decision in Smith Vigeant, [45] where the Tribunal found evaluators’ application of the word “related” in evaluation criteria, in a way that was not possible for the complainant to predict, to constitute an undisclosed evaluation criteria.^{^[46]} Bronson also cites Star Group,^{^[47]} where the Tribunal found DCC to have read in the specific terms “training, risk assessment, risk mitigation and sub-contractor safety” in evaluating proposals against a requirement to demonstrate “Health and Safety policy, procedures and practices” despite the former terms not being specifically disclosed as evaluation criteria. Bronson submits that it could not have known that DCC would apply the undefined terms “relevant experience” and “related experience” as meaning relevant/related to information found elsewhere than section 3.3 of the RFAP, and that the evaluation of its proposal against such information therefore constitutes the application of undisclosed evaluation criteria. [48]

[41] Finally, Bronson cites Space2Place, [49] where the Tribunal found the application of licensing requirements, which were listed under criteria for evaluating the proponent as a whole, to the evaluation of individual personnel constituted a breach of the trade agreements.^{^[50]}

[42] Bronson’s complaint also made reference to Article XV(4) of the WTO-AGP and Article 515(4) of the CFTA, which require that, to be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the notices and tender documentation, and be from a supplier that satisfies the conditions for participation. The Tribunal has consistently interpreted these provisions as pertaining to mandatory criteria set out in solicitation documents, compliance with which is typically assessed on a pass/fail basis and is a necessary condition to being considered for contract award. [51] According to sections 3.1.1 and 4.1.1 of the RFAP, the only mandatory requirement in the present procurement was that proposals receive a minimum overall technical score of 60/90. [52] As there is no indication that DCC considered Bronson’s proposal to be non-compliant with this criterion, or rejected it on that basis, the Tribunal does not consider Article XV(4) of the WTO-AGP and Article 515(4) of the CFTA to be relevant to this complaint.

DCC

[43] DCC agrees that points were deducted from the evaluation of Bronson’s bid based on consideration of the SOW, but that doing so was consistent with the terms of the RFAP.

[44] In the GIR, DCC argues that the language in the RFAP at section 1.3.3, stating “see Section 2 of the Statement of Work (SOW) for additional details” regarding the services to be provided by the successful proponent, constitutes the SOW having been incorporated by reference and justifies the use of the SOW as evaluation criteria.^{^[53]} DCC highlights that section 3.3 of the RFAP indicates that proponents should demonstrate that the personnel to be evaluated under that section have the necessary technical expertise and project management experience “to carry out the requirements of this SO,” while section 3.3.2.4 states that resumes evaluated under section 3.3 should include “relevant managerial and technical experience to this SO.” DCC submits that the text of the RFAP, as well as the context and purpose of the solicitation, made clear to prospective proponents that the experience and expertise of proposed personnel resources should be relevant to the services to be provided under the SO, including the GIS-related tasks described in the SOW.^{^[54]}

[45] DCC argues that Bronson’s submissions essentially mean that any GIS experience, as opposed to experience performing GIS-related tasks outlined in the SOW, would entitle a proponent to a maximum point score in the technical evaluation of its proposed GIS specialists. DCC submits that this interpretation is unreasonable, and would deprive the above sections of the RFAP describing experience “related” or “relevant” to “this SO” of meaning, which would be contrary to the Tribunal’s consistent position that solicitation documents are to be interpreted in a purposive manner which considers the intent of the procuring party as well as the overall purpose and objective of the procurement.^{^[55]}

[46] DCC argues that it is unreasonable to interpret the absence of an explicit reference to the SOW in section 3.3 as meaning that the SOW was not, and could not be understood to be, intended to be considered in evaluating proposed resources under that section. It submits that the only information in the solicitation documents which could give meaning to the words “requirements of this SO” found in section 3.3 is the content of the SOW. DCC points to other sections of the RFAP as making clear that the SOW informed the scope of services to be performed under the SO, including section 1.3.3, which refers proponents to the SOW for more details regarding the scope of services to be performed,^{^[56]} and section 3.2.2, which instructs proponents to demonstrate how the consultant team has experience “in as many areas as possible, as listed under section 1.3 of the RFAP and Sections 2 and 3 of the SOW.” [57]

[47] DCC submits that, without reference to the information in the SOW regarding specific GIS‑related tasks to be performed under the SO, the evaluators would have no frame of reference to conduct a technical evaluation of the proposed GIS specialists, and that it was therefore not only permissible but necessary for evaluators to consider the contents of the SOW in evaluating those specialists under section 3.3.

[48] Regarding the evaluation of Bronson’s bid, DCC submits that its evaluators appropriately decided not to award full points in the technical evaluation of Bronson’s proposed GIS specialists, as these demonstrated neither any experience in delivering geospatial data, in accordance with data standards outlined at section 2.2.5 of the SOW, nor any GIS experience related to historical records research generally, as outlined in sections 2 and 3 of the SOW.^{^[58]}

Bronson’s reply

[49] In its comments on the GIR, Bronson argues that DCC’s confirmation that evaluators referred to information in the SOW in conducting the technical evaluation of Bronson’s proposed GIS specialists unequivocally confirms its allegation that DCC applied criteria to this evaluation other than those set out in the RFAP. Bronson submits that sections 3.3.1.1.4 and 3.3.1.1.5 make no mention of the data standards outlined in the SOW, nor does the RFAP indicate that those standards are intended to be understood as applicable criteria by the undefined term “relevant managerial and technical experience to this SO” at section 3.3.2.4 of the RFAP. Bronson refers to section 2.3 of the “Instructions to Evaluators” provided in the GIR, which state that in evaluating or rating a response to a criterion, the evaluator must “carefully read the criterion that was posed in the procurement document.”^{^[59]} Bronson submits that this required the evaluators to consider the criteria in sections 3.3.1.1.4 and 3.3.1.1.5 of the RFAP, not the provisions of the SOW. [60]

[50] Bronson also points to the confidential evaluator worksheet regarding its bid submitted with the GIR which, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX^{^[61]}XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX^{^[62]} Bronson submits that, even if the SOW was incorporated by reference into the RFAP, the requirement of the trade agreements for evaluation criteria to be clearly specified, and the language at section 4.2.1 of the RFAP stating that evaluation criteria to be applied are outlined in section 3 of the RFAP, mean it is unreasonable for details provided in the SOW to be used as evaluation criteria.

[51] Bronson further submits that, as one of the data standards outlined in the SOW (the “DCC Geospatial Data Standard”) is specific to DCC, this could be reasonably interpreted as providing additional detail regarding technical standards the winning proponent would need to follow in performing the contract, as opposed to evaluation criteria. Bronson further submits that incorporating data standards specific to DCC as an evaluation criterion would itself possibly constitute a breach of the trade agreements by unfairly favouring the incumbent bidder. Bronson argues that, by not disclosing the use of those standards as evaluation criteria, DCC both deprived potential bidders of the opportunity to challenge such specifications and allowed DCC to unfairly prefer the incumbent in a “clandestine manner”.^{^[63]} However, Bronson’s final submission makes clear that it does not allege that the specifications in the SOW were intended to favour or provide an advantage to CDCI.^{^[64]}

[52] Finally, Bronson argues that in reducing the scores for its proposed GIS specialists on the basis that they did not demonstrate experience consistent with the contents of the SOW, DCC wrongly conflated and/or inconsistently applied the words “related” , “directly related” and “relevant”. Bronson submits that the requirement in sections 3.3.1.1.4 and 3.3.1.1.5 to demonstrate “related” experience has a different meaning than the wording in section 3.3.2.4 requiring resumes to demonstrate “relevant” managerial and technical experience to the SO. Bronson argues that DCC evaluator Ms. Allison Street inappropriately applied the term “related” as meaning related to the work under the SO as described in the SOW, as well as wrongly applying the higher standard of “directly related” as opposed to simply “related”.^{^[65]} Bronson cites the Tribunal’s decision in Deloitte,^{^[66]} that a distinction applied by evaluators between the undefined terms “cost benefit strategies” and “cost benefit analysis” constituted “a latent ambiguity if not an undisclosed criterion” for which the bidder should not be penalized.^{^[67]}

Analysis

Application of undisclosed criteria

[53] Although extensively argued, the parties’ positions are relatively straightforward. Bronson submits that it was unreasonable for DCC to interpret the terms “related experience” at sections 3.3.1.4.4 and 3.3.1.4.5 of the RFAP, and “relevant managerial and technical experience to this SO” at section 3.3.2.4, as pertaining to the requirements set out in the SOW regarding historical research and the GIS data standards outlined at section 2.2.5. DCC disagrees.

[54] Part 3 of the RFAP, titled “Evaluation Criteria”, sets out the substantive criteria for evaluation proposals under the solicitation, while Part 4 of the RFAP, titled “Evaluation and Selection Process”, sets out the procedural requirements governing the conduct of the evaluations. Section 4.2, titled “Evaluation of Technical Proposals”, provides in relevant part as follows:

4.2.1 The proposals will be assessed solely on the merits of the information provided in each Proponent’s proposal against the evaluation criteria outlined in Section 3 and weight factors indicated in Table 1 of this document.

4.2.2 Each criterion will be scored using a rating scale of zero (0), one (1), two (2) or three (3). The scores for each criterion will be divided by three (3) and multiplied by the weight factor assigned to the criterion as identified in Table 1 to produce a weighted score.

[55] Regarding the Intermediate and Senior GIS specialist, section 3.3 provides in relevant part as follows:

In this section, the Proponent should demonstrate that the Key Personnel have the necessary technical expertise and project management experience to carry out the requirements of this SO.

3.3.1 Resumes: (Approximately two (2) pages per resume)

.1 Provide resumes for each of the following Key Personnel (five (5) resumes in total):

. . .

.4 Senior Geographic Information System (GIS) Specialist with approximately 10 years or more of related experience.

.5 Intermediate Geographic Information System (GIS) Specialist with approximately 5 years or more of related experience.

.2 Resumes should include:

. . .

.4 Relevant managerial and technical experience to this SO.

[56] In assessing whether procedures in tender documentation have been followed, the Tribunal shows deference to evaluators and interferes only if an evaluation is unreasonable.^{^[68]} The reasonableness standard also applies to review of the procuring entity’s interpretation of the procurement documents.^{^[69]}

[57] Bronson cites several Tribunal decisions to support its interpretation that the RFAP did not provide for consideration of the SOW in conducting technical evaluations of the proposed GIS resources:

· Smith Vigeant, where the Tribunal found that the evaluators’ application of the word “related” in evaluation criteria, was done in a way that was not possible for the complainant to predict, and constituted an undisclosed evaluation criterion;

· Star Group where the Tribunal found DCC to have read in the specific terms “training, risk assessment, risk mitigation and sub‑contractor safety” in evaluating proposals against a requirement to demonstrate “Health and Safety policy, procedures and practices” despite the former terms not being specifically disclosed as evaluation criteria;

· Space2Place, where the Tribunal held that procuring entities are required to evaluate published mandatory criteria “individually as written”;^{^[70]} and

· Deloitte, in arguing that a bidder should not be penalized by evaluators based on an ambiguous distinction between undefined terms.^{^[71]}

[58] Notwithstanding that these decisions considered certain similar issues, the Tribunal does not consider them applicable to the facts of the present complaint.

[59] In Smith Vigeant, the Tribunal considered the undefined term “related” in its ordinary meaning, which the Tribunal found to be “joint, linked, tied, akin” and “that is closely related with something else.” [72] The Tribunal also found that the term “related experience” in the English version of the solicitation documents could not reasonably be interpreted as meaning that the experience had to be acquired through consecutive projects, which was the reason given by the Parks Canada Agency for rejecting the complainant’s proposal.^{^[73]} In that case, the word “consecutive” which evaluators read into the evaluation criteria was not argued to have appeared anywhere in the solicitation documents. In contrast, the information which Bronson argues that DCC wrongly considered in evaluating its proposed GIS resources was found in the solicitation documents, that is in the SOW.

[60] In Star Group, the Tribunal noted that the specific terms “training, risk assessment, risk mitigation and sub-contractor safety”, which did not appear in the RFAP, were applied in evaluating proposals against a requirement to demonstrate “Health and Safety policy, procedures and practices”.^{^[74]} The Tribunal did find DCC’s evaluation against this requirement to be unreasonable, but on the basis that evaluators failed to consider how information contained elsewhere in the complainant’s bid satisfied at least some of these terms, such as risk mitigation. However it based its finding that DCC’s assessment under the criterion in question was unreasonable not on the application of undisclosed criteria, but on the finding that evaluators had ignored vital information provided elsewhere in the complainant’s bid.^{^[75]} Bronson has not alleged that DCC overlooked information elsewhere in its proposal which would have demonstrated compliance with the GIS‑related criteria relating to the SOW, but rather that those criteria were inappropriate to consider at all.

[61] In Space2Place, the Tribunal found that the application of licensing requirements, listed under criteria for evaluating the proponent as a whole, to the evaluation of individual personnel constituted a breach of the trade agreements. As “proponent” was a defined term under the solicitation documents, the Tribunal held that considering the licensing status of individual proposed personnel to evaluate compliance with a licencing requirement of the proponent as a whole deprived that defined term of its intended meaning. Applying this revised definition therefore constituted a breach of the trade agreements as it was inconsistent with the terms of the solicitation documents.^{^[76]} In the present complaint, Bronson is not arguing that DCC misapplied or otherwise altered the definition of the terms “Key Personnel” or “Proponent”, which are both defined under the RFAP,^{^[77]} but that it misapplied and/or conflated the undefined terms “related” and “relevant”.

[62] In Deloitte, the Tribunal found that an evaluator had justified a consensus evaluation for one criterion based on a lack of “cost benefit analysis” in the complainant’s proposal, where that term was not mentioned in the criterion in question nor defined elsewhere in the solicitation documents.^{^[78]} However, similarly to the decision in Star Group, the Tribunal in Deloitte found the evaluation unreasonable because it ignored information contained elsewhere in the complainant’s proposal which demonstrated compliance with the requirement. Despite noting that the complainant should have specifically used the term “cost benefit strategies”, which did appear in that requirement,^{^[79]} the Tribunal found unreasonable the evaluators’ ignoring how the proposed personnel resource’s experience satisfied the substance of the requirement, concluding that “while Deloitte could and should have used the precise language of RT8 in its response, it suffices that, in substance, the description of the relevant experience accords with the requirement.”^{^[80]} Again, Bronson has not alleged that DCC overlooked information elsewhere in its proposal which would have demonstrated compliance with the GIS-related criteria, so (as with Star Group) it is unclear how the reasoning in Deloitte applies to the present complaint.

[63] In CGI,^{^[81]} the Tribunal considered allegations that the government had applied undisclosed evaluation criteria in violation of Articles 1013(1), 1015(4)I and 1015(4)(d) of the North American Free Trade Agreement (NAFTA), which imposed similar obligations as the provisions of the CFTA and WTO-AGP under which Bronson submitted the present complaint. The Tribunal in CGI determined that:

. . . a procuring entity will comply with its NAFTA obligations as long as it uses an evaluation approach that is logically consistent with, and could reasonably be anticipated or derived from, the methodology and criteria stated in the tender documents (including any further clarifications). Similarly, if a procuring entity decides to use evaluation guides that rely on criteria more detailed than the ones published in the tender documents, the evaluation will remain reasonable if such detailed directions are consistent with, and could be anticipated or derived from, the published criteria.^{^[82]}

[64] Following its reasoning in CGI, the Tribunal finds that reference to both historical research and GIS-related activities listed in the SOW was logically consistent with, and could reasonably be anticipated or derived from, the language of sections 3.3 and 4.2 of the RFAP. The chapeau of section 3.3 makes clear that bidders were to demonstrate that proposed personnel resources had the technical expertise “to carry out the requirements of this SO,” while section 3.3.2.4 states that resumes should include “relevant managerial and technical experience to this SO.”

[65] As Bronson observes, reference to the SOW does not appear in section 3.3, while section 4.2.1 states that “proposals will be assessed solely . . . against the evaluation criteria outlined in section 3 . . . .” However, given the clear language at section 3.3 that evaluations thereunder would consider proposed personnel resources in light of the work to be done under the SO, the Tribunal nevertheless considers it reasonable for DCC to have referred to the SOW in evaluating the experience of proposed personnel resources.

[66] Bronson further argues that evaluating proposed GIS specialists against the data standards in the SOW, which are specific to DCC, allowed DCC to unfairly prefer the incumbent CDCI by effectively excluding other bidders,^{^[83]} though Bronson does not allege that the specifications in the SOW were intended to favour or provide an advantage to CDCI.^{^[84]}

[67] DCC submits that the DCC Geospatial Data Standard describes how data is to be collected, mapped and formatted, and that it would be possible for proponents to demonstrate performing GIS‑related tasks to these specifications in other contexts. [85] Bronson did not respond to this argument in its further submissions, and the Tribunal is not in a position to determine whether a non-incumbent proponent could feasibly receive full points for these criteria. In any case, even a finding that these criteria favoured the incumbent supplier would not be determinative, as the Tribunal has consistently found that the non-discrimination provisions of the trade agreements will not automatically be breached where a supplier, including an incumbent, has a certain business advantage that gives it a competitive edge with respect to a procurement. [86]

[68] The Tribunal considered similar arguments brought under the Agreement on Internal Trade (AIT) in Almon,^{^[87]} where it determined as follows:

72. Again, the Tribunal is of the view that Canada has the right to define its procurement requirements, taking into account its legitimate operational requirements. Almon has not presented evidence demonstrating that the requirements of the procurement at issue are discriminatory, impossible to meet or unreasonable. There is also no evidence on the record that could suggest that PWGSC included the requirements at issue in order to deliberately exclude Almon or to favour the incumbent supplier. In the absence of positive evidence in this regard, the fact that Almon cannot presently meet these requirements only means that they are outside the scope of Almon’s capabilities, not that the requirements are inconsistent with the AIT.

73. In summary, the Tribunal is of the view that Almon has not presented any evidence to indicate that PWGSC deliberately constructed the procurement to exclude Almon from the competition. Accordingly, the Tribunal finds that, for this ground of complaint, the evidence does not disclose that the procurement was conducted in violation of the AIT.

[69] The Tribunal has seen no evidence that the reference to the DCC Data Standard in the SOW was included in order to favour an incumbent bidder, or that it falls outside the legitimate operational requirements of the procurement. Bronson does submit that reference to the DCC data standard was unreasonable in favouring an incumbent supplier, and so specific to DCC as to effectively exclude all but the incumbent bidder, but does not argue that doing so was for the purpose of so excluding incumbent bidders, on which point the Tribunal’s decision in Almon turned.

[70] In this case, based on the language of section 3.3 of the RFAP, as well as the broader context and purpose of the solicitation, the Tribunal finds that DCC’s interpretation of section 3.3 as allowing for reference to the SOW in evaluating proposed GIS resources under sections 3.3.1.1.4 and 3.3.1.1.5 was reasonable under the circumstances, and therefore does not constitute the application of undisclosed evaluation criteria such as would breach Articles XV(1) or XV(5) of the WTO-AGP, or Articles 509(7), 515(1) or 515(5) of the CFTA.

[71] For the foregoing reasons, the Tribunal finds that this ground of complaint is not valid.

Fairness and impartiality of the evaluation

[72] In its reply to the GIR, Bronson argues that DCC acted unfairly in its technical evaluation of DCC’s proposal, specifically that DCC misapplied and/or inconsistently applied the terms “related” and “relevant” from the RFAP, and the term “directly related” not found in the RFAP, in evaluating Bronson’s bid, inconsistent with the terms of the RFAP.

[73] These terms are not defined in the solicitation documents, and Bronson cites Smith Vigeant where the Tribunal considered the ordinary meaning of “related” as meaning “joint, linked, tied, akin and that is closely associated with something else.” [88] Considering those definitions, and in light of the analysis in the previous section regarding the reasonableness of considering the SOW in evaluating Bronson’s proposed GIS resources, the Tribunal does not see how DCC interpreting “related” experience to mean experience that is “joint, linked, tied, akin” or “very closely associated” to the work to be done under the SOW would be inconsistent or unreasonable.

[74] Bronson also submits that that individual evaluation sheet submitted with the GIR demonstrates that DCC evaluated its proposed intermediate GIS specialist, Mr. XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX [89] It is true that the public and confidential affidavit of Ms. Street, submitted with the GIR, does not appear to explain XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Further, XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX this still would not have changed the final outcome.

[75] Bronson also alleges that XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX [90] Given that the Tribunal has already found that reference to the SOW in evaluating these resources was reasonable, XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX the Tribunal fails to see how DCC’s conclusion in this regard was unreasonable. XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX [91] XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

[76] Based on the foregoing, in the absence of a finding that the application of information from the SOW was itself unreasonable, the Tribunal finds no basis to conclude that DCC applied that information or the terms of section 3.3 of the RFAP in an unfair or inconsistent manner. As such, this ground of complaint is also not valid.

DISCLOSURE AND ADVERSE INFERENCE

[77] As outlined above, on February 5, 2021, the Tribunal directed DCC to file documents it considered necessary to consider Bronson’s complaint, specifically the relevant portions of CDCI’s technical bid and the evaluation records of CDCI’s bid including individual and consensus scoring by the evaluators, no later than February 10, 2021. [92] In its subsequent submissions, DCC took the position that it could not disclose the requested information pursuant to section 30 of the DPA, which position it maintains.

[78] Section 30 of the DPA provides as follows:

30. No information with respect to an individual business that has been obtained under or by virtue of this Act shall be disclosed without the consent of the person carrying on that business, except

(a) to a government department, or any person authorized by a government department, requiring the information for the purpose of the discharge of the functions of that department; or

(b) for the purposes of any prosecution for an offence under this Act or, with the consent of the Minister, for the purposes of any civil suit or other proceeding at law.

[79] Bronson submits that section 30 of the DPA does not apply to the present procurement or, in the alternative, that CDCI provided effective consent to disclosure under section 30 by participating in the procurement process. Bronson further argues that the Tribunal should draw an adverse inference from DCC’s failure to disclose the requested information and the refusal of the Minister to consent to such disclosure. [93] DCC contests each of these positions.

Applicability of section 30 of the DPA

Positions of the parties

[80] Bronson submits that section 30 of the DPA does not apply to the present procurement because it is not a procurement for “defence supplies” as that term is defined in the DPA, and because section 30 falls under Part 1 of the DPA, under the heading “Procurement of Defence Supplies”. Bronson cites Foundry Networks, [94] where the Tribunal noted that solicitation documents explicitly designated the procurement as a “defence contract” as defined in the DPA, and submits that the absence of such a designation indicates that the present procurement is not subject to the DPA. [95] Bronson further cites several past Tribunal cases where DCC was the respondent and produced a GIR without claiming any exemption under the DPA. [96]

[81] Bronson submits that DCC’s position would effectively remove DCC from the Tribunal’s oversight, as it would be exempt from any obligation to produce relevant documents in a GIR as required under the Canadian International Trade Tribunal Rules. [97] It submits that successful proponents can be expected not to consent to disclosure of their information as part of an inquiry into procurements conducted by DCC.

[82] DCC maintains that information in its possession is subject to section 30 of the DPA because it is a Crown corporation created pursuant to subsection 6(1) of the DPA, and it is therefore precluded from disclosing information with respect to CDCI obtained in the course of carrying out its purpose of conducting procurement on behalf of DND. This purpose includes the procurement of professional and commercial services under subsection 16(d), which DCC submits are the services sought by DND under the procurement at issue in this proceeding. [98] DCC refers to the Access to Information Act [99] as providing evidence that section 30 of the DPA applies broadly to DCC, specifically subsection 24(1) and Schedule II, which provide that the head of a government institution shall refuse to disclose any record the disclosure of which is restricted under section 30 of the DPA.

[83] Both parties cite Top Aces, [100] where the Federal Court concluded that information possessed by DND, regarding the unit prices under a SO for military training services, were subject to section 30 of the DPA. [101] Bronson submits that the Court in Top Aces determined that a disclosure clause in the SO “constituted sufficient consent” under section 30. [102] In response, DCC submits that the Court in Top Aces found that the disclosure clause constituted consent only to the extent of the language in the clause, which explicitly referred to unit prices (the information at issue). [103] DCC further cites Irving Shipbuilding, [104] where the Federal Court ordered the winning bid in a procurement excluded from the record based on section 30.

[84] Bronson points to section 10.2 of DCC’s Procurement Code of Conduct, which was included in the solicitation documents, and outlines the Tribunal’s jurisdiction to review all aspects of a procurement action up to and including contract award. [105] Bronson submits that CDCI’s submission of a proposal in response to the solicitation by DCC, having been made aware of the Tribunal’s jurisdiction to review procurement complaints, constitutes implicit consent to disclosure of its proposal and the evaluation thereof for the purpose of such a review. DCC contests this, and submits that the solicitation documents included an “acknowledgment Document” (which neither party included in their submissions) under which proponents consented, pursuant to section 30 of the DPA, to disclosure of their legal name and address and the overall ranking of their proposal. DCC argues that, applying the Federal Court’s reasoning in Top Aces, to the extent the submission of a bid constitutes consent to disclosure under section 30, it does so only with regard to bidders’ legal names, addresses and overall rankings. [106]

Analysis

[85] Bronson is correct that in none of the procurement complaints before the Tribunal cited above, wherein DCC was a party to the proceedings and produced a GIR, has section 30 of the DPA been raised as an impediment to disclosing information with regard to the procurement process at issue. However, that fact alone is not determinative as to whether section 30 applies to the information here at issue.

[86] DCC conducts procurement on behalf of DND pursuant to the powers of the Minister to do so under Part 1 of the DPA. It is therefore unclear how DCC might obtain information with regard to individual businesses in the course of such procurement other than by virtue of the DPA, such as would avoid the application of section 30 to that information. However, DCC’s stated position, that it is unable to disclose the information because CDCI has not consented to its release, appears to ignore the fact that the Minister has the power, under subsection 30(b), to consent to disclosure for the purpose of proceedings at law.

[87] DCC cited Top Aces and the exemption for statutorily prohibited information under subsection 24(1) of the ATIA, in arguing that section 30 of the DPA imposes a broad prohibition on disclosing information subject to it. The Federal Court of Appeal, in reviewing the Federal Court’s decision, dismissed the appeal on the following basis:

The Federal Court judge proceeded on proper principle when he considered the restriction set out in section 30 of the DPA and ordered the disclosure of the unit prices on the basis that this information was not “restricted” within the meaning of subsection 24(1) of the ATIA by reason of the consent given by the appellant. [107]

[88] Based on the FCA’s review of Top Aces, the Tribunal is not persuaded by DCC’s argument that information is “restricted” under section 30 if consent to its disclosure is provided as contemplated under that provision, for example as is provided in the Acknowledgment Document submitted with bids (albeit in very limited scope). However the Tribunal also notes that the consent at issue in Top Aces was that of the business to which the information pertained, and further that the FCA made no comment regarding the Federal Court’s statement that “the exceptions pursuant to paragraphs 30 a) and b) have no relevance here.” [108]

[89] Pursuant to subsection 17(2) of the CITT Act, the Tribunal has the powers of a superior court of record regarding the production and disclosure of documents. However, none of the jurisprudence cited by the parties confirms that courts with such authority may order the disclosure of information otherwise protected under section 30. While it is not entirely clear that the Tribunal cannot order the information to be disclosed, it would do so without the support of clear statutory or jurisprudential authority. For this reason, the Tribunal did not grant the request to order DCC to disclose the information.

[90] The Tribunal wishes to emphasize that, notwithstanding its decision not to order disclosure of the information, it does not consider DCC to have provided any persuasive justification for the Minister’s lack of consent to disclosure. The following section considers whether it is appropriate in this case to draw an adverse inference from this lack of disclosure, as argued by Bronson.

Adverse inference

[91] Bronson has requested that the Tribunal draw an adverse inference from DCC’s failure to provide the requested information.

[92] Although it is not clear that the Tribunal can compel DCC to disclose the information, in the Tribunal’s view Bronson makes a valid point that DDC’s position (which it has never taken prior to this inquiry) could have a systemic impact on the Tribunal’s ability to review procurements conducted by DCC. [109] Procuring entities are statutorily obligated to provide relevant information in the GIR under rule 103 of the Rules, whereas successful bidders are under no obligation to participate in complaint proceedings. As such, the Tribunal will limit its analysis in this regard to whether the circumstances merit drawing an adverse inference from the Minister’s lack of consent to disclosure under subsection 30(b) of the DPA.

Positions of the parties

[93] Bronson submits that, but for DCC’s application of information from the SOW and/or misapplication of the evaluation criteria in the RFAP in evaluating its proposal, it would have received a higher overall technical score than CDCI and been the successful proponent. [110]

[94] Bronson submits that DCC’s failure to produce evidence relating to the evaluation of CDCI’s bid has prevented the Tribunal “from engaging in a rescoring of both bids to determine the winning proponent.” [111] Bronson relies on Systèmes Equinox, [112] where the Tribunal determined that a failure by PWGSC to produce relevant evidence arose from a failure to retain records of the evaluation of the complainant’s bid, and that this justified drawing an adverse inference. Bronson cites the following, where the Tribunal stated:

69. The absence of documents or portions of documents that clearly once existed is an impediment to the Tribunal’s full examination of the circumstances surrounding the selection of the successful bidder and the rejection of unsuccessful bidders. Under the circumstances, the Tribunal cannot conclude that the records are unavailable because of wilful concealment. However, at the very least, it is because of carelessness in following the obligations of the applicable trade agreements. Where it is clear that records or portions of records are missing, the Tribunal concludes that this is contrary to trade obligations. It can only draw, at best, neutral inferences and, at worst, negative inferences.

70. In the present circumstances, and given the specific reasons cited by PWGSC for rejecting the Equinox financial bid, the Tribunal considers it appropriate to draw adverse inferences from this lack of reasonable explanation relating to the specific amounts calculated for each of the 18 separate items for which the quotation of a firm price was required by the RFP and, in particular, the additional amount added to Equinox’s bid in the evaluation score sheet. It concludes that the manner in which PWGSC evaluated Equinox’s financial bid, combined with PWGSC’s inability or reluctance to explain the additional amount appearing on the evaluation sheet, supports the finding of a reasonable apprehension of bias.

[95] Bronson submits that the lack of consent by the Minister under subsection 30(b), in circumstances similar to those where it has not invoked section 30 previously, reflects that DCC has sought to invoke the DPA on a discretionary basis in this matter as a shield to prevent Bronson’s counsel and the Tribunal from fully inquiring into this specific procurement. Bronson submits that this constitutes “wilful concealment” of the requested information and therefore merits the drawing of an adverse inference. [113]

[96] DCC submits that the facts underlying the Tribunal’s decision in Systèmes Equinox are distinguishable from those in this complaint because the information has not been lost or destroyed, but rather DCC has retained it and is simply prevented from disclosing it due to CDCI’s lack of consent thereto. [114] In response, Bronson submits that while DCC has not breached its obligation to retain records, it has acted contrary to its obligations under the Rules to produce with its GIR all relevant documents and evidence necessary to resolve the complaint. [115] DCC submits that it is merely complying with its statutory obligations, given that CDCI has not consented to disclosure of the information, and that there is no justification for an adverse inference against a legal custodian of third-party information who complies with the express written direction of the owner of that information. [116]

[97] Bronson points out that the Minister also has the ability to consent to disclosure of the information pursuant to subsection 30(b) of the DPA, and that no explanation has been provided for the Minister’s lack of consent in this case when DCC has produced third-party information in previous cases before the Tribunal. [117] DCC agrees with Bronson that the DPA was not invoked in previous cases to which DCC was a party, but argues that the lack of findings or holdings by the Tribunal regarding the DPA in those cases makes them of no use in assessing the application of the DPA in this case. [118]

[98] DCC refers to the recent decision by the Federal Court of Appeal, Caron Transport, [119] where the Court outlined the parameters for drawing an adverse inference in civil cases. DCC misquotes Dawson J.A. in its submission by omitting certain text, [120] but the passage in question states as follows:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn in circumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure to call a material witness amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. [121]

[99] DCC submits that the element of exclusive control over the evidence is essential as, where the party is not free to produce the information, or where the other parties are able to otherwise obtain it, an adverse inference is not appropriate. In its reply, Bronson submits that the information pertaining to CDCI’s bid and its evaluation cannot otherwise be obtained, as none of the evidence on the record speaks to the evaluation of CDCI’s proposal. [122]

[100] Finally, DCC argues that the requested information is not relevant to determining the validity of Bronson’s complaint, which turns on the reasonability of considering the SOW in conducting technical evaluations under the RFAP. DCC submits that this can be determined with reference to the solicitation documents alone. [123] Bronson submits that without disclosure of the documents pertaining to the technical evaluation of CDCI’s bid, it cannot be established whether the use of the term “directly related” (as appears in the technical scoring of Bronson’s bid) was consistently used in its evaluation of CDCI’s proposal as well. [124]

Analysis

[101] Bronson submits that where the Tribunal will determine the within matter on the basis of the documentation in question, an adverse inference for a failure to produce the documents is appropriate. [125] However it is unclear how the Tribunal could determine the matter on the basis of information in CDCI’s bid.

[102] In considering whether it is appropriate to draw an adverse inference from DCC’s failure to disclose the information relating to CDCI’s bid and the technical evaluation thereof, the key question would appear to be “to what degree is that information relevant and necessary to determining the validity of Bronson’s complaint?” Bronson’s arguments in this regard are that, without the information, the Tribunal cannot engage in a “rescoring of both bids to determine the winning proponent” or assess whether the term “directly related” was used in evaluating CDCI’s technical bid consistently with how it was used in evaluating Bronson’s technical bid.

[103] As outlined above, the Tribunal reviews the evaluation of bids in procurement processes on the standard of reasonableness. In Saskatchewan Polytechnic Institute, the Federal Court of appeal described the role of the Tribunal in procurement inquiries as follows:

Its role in this type of inquiry is to decide if the evaluation is supported by a reasonable explanation, not to step into the shoes of the evaluators and reassess the unsuccessful proposal. The Tribunal approached the complaint in the correct manner and determined whether the evaluators’ conclusions were defensible in light of the published criteria. [126]

[104] In this case, the Tribunal fails to see how information relating to CDCI’s bid could demonstrate that DCC’s conclusions were not defensible in light of the published criteria.

[105] Section 4.5 of the RFAP, titled “Results of Evaluation and Establishment of the SO”, provides in relevant part as follows:

4.5 Results of Evaluation and Establishment of the SO

4.5.1 The technical and cost proposal scores are added to determine the total score of each Proponent.

4.5.2 The Proponent with the highest total score will be selected for the Standing Offer. In the event that the selection fails, DCC may select the next-ranked Proponent.

4.5.3 In the event that the first and second total scores are tied or separated by one point or less, the Proponent who received the highest score for the technical proposal will be selected for the SO.

[106] During the debriefing process, DCC advised Bronson that XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX^{^[127]} The confidential debriefing document for the technical evaluation indicates that XXXXXXXXXX XXXXXXXXXXXXXXXXX

· XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

· XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX^{^[128]}

[107] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX As such, CDCI would have had to receive XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

[108] Bronson submitted affidavit evidence from Mr. Martin McGarry, President of Bronson, that during his debriefing call with DCC of December 14, 2020, DCC informed him that XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX^{^[129]} As mentioned above, the confidential record indicates that XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX^{^[130]} Mr. McGarry attested that DCC informed him that XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX^{^[131]}

[109] Section 4.3.1 provides as follows:

Once the evaluation of the technical proposals has been completed, DCC will access through the Electronic Bidding System, the cost proposals of the Proponents whose proposals have met the mandatory requirement outlined in 3.1.1 and have obtained a total technical score within ten (10) points of the highest ranked technical proposal.

[110] Section 4.4, titled “Scoring of Price Criteria”, provides in relevant part as follows:

4.4.1. The scores for the Total Classification Rate will be allocated as follows:

Criteria	Score
Proponent’s Price is ≥ (Lowest Price) and ≤ (Lowest Price + 5%)	10
Proponent’s Price is ˃ (Lowest Price + 5%) and ≤ (Lowest Price + 10%)	9
. . .
Proponent’s Price is ˃ (Lowest Price + 50%)	0

4.4.2. The score for each price criterion will then be multiplied by its respective percentage weight factor as indicated in Table 1 to produce a weighted score.

[111] Table 1 confirms that the cost proposal score has a weight of 10 points and a 10 percent weight overall, meaning the cost score out of 10 points is directly added to the technical score out of 90 points to produce the total score out of 100 points.^{^[132]} From this, and DCC’s statements regarding XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX [133]

[112] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXX

[113] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

[114] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

[115] Without being able to see the evaluation record for the winning proposal, it is impossible to know how DCC applied the technical evaluation criteria to CDCI’s bid. All that can be inferred from the available evidence is that, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

[116] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX

[117] It is conceivable that CDCI lost points under another criterion which it made up for in receiving points under the GIS-related criteria. If that were the case, it is possible that not applying information from the SOW would have resulted in a higher overall technical score for Bronson, and a lower one for CDCI, which likely would have resulted in Bronson being declared the winner. However, this analysis would only apply if the Tribunal determined that considering the SOW was unreasonable. As outlined above, the Tribunal has found that reference to the SOW in the technical evaluations was reasonable.

[118] Bronson’s remaining ground of complaint is therefore that DCC did not evaluate bidders’ proposals consistently against the terms “related”, “relevant” and “directly related”. As already discussed, the Tribunal does not consider these terms to have been applied in an unreasonably inconsistent way such as would change Bronson’s technical score. Given that finding, it is unclear on what basis these terms might have been applied inconsistently in evaluating CDCI’s bid such as would unfairly enhance its technical score in respect of the two GIS resources in question, or its overall technical score. Ultimately, the Tribunal does not consider the evidence and arguments in this complaint as raising questions which require seeing evidence regarding the evaluation of CDCI’s bid in order to answer, the absence of which evidence could invite an inference adverse to DCC’s position or overall theory of the case.

[119] In the Tribunal’s letter of February 5, 2021, it stated that it considered it necessary to review the information in considering the complaint. At that time, the Tribunal had not yet conducted its full analysis to reach the above findings as to the merits of the complaint. Having now done so, and on the basis of the arguments of the parties on both the merits and the issues relating to section 30 of the DPA, the Tribunal no longer considers the information necessary to resolve the complaint.

[120] In its recent decision in Heiltsuk, the Federal Court of Appeal considered a refusal by the Tribunal to order the production of documents on request of one of the parties. In this regard, the Court affirmed that “the question of what documents a government institution must produce in the context of a procurement inquiry is, in my view, a procedural matter that falls within the Tribunal’s discretion” [134] and that the application of that discretion is judged on the standard of correctness. [135] In reviewing the Tribunal’s decision on this standard, the Court made the following observations:

111 While allegations of a breach of procedural fairness or of a reasonable apprehension of bias may warrant additional disclosure, they do “not allow a person to engage in a fishing expedition in the hopes of discovering some documents to establish the claim” (Humane Society of Canada Foundation v. Canada (National Revenue), 2018 FCA 66, 2018 D.T.C. 5043 at para. 8). A fishing expedition has been defined by this Court as “a search by an empty-handed party looking for something to grasp onto” (Imperial Manufacturing Group Inc. v. Decor Grates Incorporated, 2015 FCA 100, 472 N.R. 109 at para. 38).

112 I am satisfied that insofar as it relates to items 4, 5, 7 and 8, Heiltsuk Horizon’s request for production of documents was an attempt “to engage in a fishing expedition in the hopes of discovering some documents to establish the claim.” When this request was made, the part of the First Complaint relating to the MR 18 amendment was no longer at the forefront of said complaint; the Attorney General and Atlantic had at that point already convinced the Tribunal that the amendment disclosed no grounds for an allegation of bias. Heiltsuk Horizon’s request for disclosure regarding MR 18 amounted to little more than an attempt to uncover evidence that could serve to establish an otherwise unsubstantiated allegation. The Tribunal correctly rejected it.

113 With respect to the request for production of documents prompted by the social media post, I am also satisfied that it was well within the Tribunal’s discretion in determining its own procedure to dismiss that request. Moreover, that decision was appropriate in light of the context, nature, and content of the communication. As noted by the Tribunal, the social media post refers to the timeframe of approximately two years between the release of RFI A in November 2016 and the contract award in August 2018 (Decision I at para. 76). As was the case for the allegation relating to the MR 18 amendment, item 8 of Heiltsuk Horizon’s request for production of documents was yet another attempt to uncover evidence that could serve to establish an otherwise unsubstantiated allegation. I find that the Tribunal correctly rejected it as well.

[121] In these proceedings, Bronson raised its allegations of inconsistency and unfairness in the evaluation regarding the terms “relevant”, “related” and “directly related”, and the corresponding argument that the information in CDCI’s bid is necessary to resolve this ground of complaint and that refusing its disclosure therefore invites a negative inference, only after DCC had refused to produce the information. [136] Whether this was merely a tactical decision is impossible to say; the Tribunal considers these arguments to have been made as reasonably and diligently as the evidence allowed. Nonetheless, and as outlined above, the Tribunal does not find that evidence to suggest the unfair or unreasonable application of these terms to the evaluation of Bronson’s bid.

[122] It is possible that the information which DCC has failed to disclose could demonstrate unfairness or inconsistency in the evaluation of CDCI’s bid reflecting a breach of the trade agreements. However, absent some independent factual foundation to suggest such a breach, requiring disclosure of the information for the purpose of discovering the only evidence which might support it would represent exactly the sort of fishing expedition discussed by the Court in Heiltsuk. As the Tribunal does not consider the information necessary to resolve the complaint, it therefore finds that the failure by DCC to disclose the requested information does not merit drawing an adverse inference under the circumstances.

[123] This finding is not to discount the potential that DCC’s position, if adopted again in future complaints, could seriously impede the Tribunal’s mandate to review procurement complaints under Canada’s trade agreements, with potential systemic implications for the principles of fairness, competition, integrity and efficiency underpinning Canada’s federal procurement regulatory regime. The Tribunal will therefore next consider whether DCC’s failure to disclose the information might itself represent a breach of the trade agreements.

Refusal to disclose does not breach the trade agreements in this case

[124] DCC’s failure to disclose the requested information could violate the GIR submission requirements at rule 103(1) of the Rules, potentially constituting a breach by the government of Article 518 of the CFTA, which requires parties to put in place procedures to review alleged breaches of the chapter governing procurement, and similar provisions in the other trade agreements.

[125] Rule 103(1) requires the government institution to submit all documents “relevant to the complaint” and “any additional evidence or information that may be necessary to resolve the complaint.”^{^[137]} The references to relevance and necessity here indicate a similar analysis to that regarding adverse inference, above, in that the Minister’s obligation to disclose information extends insofar as that information is necessary to answer the questions raised in the complaint.

[126] As outlined above, the Tribunal does not consider the information as necessary to resolve the complaint. As such, the Tribunal finds that the information does not fall within the scope of DCC’s disclosure obligations under rule 103 of the Rules. The Tribunal therefore finds that DCC’s failure to disclose the requested information does not, in this case, constitute a breach of Article 518 of the CFTA.

Different circumstances could merit adverse inference and potential finding of a breach

[127] The Tribunal wishes to emphasize its concern regarding DCC’s position on disclosure of information which it asserts is subject to section 30 of the DPA, which as outlined above DCC has never taken before despite participating in numerous proceedings before this Tribunal where it has produced a GIR. It appears clear that DCC cannot disclose information which is subject to section 30, for the purpose of proceedings at law aside from the prosecution of offences under that DPA, without the consent of either the business to which the information relates or the Minister. However, the Tribunal does not accept that the information therefore simply cannot be disclose in procurement complaint proceedings, because the Minister is specifically empowered under subsection 30(b) to consent to such disclosure for the purpose of any proceeding at law. DCC’s argument that it is bound by CDCI’s wishes as to disclosure of the information is therefore at best mistaken, and at worst disingenuous, because the Minister also has the power to consent to the information’s release.

[128] Further, the Tribunal does not accept DCC’s arguments that the information should not be disclosed because the information is confidential and “the complainant and CDCI are competitors in a competitive marketplace.” [138] As DCC is well aware, the Tribunal has in place robust and well‑established procedures for the protection of confidential information submitted in the course of procurement complaint proceedings.

[129] Pursuant to section 45 of the CITT Act, information designated as confidential and submitted for the purposes of proceedings before the Tribunal pursuant to paragraph 46(1)(a) is protected from further disclosure except to counsel for any party to those proceedings or to other proceedings arising out of those proceedings or to an expert, acting under the control or direction of that counsel, for use, notwithstanding any other act or law, by that counsel or expert only in those proceedings. Further, the Tribunal may impose any conditions it considers reasonably necessary or desirable to ensure that the information will not be disclosed by counsel or the expert to any person in any manner that is calculated or likely to make it available to a party to the proceedings, including a party represented by that counsel or on whose behalf that expert is acting, or any business competitor or rival of any person to whose business or affairs the information relates.

[130] Pursuant to subsections 45(6) and (7) of the CITT Act, any counsel or experts who wrongfully disclose confidential information or violate any condition so imposed by the Tribunal, is guilty of either an indictable offence or an offence punishable on summary conviction, and liable to a fine of up to $1,000,000. All independent counsel requiring access to the confidential record are required to file a revised Form III – Declaration and Undertaking (Counsel of Record) – E‑registry Service – Pilot Project, which can be found on the Tribunal’s website. Bronson is represented in this matter by independent counsel, all of whom have signed and filed this form.

[131] The Tribunal therefore considers to be unfounded any concerns that disclosure of the requested information, to itself or to Bronson’s independent counsel, for the purposes of these proceedings, would result in the further dissemination of that information. Such unfounded concerns may or may not have underpinned CDCI’s refusal to disclose the information, and as it is not a party to these proceedings, CDCI was free to refuse disclosure on that or some other basis, well-founded or otherwise. However, such unfounded concerns in no way obviate the government’s disclosure obligations under rule 103 of the Rules. In the Tribunal’s view, DCC has therefore provided no reasonable explanation for the lack of consent to disclosure on the part of the Minister.

[132] This is not to suggest that the Tribunal has some supervisory function over decisions of the Minister under subsection 30(b) of the DPA. It is merely to acknowledge that the vesting of authority in the Minister to consent to such disclosure does not absolve DCC of its disclosure obligations in these proceedings. DCC’s inability to disclose such information where the Minister does not so consent is an issue to be resolved between DCC and the Minister, it does not affect DCC’s disclosure obligations in proceedings such as these. Even if the Tribunal cannot order DCC to disclose information which is subject to section 30, it would therefore still be open to the Tribunal to draw a negative inference from such lack of disclosure, if it considered the information in question as necessary to resolve the complaint, and potentially to find such lack of disclosure to constitute a breach of Canada’s obligations under the trade agreements.

[133] As stated at the outset of these reasons, and to be perfectly clear, the Tribunal considers that DCC’s position would merit drawing an adverse inference if the information pertaining to the evaluation of CDCI’s bid were necessary to resolving the complaint. As confirmed by the Federal Court of Appeal in Heiltsuk, the determination as to whether such information is necessary to resolving a complaint is a procedural matter falling within the Tribunal’s discretion, and is unaffected by either DCC’s inability to produce it or the Minister’s unwillingness to consent to its production under section 30 of the DPA. The Tribunal will not allow section 30 to become a vehicle for DCC to avoid its disclosure obligations in procurement complaints to which it is a party.

COSTS

[134] The Tribunal’s preliminary indication regarding the cost award is that each party will bear its own costs. While costs are generally awarded to the winning party, the Tribunal has on occasion declined to do so “in keeping with [its] discretion as a court of record and master of its own procedure . . . .” [139] For example, the Tribunal has declined to award costs to a winning party that withheld relevant information and/or unduly complicated the proceedings. [140]

[135] In the Tribunal’s view, DCC made this complaint considerably more procedurally complicated than necessary. As explained above, DCC has provided no reasonable explanation for the Minister’s lack of consent to disclosure of the requested information. Nor has DCC explained why it invoked section 30 of the DPA in these proceedings, when it has never done so in previous procurement complaints before this Tribunal in which it acted as respondent. While the requested information was ultimately not necessary to resolve the complaint, the lack of any tenable answer to these questions necessitated canvassing the issue through multiple rounds of further submissions. Finally, in the Tribunal’s view, Bronson’s complaint—while ultimately not valid—was not frivolous either. As such, the Tribunal finds it appropriate for each party to bear its own costs.

DETERMINATION

[136] 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. The Tribunal’s preliminary indication regarding the cost award is that each party will bear its own costs. The Tribunal reserves jurisdiction to establish the final amount of the cost award.

Serge Fréchette

Serge Fréchette
Presiding Member

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

[2] R.S.C., 1985, c. D-1 [DPA].

[3] Exhibit PR-2020-071-01 at 35.

[4] Exhibit PR-2020-071-01 at 35-36.

[5] Exhibit PR-2020-071-09A at para. 7.

[6] Exhibit PR-2020-071-01 at 41.

[7] Exhibit PR-2020-071-01 at para. 18.

[8] Exhibit PR-2020-071-09A at para. 2.

[9] Exhibit PR-2020-071-01A (protected) at 59.

[10] Exhibit PR-2020-071-09A at para. 27.

[11] Exhibit PR-2020-071-01 at paras. 25-26; Exhibit PR-2020-071-09A at para. 28; Exhibit PR-2020-071-01A (protected) at 59-61.

[12] Exhibit PR-2020-071-01 at para. 27.

[13] Exhibit PR-2020-071-01A (protected) at para. 27.

[14] Exhibit PR-2020-071-01 at paras. 29, 31.

[15] Exhibit PR-2020-071-01; Exhibit PR-2020-071-01A (protected).

[16] Exhibit PR-2020-071-03; Exhibit PR-2020-071-04.

[17] Exhibit PR-2020-071-05.

[18] Exhibit PR-2020-071-06.

[19] Exhibit PR-2020-071-07.

[20] Exhibit PR-2020-071-08.

[21] Exhibit PR-2020-071-09A; Confidential GIR, Exhibit PR-2020-071-09B (protected).

[22] Exhibit PR-2020-071-10.

[23] Exhibit PR-2020-071-11A; Exhibit PR-2020-071-11B (protected).

[24] Exhibit PR-2020-071-11.

[25] Exhibit PR-2020-071-13.

[26] Exhibit PR-2020-071-12.

[27] Exhibit PR-2020-071-14.

[28] Exhibit PR-2020-071-15.

[29] Exhibit PR-2020-071-16.

[30] Exhibit PR-2020-071-17.

[31] Exhibit PR-2020-071-18.

[32] Exhibit PR-2020-071-19.

[33] Exhibit PR-2020-071-23.

[34] Exhibit PR-2020-071-25.

[35] Exhibit PR-2020-071-26. DCC was somewhat vague on whether it had actually requested the Minister’s decision on consent, stating “Ministerial correspondence is privileged pursuant to section 39 of the Canada Evidence Act (R.S.C., 1985, c. C-5). Accordingly, we can only confirm that the Minister has not provided consent to disclosure pursuant to subsection 30(b) of the DPA.” The Tribunal considers this to sufficiently demonstrate that the Minister has not consented.

[36] Exhibit PR-2020-071-27.

[37] Exhibit PR-2020-071-28.

[38] Exhibit PR-2020-071-29; Exhibit PR-2020-071-29A (protected).

[39] Exhibit PR-2020-071-30.

[40] Exhibit PR-2020-071-31.

[41] Exhibit PR-2020-071-32.

[42] Exhibit PR-2020-071-01 at paras. 42-46.

[43] Exhibit PR-2020-071-01 at paras. 51-54.

[44] Exhibit PR-2020-071-01A (protected) at para. 52.

[45] Smith Vigeant Architectes Inc. + ABCP Architecture (14 August 2017), PR-2017-009 (CITT) [Smith Vigeant].

[46] Smith Vigeant at paras. 34-36.

[47] Star Group International Trading Corporation (7 April 2014), PR-2013-032 (CITT) [Star Group].

[48] Exhibit PR-2020-071-01 at paras. 57-58.

[49] Space2Place Design Inc. (30 October 2015), PR-2015-012 (CITT) [Space2Place].

[50] Space2Place at para. 38.

[51] See, for example, Insight Safety and Sports Inc. (3 August 2018), PR-2018-013 (CITT) at para. 11; Dynamic Engineering Inc. (16 May 2018), PR-2017-060 (CITT) at para. 38; Workplace Medical Corp. (28 July 2015), PR‑2015-004 (CITT) at paras. 36-37.

[52] Exhibit PR-2020-071-01 at 44-45.

[53] Exhibit PR-2020-071-09A at paras. 4(i), 10-11.

[54] Exhibit PR-2020-071-09A at paras. 13-16.

[55] Exhibit PR-2020-071-09A at paras. 34-38, citing Re R.E.D. Electronics (26 July 1995), 94N6660-021-0024 (CITT).

[56] Exhibit PR-2020-071-01 at 41.

[57] Exhibit PR-2020-071-09A at paras. 40-43.

[58] Exhibit PR-2020-071-09A at para. 48 and at 25-26; Exhibit PR-2020-071-01 at 52-54.

[59] Exhibit PR-2020-071-11A at 2.

[60] Exhibit PR-2020-071-29 at paras. 6-12.

[61] Exhibit PR-2020-071-11B (protected) at 5.

[62] Exhibit PR-2020-071-11B (protected) at 2.

[63] Exhibit PR-2020-071-29 at paras. 19-22.

[64] Exhibit PR-2020-071-32 at para. 19.

[65] Exhibit PR-2020-071-29 at paras. 32-34.

[66] Deloitte Inc. (25 July 2017), PR-2016-069 (CITT) [Deloitte].

[67] Exhibit PR-2020-071-29 at paras. 45-46, citing Deloitte at para. 52.

[68] Saskatchewan Polytechnic Institute v. Canada (Attorney General), 2015 FCA 16 [Saskatchewan Polytechnic Institute] at para. 7. See also AJL Consulting (12 February 2020), PR‑2019-045 (CITT) [AJL] at para. 8, citing Kuzma Industrial Group Inc. v. Department of Public Works and Government Services (4 October 2019), PR-2019-023 (CITT) at para. 21; Joint Venture of BMT Fleet Technology Limited and NOTRA Inc. (5 November 2008), PR-2008-023 (CITT) at para. 25. See also Brains II Canada Inc. (28 March 2012), PR-2011-056 (CITT) at para. 19, citing Northern Lights Aerobatic Team, Inc. (6 October 2005), PR-2005-004 (CITT).

[69] AJL at para. 9. See also CAE Inc. v. Department of Public Works and Government Services (26 August 2014), PR-2014-007 (CITT) at para. 45; Team Sunray and CAE Inc. v. Department of Public Works and Government Services (25 October 2012), PR-2012-013 (CITT) at para. 41; Falconry Concepts v. Department of Public Works and Government Services (10 January 2011), PR-2010-046 (CITT) at para. 59; C3 Polymeric Limited v. National Gallery of Canada (21 February 2013), PR-2012-020 (CITT) at para. 39; Pennecon Hydraulic Systems v. Department of Public Works and Government Services (4 September 2019), PR-2019-007 (CITT) at para. 56.

[70] Exhibit PR-2020-071-01 at paras. 55-59.

[71] Exhibit PR-2020-071-29 at paras. 45-46.

[72] Smith Vigeant at para. 35.

[73] Smith Vigeant at paras. 34-36.

[74] Star Group at para. 54.

[75] Star Group at paras. 55-56.

[76] Space2Place at para. 38.

[77] Exhibit PR-2020-071-01 at 41; section 1.4 of the RFAP points to definitions for these terms in the “Instructions to Proponents” appended to the RFAP, which were not submitted as evidence in this complaint.

[78] Deloitte at para. 52.

[79] Deloitte at paras. 45, 50.

[80] Deloitte at para. 53.

[81] CGI Information systems and Management Consultants Inc. (2 September 2014), PR-2014-006 (CITT) [CGI].

[82] CGI at para. 77, citing Siemens Westinghouse Inc. v. Canada (Minister of Public Works and Government Services), 2001 FCA 241 at paras. 43, 45; MIL Systems (a Division of Davie Industries Inc.) and Fleetway Inc. (6 March 2000), PR-99-034 (CITT) at 19-20.

[83] Exhibit PR-2020-071-29 at para. 22.

[84] Exhibit PR-2020-071-32 at para. 19.

[85] Exhibit PR-2020-071-31 at paras. 21-22.

[86] Alcohol Countermeasure systems Corp. v. Royal Canadian Mounted Police (24 April 2014), PR-2013-041 (CITT) at para. 39, citing CAE Inc. v. Department of Public Works and Governmental Services (7 September 2004), PR‑2004-008 (CITT) at para 43.

[87] Almon Equipment Limited (17 January 2012), PR-2011-023 (CITT) [Almon]; application for judicial review dismissed 2012 FCA 318.

[88] Exhibit PR-2020-071-29 at paras. 42-43, citing Smith Vigeant at para. 35.

[89] Exhibit PR-2020-071-29A (protected) at paras. 38-41.

[90] Exhibit PR-2020-071-29A (protected) at para. 35; Exhibit PR-2020-071-11B (protected) at 5.

[91] Exhibit PR-2020-071-01 at 45-46.

[92] Exhibit PR-2020-071-10.

[93] Exhibit PR-2020-071-25.

[94] Foundry Networks Inc. (12 March 2002), PR-2001-048 (CITT) [Foundry Networks].

[95] Exhibit PR-2020-071-16 at 2.

[96] Exhibit PR-2020-071-16 at 3, citing: Star Group; Tiree Facility Solutions (27 January 2014), PR-2013-020 (CITT); Zenix Engineering Ltd. (3 May 2007), PR-2006-035 (CITT); Symtron Systems Inc. (10 September 1997), PR‑97‑008 (CITT).

[97] SOR/91-499 [Rules], rule 103(1).

[98] Exhibit PR-2020-071-17 at 1.

[99] R.S.C., 1985, c. A-1 [ATIA].

[100] 2011 FC 641 [Top Aces].

[101] Top Aces Consulting Inc. v. Canada (National Defence) at para. 30.

[102] Exhibit PR-2020-071-16 at 3.

[103] Exhibit PR-2020-071-17 at 4, citing Top Aces at para. 27.

[104] Irving Shipbuilding Inc. v. Canada (Attorney General), 2008 FC 1102 at para. 46.

[105] Exhibit PR-2020-071-01 at 98.

[106] Exhibit PR-2020-071-17 at 4.

[107] 2012 FCA 75 at para. 17.

[108] Top Aces at para. 29.

[109] Exhibit PR-2020-071-29 at para. 66.

[110] Exhibit PR-2020-071-29 at para. 67.

[111] Exhibit PR-2020-071-29 at para. 74.

[112] Les Systèmes Equinox Inc. (12 March 2009), PR-2006-045R (CITT) [Systèmes Equinox], application for judicial review dismissed 2009 FCA 304.

[113] Exhibit PR-2020-071-29 at paras. 60-66.

[114] Exhibit PR-2020-071-31 at paras. 3-6.

[115] Exhibit PR-2020-071-32 at para. 2; rules 103(1)(b) and 103(1)(d).

[116] Exhibit PR-2020-071-31 at paras. 1, 6.

[117] Exhibit PR-2020-071-32 at paras. 12-13.

[118] Exhibit PR-2020-071-31 at paras. 10-12.

[119] 2020 FCA 106 [Caron Transport].

[120] Exhibit PR-2020-071-31 at para. 9.

[121] Caron Transport at para. 10, citing Alan Bryant, Sidney Lederman & Michelle Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018).

[122] Exhibit PR-2020-071-32 at paras. 6-10.

[123] Exhibit PR-2020-071-31 at para. 15.

[124] Exhibit PR-2020-071-32 at para.18.

[125] Exhibit PR-2020-071-32 at para. 9.

[126] Saskatchewan Polytechnic Institute v. Canada (Attorney General), 2015 FCA 16 [Saskatchewan Polytechnic Institute] at para. 7. See also Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Ltd., 2021 FCA 26 [Heiltsuk] at para. 70.

[127] Exhibit PR-2020-071-01A (protected) at para. 27.

[128] Exhibit PR-2020-071-01A (protected) at para. 26.

[129] Exhibit PR-2020-071-01A (protected) at 66-67.

[130] Exhibit PR-2020-071-01A (protected) at 63.

[131] Exhibit PR-2020-071-01A (protected) at 65.

[132] Exhibit PR-2020-071-01 at 48.

[133] Exhibit PR-2020-071-01A (protected) at 61.

[134] Heiltsuk at paras. 65, 106.

[135] Heiltsuk at paras. 65, 107-109.

[136] Exhibit PR-2020-071-31 at para. 16; Exhibit PR-2020-071-32 at para. 16.

[137] Rules 103(1)(b) and 103(1)(d).

[138] Exhibit PR-2020-071-17 at 5.

[139] Francis H.V.A.C. Services Ltd. v. Department of Public Works and Government Services (2 September 2016), PR-2016-003 (CITT) [Francis H.V.A.C.] at para. 53.

[140] See e.g. Francis H.V.A.C. at para. 57; The Masha Krupp Translation Group Ltd. v. Canada Revenue Agency (20 March 2017), PR-2016-041 (CITT) at para. 90; Workplace Medical Corp. v. Canada Food Inspection Agency (28 July 2015), PR-2015-004 (CITT) at para. 49.

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