CITT: January 2006 Determinations
Re A Complaint by Market Research Associates Ltd. (CITT File No. PR-2005-040)
The CITT declined to conduct an inquiry into this complaint submitted by Market Research Associates Ltd. (MRA) for a variety of reasons.
MRA initiated a complaint against the Department of Public Works and Government Services Canada (PWGSC) on six different grounds. The CITT reviewed each ground to determine, first, whether the complaint had been filed within the allowable timeframe as prescribed by s.6 of the Regulations and, second, whether the complaint disclosed a reasonable indication that the procurement was not carried out in accordance with the applicable trade agreements.
The CITT found that the complaint was filed on time but that there was no evidence to support a reasonable indication of preferential treatment. With respect to the complaint that preferential treatment was given to subsidized bidders, the complaint was found to be premature. The complaints that the evaluation process was unfair, that the financial limitation for call-ups stated in the standing offer to MRA differed from that stated in the RFSO, and that by designating "vicinities" as part of the call-up procedure the RFSO violated the objectives of the Agreement on Internal Trade were all found to be filed outside of the allowable timeframe. Finally, while the complaint that the call-up procedures in the standing offer issued to MRA differed from the procedures specified in the RFSO and its amendment was filed on time, the CITT found that there was no reasonable indication of breach because of a lack of evidence. (Date of Determination: 2006/01/04.)
Re A Complaint by Raymond Arsenault Consultants Inc. (CITT File No. PR-2005-041)
The CITT reviewed a complaint that the Public Service Commission of Canada (PSC) improperly rejected the proposal of Raymond Arsenault Consultants Inc. The CITT decided that the complaint was premature and would not initiate an inquiry at this time.
The bidder objected to the decision rejecting its proposal. However, the government institution had not yet responded to that objection. As such, there has not yet been a "denial of relief" as contemplated by subsection 6(2) of the CITT Regulations and the complaint was deemed to be premature. It does not preclude any future complaint by the bidder once PSC has responded to the objection or failed to do so within a reasonable amount of time. The CITT reminded the bidder that it had to provide the appropriate documentation in support of its complaint. (Date of Determination: 2006/01/04.)
Re A Complaint by Promaxis Systems Inc. (CITT File No. PR-2005-045)
The CITT decided not to initiate an inquiry into this complaint by Promaxis Systems Inc. (Promaxis) against the Department of Public Works and Government Services Canada (PWGSC). Promaxis alleged that PWGSC improperly disqualified portions of its proposal.
The Supply Arrangement Request for Proposal (SARFP) required that the bidder's submission be received no later than "1400 Hrs EST 21 December 2005." Promaxis began faxing its bid 2-3 minutes before the deadline. However, the fax transmission failed and three more faxes were required before the entire proposal was sent. PWGSC disqualified the pages that it had not received by the deadline.
The CITT found that the it must look at the specifics of the SARFP. In this case, the deadline overrode any general references incorporated from the supply arrangement itself. Further, there was no indication that PWGSC breached its obligations under the trade agreements either by requiring proposals be received by the deadline or by refusing to accept the parts that had not been received by the deadline. (Date of Determination: 2006/01/11.)
Re A Complaint by Vita-Tech Laboratories Ltd. (CITT File No. PR-2005-019)
This was an order by the CITT for costs awarded to the Department of Public Works and Government Services Canada (PWGSC) for its reasonable costs incurred in responding to the complaint. The level of complexity was assessed at Level 2 and its preliminary indication of the amount of costs awarded was $2,400.00. (Date of Determination: 2006/01/18.)
Re A Complaint by Société Gamma Inc. (CITT File No. PR-2005-043)
The CITT decided not to initiate an inquiry into this complaint by Société Gamma Inc. (Gamma) against the Immigration and Refugee Board (IRB). Gamma alleged that the IRB improperly disqualified its proposals because the IRB was incorrectly seeking references for the individual resources being proposed by Gamma and not the bidder's corporate capabilities.
The Request for Proposal (RFP) provided that "Each resource must provide the names of two clients for reference verification…" and the CITT found that it imposed an obligation on the resource, not on the bidder. Language found elsewhere in the RFP confirmed that interpretation. Since the RFP clearly indicated that it was the references provided for the resource that would be checked, the CITT found that there was no reasonable indication that the IRB had breached its obligations under the Agreement on Internal Trade when it reviewed the proposals. (Date of Determination: 2006/01/18.)
Re A Complaint by Neptune Military Husbanding (CITT File No. PR-2005-046)
The CITT decided not to initiate an inquiry into this complaint by Neptune Military Husbanding (Neptune) against the Department of Public Works and Government Services Canada (PWGSC). Neptune alleged that PWGSC incorrectly declared its bid non-compliant.
The Request for Standing Offer contained mandatory criteria, one of which was that "Bidders shall demonstrate all individual(s) acting as Project Coordinator EACH possess a minimum of (5) year's recent (within the past 5 years) experience in the provision of coordinator services to naval vessels of similar size and scope within the specified geographical area." Neptune admitted that it had not provided sufficient information under the heading "Personal Experience" but argued that the company experience and personal resume of the proposed project coordinator should have been adequate to meet the mandatory requirement. The CITT found that there was no evidence that PWGSC had not followed the applicable trade agreements. (Date of Determination: 2006/01/19.)
Re A Complaint by OYE! Canada (CITT File No. PR-2005-47)
The CITT decided not to initiate an inquiry into this complaint by OYE! Canada (OYE!) against the National Capital Commission (NCC). OYE! alleged that the NCC had improperly disqualified its proposal.
The Request for Proposal (RFP) and Terms of Reference (TOR) contained the mandatory requirement that the third page of the RFP be signed and returned with the proposal to acknowledge receipt and acceptance of the TOR and the General Conditions for Professional and Consulting Services. OYE! returned a blank form rather than a signed one. The CITT found that since a mandatory requirement had not been met, there was no reasonable indication that the NCC had breached its obligations under the trade agreements when it disqualified OYE!'s proposal. (Date of Determination: 2006/01/23.)
Re A Complaint by C2 Logistics Incorporated (CITT File No. PR-2005-020)
This was a complaint by C2 Logistics Incorporated (C2) with respect to an RFP conducted by the Department of National Defence (DND) for the provision of air charter services. C2 alleged that 1) DND failed to provide suppliers with a reasonable period of time to submit bids; 2) was biased to the technical specifications against the services offered by C2; 3) failed to clearly identify the evaluation criteria; and 4) failed to ensure that the procurement was conducted in a manner that ensured equal access to all suppliers.
The CITT found that the complaint was valid in part. It accepted evidence of industry practice that bidding periods for the provision of air charter services for DND operations are typically short. However, in the circumstances of the RFP in question, the time allowed from the issuance of the third solicitation to bid closing was unnecessarily short. The evidence showed that DND was aware prior to initiating its first solicitation that this would be a challenging procurement. Prior to finalizing the first solicitation, DND advised the eight suppliers on its permanent list of the expected future need for air transportation for the subject requirement, an action that gave the suppliers extra time to look for the required aircraft.
It became evident after an evaluation of the second solicitation that none of the bidders complied with mandatory requirements of the second solicitation. In the third solicitation which required only one week to receive bids after the second solicitation closed, DND tightened the criteria, including the time allowed to submit bids rather than opening them up to make compliant bids a possibility. DND was found to have breached Article 506(5) of the AIT by not providing suppliers with a reasonable period of time to submit a bid. This ground of C2's complaint was valid.
With respect to C2's allegation of DND's biased technical specifications against the services that it offered, the CITT found insufficient evidence on the record to demonstrate that the specifications in the third solicitation were biased to the advantage or disadvantage of any potential bidder.
The third allegation was that DND failed to identify the evaluation criteria clearly. The CITT found that DND breached Article 506(6) of the AIT by not clearly identifying the criteria that will be used in the evaluation of bids and the methods of waiting and evaluating the criteria. This ground of the complaint was valid.
Finally, Article 501 of the AIT as the purpose clause for Chapter 5 of the AIT , comes into play in the CITT's consideration of all grounds of the complaint. As a statement of purpose, it does not give the CITT rise to a new ground of complaint and the CITT did not deal separately with this issue.
The CITT ordered that DND compensate C2 for the opportunity that it lost to participate meaningfully in the procurement process. The CITT did not consider it appropriate to recommend that C2 have the opportunity to bid on the contract in the circumstances.
It awarded C2 its lost opportunity to profit from the contract and calculated that compensation should be of an amount equal to one eighth of the profit it would have earned had it been the successful bidder. C2 was also awarded its reasonable costs incurred in preparing and proceeding with the complaint. The CITT's preliminary indication of the level of complexity for the complaint was Level 2. The amount of the cost award was set at $2,400.00. (Date of Determination: 2006/01/27.)
