CITT: February 2006 Determinations
Re A Complaint by L-3 Communications Electronic Systems Inc. (CITT File No. PR-2005-032)
This was a complaint by L-3 Communications Electronic Systems Inc. (L-3) with respect to a procurement by the Department of Public Works and Government Services Canada (PWGSC) for the provision of hardware maintenance and support for air simulators and trainers on behalf of Department of National Defence (DND).
L-3 alleged that PWGSC incorrectly declared its bid late and thus incomplete. In this case, L-3 had been advised that a problem with its bid had occurred quickly and that portions of its bid transmitted after the bid closing date and time. The CITT found that L-3 knew the basis of its complaint earlier than it had indicated. The timing of L-3's filing of its complaint was an issue.
On the day L-3 was advised that its bid was going to be rejected for being incomplete, it objected to the characterization and attempted unsuccessfully to have the decision reversed or to have the bid that it started sending substituted by another "complete" hard copy or e-mailed version. It was advised of this by phone call. L-3 argued that it did not receive denial of relief by PWGSC in writing.
The CITT stated that in a recent decision ( Re A Complaint by Joncas PostExperts, CITT File No. PR-2005-028), "denial of relief need not be in writing."
As such, the CITT found that L-3 filed its complaint late and did not comply with the timeframes as set out in subsection 6(2) of the CITT Regulations. Instead of immediately filing a complaint with the CITT, L-3 continued in its attempts to persuade PWGSC that its bid was not incomplete or to rectify by sending an e-mail version after bid closing, even though it had been informed prior to bid closing that bids could not be submitted by e-mail.
The complaint was therefore dismissed. The complaint was assessed at a Level 1 complexity and the cost award assessed at $1,000.00. (Date of Determination: 2006/02/07.)
Re A Complaint by Digidyne inc. (CITT File No. PR-2005-053)
The CITT decided not to initiate an inquiry into this complaint by Digidyne inc. (Digidyne) against the Department of Public Works and Government Services Canada (PWGSC). Digidyne alleged that PWGSC improperly cancelled the subject Request for Proposal (RFP) and inappropriately issued extension to the existing contract to another company.
After Digidyne submitted its proposal on time and was asked to confirm the total bid price, it received an e-mail from PWGSC advising that the "requirement is hereby cancelled." The RFP, however, contained a clause that stated "Canada reserves the right to…cancel and/or reissue this requirement at any time." As such, the CITT found no reasonable indication that PWGSC breached its obligations under the trade agreements.
The CITT found that it did not have jurisdiction to deal with the issue of whether an extension to the existing contract had been inappropriately issued. The CITT "does not have the authority to investigate existing government-contractor relationships or any alleged improprieties on the part of one bidder regarding its treatment of another bidder's subcontractor."
Digidyne had expressed concern that the cancellation of the RFP would provide its competition "with the opportunity to make material changes to the proposed new FRP that may jeopardize our consortiums future opportunity to respond with a technical and low price response." In keeping with the CITT's mandate to ensure that the trade agreements' goal of conducting procurement in an open, fair and transparent manner, it said it would review any evidence provided by Digidyne or any other company about the new RFP and determine if an inquiry is warranted at that time. (Date of Determination: 2006/02/13.)
Re Averna Technologies Inc. (CITT File No. PR-2005-035)
The Canadian International Trade Tribunal determined that the complaint filed by Averna Technologies Inc. against the Department of Public Works and Government Services ("PWGSC") was valid. The procurement at issue was on behalf of the Department of National Defence, for updating acquisition and control systems at the experimental complex at Defence Research and Development Canada ("DRDC") – Valcartier. Averna alleged that the contract had been awarded to a company that was in violation of the Request for Proposal's ("RFP") conflict of interest provisions and that the technical evaluation criteria had been discriminatorily applied.
The CITT found that the services in question were not research and development services, and therefore the North American Free Trade Agreement ("NAFTA") and the Agreement on Government Procurement ("AGP") were applicable. The Agreement on Internal Trade ("AIT") also applied. As a result, the requirement in both is that, "[a]wards shall be made in accordance with the criteria and essential requirements specified in the tender documentation" was binding. The CITT found that, after reviewing the RFP document, there was no doubt the report prepared by competing bidder Néosoft was essential to the RFP and that Canada did engage the assistance of Néosoft in preparing the RFP. This was contrary to the RFP's conflict of interest provisions. In light of this finding, PWGSC was found to have breached provisions of the AIT, NAFTA and the AGP.
The CITT deemed it unnecessary to rule on Averna's other grounds of complaint. As a remedy, the CITT recommended PWGSC cancel the contract awarded to Néosoft and award it to the only other qualified bidder, Averna. In the alternative, Averna should be compensated by an amount that recognizes the profit that it could have made if it had been awarded the contract. The CITT also awarded Averna a cost award of $2,400 for its reasonable costs incurred in preparing and proceeding with its complaint. (Date of Determination: 2006/02/13.)
Re A Complaint by Les Systèmes Equinox Inc. (CITT File No. PR-2005-052)
The CITT decided not to initiate an inquiry into this complaint by Les Systèmes Equinox Inc. (Equinox) against the Department of Public Works and Government Services Canada (PWGSC). Equinox alleged that PWGSC improperly disqualified its financial proposal.
The CITT found that, while Equinox had objected to PWGSC within the prescribed time, it had been advised of the reasons for the disqualification at a debriefing that took place on January 5, 2006. Despite sending an email asking for confirmation of the discussions at the debriefing, the CITT held that Equinox was aware at the debriefing that PWGSC was maintaining its position. As such, its complaint on February 3, 2006 was not filed within the timeframe set out in s.6 of the CITT Regulations. (Date of Determination: 2006/02/15.)
Re A Complaint by Biz-Pro Limited (CITT File No. PR-2005-037)
The CITT determined that the complaint by Biz-Pro Limited (Biz-Pro) was not valid. The complaint by Biz-Pro involved an allegation that Public Works and Government Services Canada (PWGSC) awarded a contract to a supplier whose product did not meet the mandatory specifications of the solicitation. The issue in this matter was the language of a requirement in the RFP, and whether this qualified it as mandatory.
The CITT found that though the wording of the RFP was somewhat imprecise due to the use of mandatory language in the overview section of the RFP, the tender documents did delineate the mandatory requirements for this procurement. Furthermore, the CITT took note of Biz-Pro's position that no equipment could meet the requirement at issue. The CITT noted that no evidence was submitted indicating that Biz-Pro raised the issue of the RFP's potentially fatal flaw with PWGSC at any time prior to the closing of the bid. If Biz-Pro actually thought that the overview section was mandatory, it did not indicate to PWGSC that these terms could not be satisfied. Instead, it offered equipment that it apparently knew could not satisfy.
In the end, the CITT felt that if Biz-Pro knew that its own product offering would not satisfy the temperature requirements of the RFP, its argument that the terms of the overview were mandatory is devoid of merit. The interpretation was that Biz-Pro did not actually consider this requirement as mandatory, given that it did not seek to have the RFP amended and ultimately offered equipment that it knew could not satisfy the requirement it was objecting to. (Date of Determination: 2006/02/16.)
Re A Complaint by BMCI Consulting Inc. (CITT File No. PR-2005-049)
The CITT decided not to initiate an inquiry into this complaint by BMCI Consulting Inc. (BMCI) against the Canadian International Development Agency (CIDA). BMCI alleged that CIDA had not provided it with sufficient information regarding the evaluation of proposals that would permit it to file a complaint with the Tribunal.
BMCI received letters from CIDA rejecting its proposals on April 4 and 5, 2005. A debriefing was held on April 19, 2005 and BMCI was given some information about the evaluation and then told that further information must be sought through Access to Information. Article 1015 6(b) of the North American Free Trade Agreement provides that a supplier whose tender is not selected must be provided with the reasons, the relevant characteristics and advantages of the tender selected and the name of the winning supplier.
The CITT found that BMCI became aware or reasonably should have become aware of the basis for its complaint at the debriefing. The reference to "Access to Information" was not an indication that any more information would be forthcoming. Since the complaint was not filed until February 7, 2006, it was not filed within the required time limits under subsection 6(1) of the Regulations.
The CITT noted that the Tribunal does not have jurisdiction over the Access to Information process and if any information were to arise that indicated that CIDA did not follow the applicable trade agreements in evaluating proposals, a new complaint could be filed. (Date of Determination: 2006/02/16.)
