CITT: April 2006 Determinations
Re Raymond Arsenault Consultant Inc. (CITT File No. PR-2005-042)
The Canadian International Trade Tribunal determined that the complaint filed by Raymond Arsenault Consultant Inc. ("RAC") against the Department of Public Works and Government Services ("PWGSC") was not valid. The procurement at issue was on behalf of the Public Service Commission ("PSC") for the provision of writing and editing services, including speech writing. RAC alleged that PSC had improperly declared non-compliant the two proposals submitted on the basis that neither provided the dates of birth of the proposed individuals. RAC asserted that PWGSC had access to the dates of birth as a consequence of having access to the security clearance file numbers. In addition, RAC asserted that it was inappropriate to require information about an individual's age.
The CITT accepted that the PSC does not have access to the security files of other federal departments, and as such, relies on the date of birth to verify the identity of the individual. The CITT also accepted that the PSC was going to use the date of birth for the sole purpose of certifying security information and not for information about age. Furthermore, the PSC had provided all bidders with the mandatory requirements and spelled out the consequences of not meeting them.
RSC had not expressed any concerns or inquired about the mandatory criterion during the biding process. The CITT found that the requirements were fair, equitable and clear, and that RAC should have complied with them to avoid being declared non-compliant. As a result, the CITT determined that the complaint was not valid. (Date of Determination: 2006/04/18; Date of Reasons: 2006/05/15)
Re A Complaint by CNW Group Ltd. (CITT File No. PR-2006-002)
The CITT declined to conduct an inquiry into this complaint, on the basis that the complaint was not made in respect to a designated contract. To be a designated contract, the value of the goods or services solicited must be at least $100,000 under the Agreement on Internal Trade, at least $245,000 under the Agreement on Government Procurement, or at least $84,000 under NAFTA. (Date of Determination: 2006/04/20)
Re A Complaint by Basil Corporate Solutions Inc. (CITT File No. PR-2005-057 and PR-2006-005)
The CITT declined to conduct an inquiry into a complaint submitted by Basil Corporate Solutions Inc. (BCS) because the complaint was submitted to the Tribunal outside the allowable timeframe.
BCS alleged that Public Works and Government Services Canada (PWGSC) did not allow sufficient time for bidders to prepare their proposals, and requested an 8-week extension from PWGSC. PWGSC advised BCS in writing, on March 15, 2006, that only a 2-week extension would be allowed. Under s. 6(2) of the CITT Regulations, a potential supplier must file a complaint with the Tribunal "within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief…" The CITT determined that the communication on March 15 constituted knowledge of the denial of relief, and that BCS' later objections to PWGSC were effectively the same objection, and would therefore not extend the time period for filing a complaint with the CITT.
BCS requested a reconsideration of its complaint, this time alleging that PWGSC procurement practices reflect a systemic problem. The CITT rejected this new argument since there was no evidence that this action was the result of a general policy or regular practice. (Date of Determination: 2006/04/05 and 2006/04/24)
Re A Complaint by EFJohnson (CITT File No. PR-2006-006)
The CITT decided not to conduct an inquiry into this complaint for two reasons.
First, since the goods being procured fall under Federal Supply Classification Group 58 (communications, detection and coherent radiation equipment), only the Agreement on Internal Trade (AIT). NAFTA or WTO rules did not apply to the solicitation. EFJohnson was found not to have standing under the AIT, since there was no evidence of a permanent Canadian place of business.
Second, the CITT found that even if EFJohnson had standing, there was no reasonable indication that the procurement had not been carried out in accordance with the AIT. The RFP clearly required that maintenance manuals containing specific categories of information accompany the technical proposal to Public Works and Government Services Canada (PWGSC). EFJohnson's proposal was disqualified because its manuals did not contain the required information, which was consistent with the terms set out in the RFP. (Date of Determination: 2006/04/26)
Re A Complaint by Envoy Relocation Services (CITT File No. PR-2004-054R)
The CITT was asked to reconsider its remedy respecting a complaint by Envoy Relocation Services (Envoy) against the Department of Public Works and Government Services (PWGSC) that had been found to be valid. The complaint concerned a procurement on behalf of the Treasury Board of Canada Secretariat, the RCMP and the Canadian Forces for services relating to the relocation of employees. The solicitation called for a separate proposal for each of the three government groups and resulted in two contracts being awarded to Royal LePage Relocation Services Limited (Royal LePage) - a joint one for the Treasury Board and RCMP and a separate one for the Canadian Forces. Envoy had alleged that PWGSC improperly evaluated its proposals by improperly comparing them against each other, resulting in a significant downgrading of its technical scores. The CITT had previously determined that Envoy's complaint was valid in part. It had recommended that PWGSC re-evaluate all responses to the Request for Proposal (RFP) using a new evaluation team and award the contract to the new winner. Upon judicial review by the Federal Court of Appeal, the matter was remitted to the CITT for reconsideration of the remedy, limited to the relief sought by Envoy in its complaint. Envoy had requested that it be compensated for lost profits and its costs of preparing its bids and proceeding with its complaint.
In the original decision, the CITT had found that there had been a serious breach of evaluation procedures that prejudiced the integrity of the government procurement system as a whole, and that the new remedy should reflect the seriousness of the breach. Following the judgement of the Federal Court of Appeal, the CITT found that, had Envoy been aware that the technical sections of its bids would be compared by the evaluators, contrary to the provisions of the RFP, it would have either: (1) not submitted bids at all, (2) structured its technical section of its bids differently to avoid perceived inconsistencies, or (3) bid only on one of the contracts, rather than preparing two bids.
The CITT held that Envoy had not indicated in its submissions which route it would have selected. However, it had consistently indicated a strong interest in the contract through its correspondence with PWGSC and its decision to bid on the second solicitation after the first had been cancelled. Therefore, the CITT did not feel that Envoy would have refrained from bidding altogether. The Tribunal, therefore, awarded Envoy an amount equal to 50 percent of its bid preparation costs in order to reflect the seriousness of the breach by PWGSC. Envoy also received its costs for the reconsideration in the amount of $500. (Date of Determination: 2006/04/26)
This Determination is subject to judicial review by the Federal Court of Appeal.
