CITT: May 2006 Determinations
Re A Complaint by Vantage Point International Inc. (File No. PR-2006-009)
The CITT decided not to initiate an inquiry into this complaint by Vantage Point International Inc. (Vantage Point) against the Department of Public Works and Government Services Canada (PWGSC). Vantage Point alleged that PWGSC improperly awarded a contract to C-CORE, a private sector non-profit corporation.
The legal object of C-CORE's Supplementary Letters Patent (Letters) limited C-CORE's ability to undertake the work contemplated by PWGSC's Request for Proposal. The CITT found that although C-CORE had incorrectly certified in its bid that it could legally perform the contract, PWGSC was unaware of the alleged incapacity. The Tribunal felt that the allegation made by Vantage Point was a matter of contract administration and was not within the jurisdiction of the CITT. Accordingly, there was no reasonable indication that the procurement had not been carried out in accordance with the applicable trade agreements. (Date of determination: 2006/05/10.)
Re Deloitte & Touche LLP v. Department of Public Works and Government Services (CITT File No. PR-2005-044)
In this case, the Canadian International Trade Tribunal recommended that the Department of Public Works and Government Services ("PWGSC") compensate Deloitte & Touche LLP ("Deloitte") for its lost opportunity at one-quarter of the profit that Deloitte would have earned had it been the successful bidder in the procurement.
Deloitte filed a complaint with the CITT under subsection 30.11(1) of the Canadian International Trade Tribunal Act, alleging that PWGSC did not fully disclose the evaluation criteria in the solicitation document. Deloitte submitted that, until it received the scoring grid, Deloitte was not aware that it existed or that the scoring methodology used was going to be applied. Moreover, the criterion for "allocation of resources" was not evaluated as per the Request for Proposal ("RFP") and none of the mandatory or rated criteria in the RFP indicated a clear and specific requirement, or in any way preference, for individuals submitted as part of the proposal to work a minimum of 15 days or that employees who were allocated for a greater number of days would receive more points. Deloitte contended that had it known this, that it would have structured its proposal very differently.
PWGSC submitted that the RFP clearly indicated that "allocation of resources" meant the number of days for which a resource was allocated to the project. Additionally, the Statement of Work stated the importance of significant partner-level involvement in the project and that the assistance of lead senior-level audit professional on an ongoing basis would be required. PWGSC also contended that the point scoring of Deloitte's proposal with respect to the allocation of resources had no bearing on the results of the competitive process and that, consequently, Deloitte was not prejudiced by the scoring of its proposal.
Based on the normal usage of language, the CITT determined that the amount of resources allocated to a project is a combination of the number of people allocated and the amount of time allocated for each person. Therefore, there were two possible approaches that could result in significant partner involvement in the project as contemplated by the SOW and address the requirement. The CITT also determined that the RFP did not indicate to bidders whether these two approaches are equally desirable, or whether one is preferred over the other. However, scoring methodology used by PWGSC clearly resulted in a higher score for one approach, whereas Deloitte used the other approach.
Accordingly, Deloitte's complaint was valid as PWGSC used an evaluation criterion not previously disclosed to bidders, or reasonably predictable from the RFP.
The CITT awarded Deloitte one-quarter its lost profits had it been awarded the contract, which was determined given that there were four responsive proposals. Reasonable costs were also awarded to Deloitte for what it incurred in preparing and proceeding with the complaint. (Date of Determination: 2006/05/11);
Re Luc Coulombe, Operating as Enterprise Aérologique Rafale o Nord v. Department of the Environment (CITT File No. PR-2005-054)
The Canadian International Trade Tribunal determined that the complaint made by Entreprise aérologique Rafale O Nord ("Rafale") under section 30.11(1) of the Canadian International Trade Tribunal Act was valid. Rafale alleged that Environment Canada did not provide suppliers with a reasonable amount of time to submit proposals. The CITT recommended, as a remedy, that the Department of the Environment give Luc Coulombe, acting as representative for Rafale, three weeks to respond to the original Request for Proposal ("RFP").
In this case, Environment Canada had made an RFP for the provision of services to execute the upper air program at the Inukjuak Station. The RFP was published on January 27, 2006, with a bid closing date of February 10, 2006. Rafale, located in Inukjuak, Nunavik, only found out about the procurement on February 11, 2006, in a local newspaper with its headquarters in Iqualuit. The paper is not circulated very quickly to Inukjuak.
The CITT first considered its jurisdiction to consider the issue, determining that the only role it had was deciding whether Environment Canada complied with the obligations set out by the Government of Canada under the Agreement on Internal Trade ("AIT "), which was referred to in the RFP. Under the AIT, the Government of Canada agrees to provide Canadian suppliers with "a reasonable period of time for bidders to submit a bid, taking into account the time needed to disseminate the information and the complexity of the procurement." Bearing in mind that the purpose of the AIT is to establish a framework that will ensure equal access to procurement for all Canadian suppliers, the CITT determined that the 14 days allotted for the submission of did not take into account the remote regions that some suppliers may be located, particularly in the case of Rafale.
The CITT was clear that in other circumstances, publishing an RFP with a 14-day time period for submitting bids may be reasonable in normal circumstances, but the specific case of a remote place like Inukjuak, it did not meet the requirements of the AIT. (Date of Determination: 2006/05/23)
Re A Complaint by FLAG CONNECTION INC. (File No. PR-2006-011)
The CITT decided not to initiate an inquiry into this complaint by FLAG CONNECTION INC. (FCI) against the Department of Public Works and Government Services Canada (PWGSC). FCI alleged that PWGSC improperly disqualified their proposal and had improperly awarded the contract to another company.
The Request for Proposal (RFP) stipulated that the bidder was to "ensure that the pre-award sample is manufactured in accordance with the technical requirement of this Request for Proposal and is fully representative of the bid submitted as rejection will be the basis of declaring the bid from that firm non-responsive." The Tribunal considered that to mean that when the pre-award sample submitted with the proposal does not meet the technical requirements of the RFP, that proposal would be disqualified.
FCI was advised by PWGSC that its pre-award sample had failed to meet the "visual inspection requirements," as there were eight instances where the sample was not in conformance with the RFP's technical requirements. FCI argued that PWGSC was not qualified to perform an adequate assessment. The Tribunal found that at least three instances of non-conformance could have been properly identified by PWGSC through a visual inspection. As a result, FCI's proposal was disqualified in accordance with the RFP.
The CITT found FCI's claim of bias had not been established. It also found that the RFP contained no clause permitting "conditional acceptance" of the pre-award samples and that PWGSC's actions were consistent with the RFP. Since FCI presented no evidence that the pre-award sample of the successful bidder did not meet the technical requirements of the RFP, the Tribunal found that there was no reasonable indication that the procurement had not been carried out in accordance with the applicable trade agreements. (Date of Determination: 2006/05/30.)
