CITT: August 2006 Determinations
Re A Complaint by Info-Electronics H P Systems Inc. (CITT File No. PR-2006-012)
The CITT determined that the complaint filed by Info-Electronics H P Systems Inc. (IES) against the Department of Public Works and Government Services (PWGSC) was invalid. The procurement was on behalf of the Department of the Environment for the provision of three complete polar orbiting satellite tracking, receiving and processing systems. IES alleged that PWGSC improperly evaluated its proposal by: (1) double counting the costs for image processing software, causing IES's price to increase unnecessarily; (2) failing to take into account discounts on software licenses offered by IES; (3) failing to give IES sufficient points for small modifications to its software; and (4) failing to ask IES for clarification on its bid.
The goods being procured fell into Federal Supply Classification Group 58, which is excluded under both the North American Free Trade Agreement and the Agreement on Government Procurement. Only the Agreement on Internal Trade (AIT), which had no similar exclusion, applied to this procurement. Two proposals were received, one from IES and one from Seaspace. The contract was awarded to Seaspace. IES requested that the contract be rescinded and awarded to IES.
With respect to the first two grounds of complaint concerning the financial aspects of the bid, the CITT found that the Request for Proposal (RFP) clearly outlined the requirements of the procurement. Prices were to appear only in the financial proposal and not in any other section. The prices quoted were required to be firm unit prices under specific headings. PWGSC had evaluated the financial bid in accordance with the RFP. It was the bidder's responsibility to ensure that the financial information was presented in such a manner as to preclude any possible mistake in evaluating its total firm unit price. The bidder also bore the onus of seeking clarification where required.
With respect to the technical evaluation (ground 3), the CITT found that PWGSC assessed each criteria in accordance with the RFP. IES chose to include some degree of customization to the COTS software that was required under the RFP. While the evaluation documents provided to IES were less detailed than those provided in the Government Institution Report (GIR), the detailed explanations in the GIR indicated that PWGSC evaluators followed a process that was consistent with the stated criteria and evaluation scheme.
Finally, with respect to seeking clarification on IES's bid, the CITT found that the RFP specifically reserved the PWGSC's right to seek clarification, but imposed no obligation on them to do so. That right has also been established in previous Tribunal decisions. If IES found the RFP to be unclear, it should have submitted a question to PWGSC well in advance of bid closing to clarify the bid requirements. As such, this ground of complaint was also invalid. The CITT awarded PWGSC its reasonable costs incurred in responding to the complaint in the amount of $2,400. (Date of Determination: 2006/08/02.)
Re A Complaint by Digidyne Inc. (CITT File No. PR-2006-021)
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, through its inclusion of the requirement for bidders to obtain Original Equipment manufacturer (OEM) certification, unfairly denied DigiDyne the opportunity to bid on the requirement.
The Request for Proposal (RFP) was issued on June 8, 2006. On June 16th, DigiDyne wrote to PWGSC requesting a number of modifications or deletions. On July 12th, PWGSC issued Amendment no. 3, which responded to each of DigiDyne's requests and advised all bidders that there would be no modifications with respect to the certification requirements.
The CITT found that DigiDyne knew of the basis of its complaint on June 8 th when the RFP was issued. Its objection to PWGSC was made within the timeframes set out in s.6(2) of the CITT Regulations. However, DigiDyne knew of its "denial of relief" on July 12 when Amendment no. 3 was issued. In order for the complaint to have been filed with the Tribunal within the timelines, it would have had to have been filed by July 26, 2006. As the complaint was not sent until August 4, and not received until August 8, it was filed outside of the allowable timeframe and could not be considered by the CITT. (Date of Determination: 2006/08/14.)
Re A Complaint by CGI Information Systems and Management Consultants Inc. (CITT File No. PR-2006-010)
The CITT determined that the complaint filed by CGI Information and Management Consultants Inc. (CGI) against the Department of Public Works and Government Services Canada (PWGSC) was invalid. The procurement was on behalf of the Department of National Defence (DND) for the provision of Desktop Management Services (DMS). CGI alleged that the procurement process was conducted in a manner that gave rise to a reasonable apprehension of bias because a company that was involved in the preparation of the Request for Proposal (RFP) and the evaluation of proposals, ASC Group Ltd. (ASC), appeared to have a close business affiliation with the winning bidder, IBM Canada Limited (IBM).
The RFP for DMS services consisted of the following: managing and supporting the DND-wide workstation environment; providing transitioning, training and contract management services; and providing related information technology services on an "as and when requested" basis. The RFP was issued on June 22, 2005 with a closing date that was extended to September 1, 2005. Five proposals were received and two disqualified. IBM was ultimately awarded the contract in May of 2006.
On April 13 and 18, 2006, CGI made its concerns known regarding the alleged relationship between ASC and IBM. CGI sought confirmation from PWGSC that if IBM were to submit a proposal that it would be deemed a conflict of interest under clause A.15 of the RFP. PWGSC spoke with ASC and IBM and satisfied itself that they were not in a business relationship. CGI was then advised that there was no conflict and that the matter was closed.
The CITT determined that the Agreement on Internal Trade (AIT), the North American Free Trade Agreement (NAFTA) and the Agreement on Government Procurement (AGP) all applied to this procurement.
The CITT applied the test for reasonable apprehension of bias, which was "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the individual], whether consciously or unconsciously, would not decide fairly?" In applying the test, the CITT considered two issues: (1) the possibility that ASC could have influenced the evaluation committee in relation to the outcome of the evaluation process; and (2) if such possibility exists, the likelihood, in light of the evidence that was presented, that ASC did indeed influence the evaluation committee in relation to the outcome of the evaluation process.
ASC had listed IBM as one of its "affiliates" on its web site. CGI admitted that it was unaware of the exact nature of the business relationship between the two companies. PWGSC stated that, in speaking with the two companies, it had been advised that IBM personnel had received training in the use of ASC's proprietary software package, which was used for this solicitation. IBM had not involved ASC in the preparation of its bid.
The CITT found that ASC's role was clearly limited to providing technical support to the evaluation team. That fact had been clearly disclosed to all bidders in the RFP. While ASC's role was not to establish the terms of the RFP, the evaluation criteria or the actual evaluation of the proposals, the CITT was unable to conclude that there was no possibility that ASC could have influenced the outcome of the evaluation.
With respect to the likelihood that ASC actually influenced the evaluations, the CITT found that there was no evidence to suggest that this was the case. Further, there was no evidence that the Statement of Work, the evaluation criteria or the actual evaluation of the proposals was compromised through the inclusion of ASC personnel in the procurement process, or that IBM and ASC had inappropriately been in contact during the solicitation period. PWGSC had acted appropriately to ensure a fair and transparent solicitation by advising bidders of ASC's involvement, requiring that ASC sign a nondisclosure agreement, and investigating CGI's objection promptly.
The CITT determined that there was no apprehension of bias and that CGI's complaint was invalid. PWGSC was awarded its reasonable costs incurred in responding to the complaint in the amount of $1,000. (Date of Determination: 2006/08/14.)
Re A Complaint by The Alliance agricole internationale, made up of the Centre canadien d'étude et de coopération internationale, the Société de coopération pour le développement international and L'Union des producteurs agricoles-Développement international (CITT File No. PR-2006-003)
The CITT determined that it did not have jurisdiction to conduct an inquiry into this complaint by Alliance agricole internationale ("the Alliance") regarding a procurement initiated by the Canadian International Development Agency (CIDA). The procurement was for the provision of services for a project in support of the "Support for the Development of Agricultural Productions in Mali" project, for which a consortium ( formed by the Alliance and Tecsult Inc. (Tecsult)) made a bid.
The Alliance alleged that it was not treated fairly during the tendering process, the bid evaluation, and the award of the contract in respect of the solicitation. The Alliance suggested that, contrary to CIDA's directives and without the knowledge of the other bidders, CIDA had initiated an internal review and appeal procedure during the tendering process, aimed at reversing an initial decision made by CIDA regarding the ineligibility of the proposal of another consortium formed by SNC Lavalin Inc., Géomar International inc. and the Fédération des Agriculteurs et Agricultrices Francophones du Nouveau-Brunswick.
CIDA argued that the CITT did not have jurisdiction to decide the complaint because the Alliance was not a "potential supplier" as required by subsection 7(1) of the CITT Regulations. Section 31.1 of the CITT Act defines a "potential supplier" as "… a bidder or prospective bidder on a designated contract." In this case, since the actual bidder on the contract was a consortium made up of the Alliance and Tecsult, and the solicitation clearly stated that all business dealings would be between the Government and all members of the consortium, the CITT held that the complainant and the "bidder" were clearly not the same entity.
The CITT also found that one of the essential requirements to qualify as a "prospective bidder" is to have the technical capacity to perform the contract in question. Since the Alliance required Tecsult's expertise to some degree, the Tribunal held that it was not a prospective bidder according to the definition of "potential supplier" in the CITT Act. The CITT further stated that, in keeping with the spirit of the CITT Act, there must be concordance between the identity of the supplier and that of the complainant. Otherwise, there could be absurd situations where companies find themselves parties to a complaint against their will, or opt out and cause confusion over who should benefit from any remedy that is awarded.
The CITT also noted that it is easier to meet the definition of "interested party" in order to gain intervener status than it is to meet the definition of "potential supplier" in order to bring a complaint before the Tribunal.
Interestingly, one member of the CITT disagreed with the majority of the CITT and wrote a dissenting opinion, finding that the Alliance had standing as a "bidder or prospective bidder" and that there was nothing in the CITT Act to suggest that all members of a consortium were required to file the complaint together. The dissenting member also stated that it would be against the purpose and intent of the Act to prevent the Alliance from pursuing a remedy just because Tecsult was not participating.
However, a majority of the CITT dismissed the complaint on the basis that the Tribunal did not have jurisdiction. (Date of Determination: 2006/08/21.)
Re A Complaint by Computer Label Worldwide Co. Ltd. (CITT File No. PR-2006-023)
This was a complaint by Computer Label Worldwide Co. Ltd. (CLW), which the CITT did not accept because CLW did not have standing to bring the complaint.
CLW was a company from Thailand. Thailand is not a signatory to the North American Free Trade Agreement or the Agreement on Government Procurement. Therefore, CWL was ineligible to file a complaint with respect to a procurement that is covered by either agreement. Furthermore, the Agreement on Internal Trade (AIT) is a domestic agreement between Canada's federal government and its provincial and territorial governments. In order to have standing under the AIT, a complainant must be a "Canadian supplier", defined as a "supplier that has a place of business in Canada". "Place of business" is defined as "an establishment where a supplier conducts activities on a permanent basis that is clearly identified by name and accessible during normal business hours".
The CITT found that CLW was the bidder on this procurement and the complainant in this case. LabelNet Inc. had indicated that it represents CLW in Canada, however, CLW itself does not have a "place of business" in Canada. As such, CLW was not a "Canadian supplier" as defined by the AIT and did not have standing to initiate a complaint under that agreement. (Date of Determination: 2006/08/22.)
Partnering & Procurement Inc. v. Department of the Environment (CITT File No. PR-2006-015)
The Canadian International Trade Tribunal determined that this complaint by Partnering & Procurement Inc. ("PPI") against the Department of the Environment ("EC") was valid. The complaint concerned a procurement by EC for the provision of a project manager to assist EC in its Information Technology Service Management ("ITSM") Project.
PPI alleged that it was deprived of some parts of the Request for Proposal ("RFP") when EC declined PPI's request inquiring as to whether there had been any questions and answers submitted during the solicitation period. EC advised PPI that questions and answers were only circulated to the originators of the questions. EC explained that inquiries made by bidders were shared with all bidders in instances where they relate to a substantive component that would affect the fairness of the competition, which EC felt was not the case here.
The CITT held that the complaint was filed in a timely manner under section 6 of the Canadian International Trade Tribunal Act Regulations. PPI discovered its ground of complaint on May 11, 2006 when it was provided with the text of the questions and answers that were exchanged during the procurement process. The complaint was filed eight working days later.
With regard to the merit of PPI's complaint, the CITT found that EC's failure to make all bidders aware of the new requirements concerning the proposed project manager's experience violated Article 516(6) of the Agreement on Internal Trade ("AIT") and Article 1015(4)(d) of North American Free Trade Agreement ("NAFTA"). In responding to questions from unknown bidders, EC advised that the requirements of certain criteria in the RFP should be addressed by references to the "proposed project manager" or the "proposed resource." In the CITT's opinion, this consideration was a significant change to what could be considered by a simple reading of the original RFP. The CITT believed that EC's practice of withholding questions and answers treated PPI in a discriminatory manner. Those bidders who were not provided with the questions were disadvantaged without access to information that was relevant to the preparation of their proposals, compared with those who had access to the questions and answers.
The CITT recommended that EC modify its procurement policies to ensure that all potential suppliers participating in procurement processes by EC are provided with all pertinent information in respect of the requirement of its solicitations. In particular, this access should include any question and answer exchanges that take place between EC personnel and bidders in respect of the interpretation and application of procurement or contracting requirements. The CITT also awarded PPI $1,000 in costs incurred in the complaint process. However, because it was not clear whether PPI would have won the contract in question, PPI was not awarded any other compensation. (Date of Determination: 2006/08/22)
Excel Human Resources Inc. (operating as excelITR) v. Department of Public Works and Government Services (CITT File No. PR-2005-058)
This complaint by Excel Human Resources ("Excel") concerned a procurement by the Department of Public Works and Government Services Canada ("PWGSC") for informatics professional services relating to applications developed by Canada On-Line Services. The Request for Proposal ("RFP") stated that contracts would be awarded to the two bidders whose proposals had the "lowest cost per point". Excel alleged that PWGSC did not evaluate its proposal in accordance with the criteria in the RFP. Specifically, Excel first alleged that they should have received additional points on rated criteria R.19 and R.46, which awarded points for "Experience with Government of Canada Common Look and Feel and Accessibility standards". Second, Excel alleged that the procurement was unfair because PWGSC allowed two proposals by Spearhead in joint venture with other companies, which could have been used to achieve low costs for both joint venture bids.
On the first ground of complaint – that PWGSC misinterpreted and/or misapplied rated criteria R.19 and R.46 – the CITT held that PWGSC applied the proper evaluation requirements. PWGSC was correct when it required bidders to provide specific reference to experience with accessibility standards in lieu of simply referring to experience with more general standards, such as the World Wide Web Consortium (W3C) that Excel provided. The CITT held that the language of R.19 and R.54 was clear and unambiguous. They called for a demonstration of experience in respect of each of the two standards. It was reasonable for PWGSC to refuse a general reference to W3C experience as an indication of experience with accessibility standards.
On the second ground of complaint – that PWGSC improperly allowed bids from two joint ventures with a common party – the CITT held that the complaint was not valid. Excel failed to establish that the submission of bids by two joint ventures with a common partner were prohibited under the terms and conditions of the RFP. The CITT held that the intention of PWGSC could not be presumed; it must be found either explicitly in the letter of the RFP, or implicitly in the context under review. In the CITT's view, no provision in the RFP created a prohibition against the submission of bids by joint ventures with a common partner. The CITT heard no evidence to suggest that the submission of bids by two joint ventures with a common partner would result, per se, in a prejudice to the procurement process or the violation of any provision of the trade agreements.
The CITT thus held that Excel's complaint was not valid. Since the CITT believed the evaluators applied themselves adequately in evaluating the submission and applying the terms of the RFP, the CITT would not substitute its opinion for that of the evaluators. The CITT awarded costs of $2,400 to PWGSC. (Date of Determination: 2006/08/25)
