This complaint was filed by Nedco, a division of Rexel Canada Electrical Inc. (Nedco) regarding a procurement conducted by the Department of Public Works and Government Services Canada (PWGSC). However, the CITT decided not to initiate an inquiry into this complaint on the basis that it was time-barred.
In its complaint, Nedco alleged that PWGSC improperly declared its bid non-compliant. Specifically, it alleged that PWGSC did not accept its pricing structure. Nedco was advised that a standing offer had been awarded to another bidder on August 9, 2006. Nedco made an objection that same day and requested that it be given the opportunity to resubmit its prices. PWGSC responded the same day that it could not accept new pricing.
The CITT found that Nedco became aware of the basis for its complaint on August 9, 2006, and was required to file its complaint with the CITT within 10 working days (i.e. by August 23, 2006) pursuant to subsection 6(2) of the CITT Regulations. Nedco provided the Tribunal with partial information on August 30, 2006, and the Tribunal advised Nedco on September 1, 2006 that its complaint could not be considered properly filed because it did not contain the information required by subsection 30.12(2) of the CITT Act. The complaint was properly filed on September 7, 2006 when Nedco sent the additional information. However, since the full complaint was filed after the time limit established by the CITT Regulations, it could not be accepted for inquiry. (Date of Determination: 2006/09/12.)
Re Canyon Contracting. (CITT File No. PR-2006-016)
Canyon Contracting alleged that Parks Canada improperly made changes to the technical specifications of a tender on which Canyon had bid after the contract was awarded to another party. The Canadian International Trade Tribunal found that the complaint was valid.
The tender involved a solicitation for support posts and signs. Bidders were required to describe two specific types of posts in their bids. At a bidders conference, when asked if different sized posts could be used, Parks Canada replied "The contractor can use other posts, however, all support posts must have an engineer stamp of approval." After the contract was awarded to Pattison, Parks Canada accepted Pattison's suggestion that a different type of support post would also comply with the guidelines and standards, although it was not one of the two types of posts which were mandatory specifications in the original tender document.
Parks Canada argued that its answer at the bidders conference amounted to a change in the mandatory specifications, and therefore Pattison's bid was compliant. In the alternative, they argued that the post-contract technical change was simply a matter of the administration of the contract. The CITT rejected both of these arguments. It found that the conference answer did not change the mandatory specifications, and only allowed for some variance in the size of the posts. There was a procedure in the tender document for changing mandatory specifications, but Parks Canada did not follow that procedure. Also, since the technical changes were significant and contradicted the mandatory specifications, the change could not legitimately be characterized as an activity under the administration of a contract. The CITT stated that if the new type of post was found to be preferable, Parks Canada should have re-tendered the project.
In setting out an appropriate remedy, the CITT considered the fact that Parks Canada's conduct created a good deal of prejudice to the integrity of the government procurement system. Canyon estimated its profits to be 10% of its bid price, therefore the CITT awarded Canyon half of 10% of the contract value, to compensate for Canyon's lost opportunity to profit from the contract. (Date of Determination: 2006/09/19)
