CITT: October 2006 Determinations
Re The Access Information Agency Inc. (CITT File No. PR-2006-027)
The Canadian International Trade Tribunal decided not to initiate an inquiry into the complaint filed by The Access Information Agency Inc. ("AIA") against the Department of Public Works and Government Services ("PWGSC"). AIA alleged that: (1) Transport Canada ("TC") evaluated the mandatory information set out in the Request for Proposal (RFP) in a discriminatory and careless manner; (2) the evaluation committee did not establish an adequate rating scale or evaluation criteria; (3) the bidders did not possess enough information to prepare their submissions; (4) the maximum allowable cost in the RFP suggested there was discrimination in terms of application and evaluation; (5) the number of successful bidders suggested it was impossible to respond to the RFP; (6) the RFP did not require a written statement with regard to former public servants nor to divulge potential conflicts; and (7) TC failed to deal with AIA's requests for a debriefing in a timely manner.
The CITT found that: (1) AIA did not provide any evidence that there was discriminatory treatment or inappropriate evaluation of the identification criteria; (2) there was no evidence to support this claim, and bidders are responsible for making enquiries when they believe that the criteria are not clear; (3) there was insufficient evidence to support this claim, and bidders are responsible for requesting clarifications in a timely manner; (4) AIA did not provide any reasonable supporting evidence; (5) that only two bidders were successful does not show there was a breach of the provisions of the RFP; (6) the applicable trade agreements do not contain any obligation regarding the inclusion of a
provision dealing with former public servants and none of the alleged facts shows that there could have been a breach of the conflict of interest provisions of the RFP; and (7) the time limit cited was not outside the norm and this allegation was premature. Accordingly, the CITT concluded that there was no reasonable indication the procurement had not been carried out in accordance with the applicable trade agreements. (Date of Determination: 2006/10/06.)
Re The Language Studio Inc. (CITT File no. PR-2006-028)
The Canadian International Trade Tribunal decided not to initiate an inquiry into the complaint filed by The Language Studio Inc. against the Department of Public Works and Government Services ("PWGSC"). The Language Studio Inc. made the following allegations: (1) PWGSC allowed a monopoly situation to occur by awarding standing offers to only one supplier; (2) there was contradicting and misleading information in the solicitation document; and (3) PWGSC made an error in the final calculation of The Language Studio Inc.'s overall mark and, although this was corrected it was sufficient grounds to request a review of all the calculations.
The CITT found that: (1) The Language Studio Inc. knew or ought to have known the basis of its complaint by July 10, 2006 (the bid closing date), at the latest but did not file its complaint until October 5, 2006 and therefore was outside the prescribed time limit; (2) this ground of complaint was also outside of the prescribed time limit; (3) there was insufficient evidence in the complaint to substantiate the claim that a review of all bidders' calculations was necessary. Accordingly, the CITT concluded that there was no reasonable indication that the procurement had not been carried out in accordance with the applicable trade agreements. (Date of Determination: 2006/10/12.)
Re Pelican Products, Inc. (Canada) (CITT File No. PR-2006-019)
Pelican Products filed a complaint alleging that the Department of Public Works and Government Services ("PWGSC") accepted a bid which was not compliant with the Request for Proposal ("RFP"). The Canadian International Trade Tribunal determined that the complaint was not valid.
The RFP involved a request for supply storage and transport cases to be used by the Department of National Defence (DND). The RFP specified that the bids should be equivalent to listed Pelican products. DND awarded the contract to Amcan Technologies, even though their cases were not the same size as the Pelican cases specified in the RFP. Pelican argued that the cases could not be equivalent if they were a different size to those specified, and as a result, the contract awarded to Amcan was improper.
DND argued that equivalence does not have to be determined according to size alone, but other factors such as form, fit, function and quality are equally valid bases of equivalence. With the use of customized foam inserts, the Amcan cases would have the same function and internal size as the Pelican products. The CITT noted that it will only interfere with procurement decisions which are unreasonable, which was not the case here. DND's decision was supported by a tenable explanation. DND had applied themselves in evaluating the bids, had not ignored vital information, had not wrongly interpreted the scope of the requirement, did not base their award on undisclosed information, and had acted in a procedurally fair manner. (Date of Determination: 2006/10/17)
Re Kerr Norton (1021076 Ontario Inc.) (CITT File No. PR-2006-029)
The Canadian International Trade Tribunal decided not to initiate an inquiry into the complaint submitted by Kerr Norton against the Department of Public Works and Government Services ("PWGSC"). Kerr Norton alleged that PWGSC improperly declared its bid non-compliant, and more specifically, that the bid had included the necessary documentation to support the mandatory requirement regarding yield testing results.
The Request for a Standing Offer ("RFSO") indicated that the Offeror must indicate the page yield for the re-manufactured toner cartridges offered and that detailed documentation must accompany the offer to support it. Kerr Norton did not include this information in its bid on the basis of the "confidential nature of the proprietary information". At no time during the solicitation process did it contact PWGSC about these concerns and all but one of the forms submitted with the complaint were dated after the closing bid. As a result, the CITT found no reasonable indication that PWGSC improperly declared Kerr Norton's bid non-compliant. (Date of Determination: 2006/10/20.)
