CITT: November 2006 Determinations
Re Ready John Inc. (CITT File No. PR-2006-030)
The Canadian International Trade Tribunal decided not to initiate an inquiry into the complaint by Ready John Inc. ("Ready John"). Ready John alleged that the Department of Public Works and Government Services ("PWGSC") awarded a standing offer to a non-compliant bidder, Hoyt's Septic Services Ltd. ("Hoyt"), contrary to the Request for a Standing Offer ("RFSO").
Ready John raised concerns on August 25, 2006. PWGSC responded to Ready John stating that Hoyt met the requirements of the RFSO. Ready John again raised this concern with PWGSC on October 5, 2006, and PWGSC rejected this concern on October 16, 2006. The CITT was of the view that the August 30, 2006 response by PWGSC constituted a denial of relief, and as such, Ready John should have lodged its complaint with the CITT ten working days after August 30, 2006 (i.e. no later than September 14, 2006).
Section 6(2) if the Canadian International Trade Procurement Inquiry Regulations (the Regulations) states that a complaint must be filed "within ten working days after the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier." As Ready John only filed its complaint with the CITT on October 26, 2006, the CITT found that the complaint was beyond the limit established by the Regulations . (Date of Determination: 2006/11/01)
Lengkeek Vessel Engineering Incorporated v. Department of Public Works and Government Services (CITT File No. PR-2006-022)
This was a complaint to the Canadian International Trade Tribunal by Lengkeek Vessel Engineering Incorporated ("LVE") with respect to the procurement of floating force protection booms for harbours in Halifax, Nova Scotia, and Esquimalt, British Columbia. LVE alleged that the Department of Public Works and Government Services ("PWGSC") improperly refused to award it a contract, even after it had met all the requirements for contract award listed in the first RFP. LVE also alleged that PWGSC disclosed its bid price for the first solicitation to a competitor, resulting in LVE not being treated fairly in the second solicitation. The CITT found that the complaint was valid in part.
The CITT first dealt with LVE's allegation that PWGSC had improperly refused to grant a contract under the first RFP. LVE had alleged that the physical test of the floating force protection booms, which had failed, was not required and a physical full-scale testing and engineering calculation was sufficient. The CITT held that this complaint was not filed in a timely manner and would not be considered. LVE had also alleged that despite having met the requirements listed in the first RFP, the PWGSC refused to grant the contract. The CITT considered whether LVE complied with the criteria of the first RFP concerning test requirements and found that in this case the PWGSC did properly apply the criteria of the RFP and its decision was valid.
The CITT then held that LVE had a valid complaint that PWGSC unfairly revealed the bidding price to a competitor. Article 504(3)(g) of the Agreement on Internal Trade ("AIT") prohibits the Federal Government from discriminating between suppliers of goods or services and cannot participate in "the unjustifiable exclusion of a supplier from tendering." Article 501 of the AIT stipulates that federal government procurement must be done in a way that ensures "equal access to procurement for all Canadian suppliers." The CITT held that the disclosure of information related to the bidding price resulted in prejudice to LVE. The CITT held that Article 504(3)(g) of the AIT had been breached.
Before a remedy would be determined, the CITT stated it was necessary to wait until LVE had been awarded a contract for the second solicitation. The CITT would then invite submissions from the parties in order to determine the extent of the prejudice that LVE had suffered. The CITT awarded LVE reasonable costs for the complaint which are to be paid by PWGSC. (Date of Determination: 2006/11/02)
Re Columbia Avionics, Inc. (CITT File No. PR-2006-032)
The Canadian International Trade Tribunal decided not to initiate an inquiry into the complaint made by Columbia Avionics, Inc. ("Columbia"). Columbia alleged that the Department of Public Works and Government Services ("PWGSC") improperly evaluated its financial proposal and awarded a contract to a non-compliant bidder.
Columbia had proposed two price options, one of which was lower than the contract award amount. The CITT found that there was insufficient evidence to substantiate Columbia's claim that it had proposed a lower total value than the successful contract. Further, the CITT found that there was insufficient evidence to conclude that PWGSC incorrectly evaluated the winning bidder's proposal in determining that it was compliant. (Date of Determination: 2006/11/27)
Canadian Beaver Information Technology Inc. v. Statistics Canada (CITT File No. PR-2006-020)
This was a complaint by the Canadian Beaver Information Technology Inc. ("CBIT") to the Canadian International Trade Tribunal with respect to a procurement by Statistics Canada for the provision of software training. CBIT alleged that Statistics Canada's requirements involving Microsoft certification and products were limiting to bidders and unfairly restricting the competitive process. In particular, with respect to mandatory requirement 7.5, CBIT argued that there was no need for the requirement that instructors be Microsoft Certified Trainers ("MCTs"). In response, Statistics Canada asserted, inter alia, that the specialized training outlined in the RFP was a legitimate operational requirement and that it was a mandatory requirement imposed and enforced by Microsoft that instructors of these courses be MCTs and that public courses be taught at a Microsoft Certified Partner Learning Solutions ("MCPLS") location.
The CITT held that the complaint was valid. The CITT assessed the three mandatory requirements, 7.1, 7.4 and 7.5 of the Request for Proposal ("RFP"), which were imposed by Statistics Canada. Requirement 7.1 of the RFP required that the supplier be an MCPLS. The CITT recognized the need for training as a legitimate operation requirement. However, the CITT held that the requirement that the training be provided by an MCPLS was not a legitimate operational requirement and breached Article 1009(2)(b) of the North American Free Trade Agreement ("NAFTA"), Article VIII(b) of the Agreement on Government Procurement ("AGP") and Article 504(3)(g) of the Agreement on Internal Trade ("AIT").
Requirement 7.4 in the RFP stated that a supplier must be able to deliver all Microsoft Official Curriculum courses to training centres. The CITT held that this excluded other suppliers that could provide equivalent courses. The CITT held that requirement 7.4 of the RFP was also a breach of Article 504(3)(g) of the AIT.
The CITT held that requirement 7.5 of the RFP, which states that instructors must be Microsoft Certified Trainers, was valid. The CITT noted that this requirement does not limit competition and is a necessary technical qualification.
In determining the remedy, the CITT considered that no contract had been awarded and no commitment given to a bidder. The CITT recommended that Statistics Canada start a new solicitation and that Statistics Canada remove 7.1 and 7.4 as mandatory requirements. The CITT awarded CBIT its reasonable costs in preparing its complaint. (Date of Determination: 2006/11/28)
