CITT: March 2007 Determinations
Paradise Company v. Department of Public Works and Government Services (CITT File No. PR-2006-034)
Paradise Company ("Paradise") filed a complaint with the Canadian International Trade Tribunal ("the CITT") regarding the procurement by the Department of Public Works and Government Services ("PWGSC") on behalf of the Department of National Defence ("DND") for the provision of women's and men's swimsuits.
The basis of Paradise's complaint is that PWGSC issued an amendment to the men's swimsuit specifications too near to the bid receipt date to allow Paradise to accommodate the specification changes in the men's swimsuit sample and consequently prevented bids from being submitted on time. Paradise also alleged that the timing of the amendment improperly favoured bidders with local manufacturers and discriminated against bidders with overseas subcontractors.
In response to inquiries regarding the specifications of the suits, PWGSC published amendment No. 001 on November 6, 2006. On November 10, 2006, Paradise requested that the due date for the receipt of bids be extended in order to take into account the changes to the specifications. PWGSC denied Paradise's request and did not extend the bid closing date.
Article 504 of the Agreement on Internal Trade ("AIT") prohibits the federal government from discriminating between suppliers of goods or services. Specifically, Article 504 (3)(c) provides that the timing of events in the tender process cannot prevent suppliers from submitting bids.
In the CITT's view, PWGSC did not provide sufficient time for potential suppliers to submit a compliant bid, especially for bidders with offshore suppliers. Despite requesting an extension, Paradise was denied this request and, accordingly, the restrictive timing requirements in the RFSO, following an amendment issued late in the bidding process, prevented Paradise from submitting a bid.
The CITT finds that PWGSC breached Article 504 of the AIT. The CITT recommends that PWGSC accept the samples and proposal submitted by Paradise as if they had been submitted on time; that PWGSC include Paradise's proposal and samples in the evaluation process with respect to the RFSO; that PWGSC confirm with all bidders that their prices are still valid and exclude from the evaluation process any bidder which does not maintain its prices; and that the standing offer be issued to the lowest-priced compliant proposal. (Date of Determination: 2007/03/06)
Re Quallium Corporation (CITT File No. PR-2006-047)
In this complaint, Quallium argued that the Department of Public Works and Government Services ("PWGSC") had evaluated its proposal using undisclosed and improper considerations. One of the requirements in the Request For Proposals was to set out the personnel's qualifications in a specified manner. Quallium described its resource's experience as "forensics", instead of the required "biometrics".
The Canadian International Trade Tribunal held that there is an onus on the bidder to strictly comply with the RFP, and to ensure its proposal is clear and understandable. Quallium had not properly discharged this onus. As such, the CITT decided not to initiate an inquiry into this complaint. (Date of Determination: 2007/03/07)
Re Ecosfera Inc. (CITT File No. PR-2006-048)
In this complaint, Ecosfera alleged several grounds against Environment Canada ("EC"). With respect to the first two grounds of complaint, the Canadian International Trade Tribunal noted that Ecosfera had applied for relief to EC, but EC had not yet denied Ecosfera its relief. A complainant has 10 working days from the date on which it becomes aware of the basis of a complaint to either apply for relief to the government department, or to file a complaint with the CITT. Thus the CITT found that those two complaints were premature. With respect to the remaining complaint, i.e., a conflict of interest between EC and a bidder, the CITT held that Ecosfera should have known about the potential conflict by the closing date of the Request For Proposals, which was more than 10 working days before the present complaint was made. Accordingly, the CITT decided not to initiate an inquiry into this complaint. (Date of Determination: 2007/03/08)
Re: The Access Information Agency Inc. (CITT File No. PR-2006-031)
This was a complaint by The Access Information Agency Inc. ("AIA") with respect to a procurement by Transport Canada for the procurement for the provision of access to information and privacy services under a two-year standing offer.
AIA made three complaints against Transport Canada. AIA alleged that: 1) Transport Canada improperly evaluated its bid in considering new scoring factors not provided for in the RFP; 2) Transport Canada provided unspecific and incomplete explanation in its evaluation of the AIA bid; and 3) Transport Canada did not provide AIA with the relative characteristics and advantages of the winning bids.
Regarding the first ground of complaint, AIA alleged that the criteria in the RFP covered general matters only and provided little or no guidance as to the methods of weighting and evaluating these criteria. AIA also argued that it was not reasonable for Transport Canada to expect bidders to understand that "proposed resources" was to be limited to "proposed employees", as stated by Transport Canada. Transport Canada maintained that it evaluated the technical requirements of the companies based on the two criteria stated in the RFP: the company's related experience and the extent of its related experience. In fact, while AIA's bid contained no information about these two criteria, the evaluation team gave it the benefit of the doubt, so AIA's score was actually higher than it should have been. In addition, Transport Canada argued that, in any event, the evaluation team did not penalize AIA for having proposed consultants who were not in its employ. If it had, AIA's score would have been even lower. Transport Canada also relied on the French version of the RFP to justify the criterion that "proposed resources" meant "people who are in the bidder's employ".
The CITT found that the interpretation Transport Canada gave to "proposed resources" was too restrictive. The CITT found that it was reasonable for AIA, in light of the ordinary meaning of "proposed resources" to propose human resources that were not yet in the company's employ. The CITT further said that Transport Canada's application of the French version of the language was not justified since the French version of the RFP was not made available to prospective bidders. The CITT also found that Transport Canada's claim that the criterion of employer-employee relationship did not influence the evaluation of AIA's was not credible given the annotations written by evaluation members on the bid. Thus, the first complaint was found to be valid.
Regarding the second ground for complaint, AIA argued that the explanations provided by Transport Canada with respect to their bid were incomplete and unspecific. Transport Canada responded that AIA never asked Transport Canada for pertinent information concerning the reasons why its bid was not selected. AIA only asked for the "breakdown of the results obtained."
The CITT found that Transport Canada's arguments in this regard were excessively narrow. The CITT found that it would have been possible for Transport Canada to provide more details of the reasons for refusing the request. There is no evidence that could justify the non-disclosure of this information. By refusing to provide detailed information, Transport Canada breached the letter and intent of the relevant provisions of the trade agreements. The CITT found this ground of complaint valid.
Regarding the third complaint, AIA alleged that, in not disclosing the information concerning the relative characteristics and advantages of the winning bid, Transport Canada did not provide sufficient explanations. Transport Canada claimed that it was never asked for this and some of the information was confidential.
The CITT found that Transport Canada could have discussed in a general way the characteristics of the proposals selected which gave them an advantage over AIA's proposal. The CITT therefore found that Transport Canada breached its requirements concerning disclosure. Thus, this third ground of complaint was also valid.
The CITT recommended that Transport Canada re-examine AIA's proposal and that Transport Canada fulfill the requirement to disclose information in terms of the degree of detail of the explanations provided to AIA concerning its proposal and the relative characteristics and advantages of the winning bid. (Date of Determination: March 16, 2007)
