CITT: July 2007 Determinations
Re Les Logiciels Lingua Technologies Inc. (CITT File No. PR-2007-024)
This is a complaint filed by Les Logiciels Lingua Technologies Inc. (“Lingua”) regarding a Request for Proposal (“RFP”) by the Department of Public Works and Government Services (“PWGSC”) for services for the leasing and maintenance of a turnkey system for the translation of meteorological bulletins. Lingua alleges that it was not able to properly demonstrate its services because of the badly defined, ambiguous and inaccurate instructions given by PWGSC.
The Tribunal was of the opinion that the process followed by PWGSC was consistent with the process described in Annex DA-16 to the RFP, including the revised Appendix A-3 titled “Real-time Demonstrations and Trials”. The Tribunal was also of the opinion that revised Appendix A-3 contained sufficient information to enable the conduct and environment of the trials to be understood.
The Tribunal found that there was no reasonable indication that the procurement was not properly carried out and therefore decided not to initiate an inquiry into the complaint. (Date of Determination: July 5, 2007)
Re Acron Capability Engineering Inc. (CITT File No. PR-2006-046)
This was a complaint filed by Acron Capability Engineering Inc. (“Acron”) concerning a procurement by the Department of Public Works and Government Services (“PWGSC”) on behalf of the Department of National Defence (“DND”) for the provision of technical services in support of various simulation devices identified under the Canadian Advanced Synthetic Environment (“CASE”) program. The proposal included a mandatory requirement of proposing personnel who had participated in a military deployment . Acron requested that the Tribunal recommend the contract awarded be terminated and awarded instead to Acron. Acron also asked for compensation for lost profits and costs incurred in preparing the complaint.
Acron alleged that the winning bid should have been deemed non-compliant as it did not meet the mandatory requirement. Acron also alleged that PWGSC and an individual involved in the winning bid were in a conflict of interest creating an apprehension of bias.
PWGSC disputed Acron's narrow definition of “deployment” stating that the requirement was actually the broader meaning “involvement in deployment”. PWGSC also submitted that an individual's past involvement in a CASE program did not create a conflict of interest for the current Request for Procurement .
The Tribunal was of the opinion that a plain text reading of the RFP asked for at least one “deployment”, in the narrow sense as a mandatory requirement. T he Tribunal found that there was enough information on the record to make a decision without a hearing and found that the complaint was valid.
The Tribunal was not convinced that the individual's prior involvement in a CASE program or DND projects caused any conflict of interest or reasonable apprehension of bias in the evaluators. The Tribunal therefore found this ground of the complaint invalid.
Tribunal recommended that PWGSC allow the current contract to continue, but should the requirement continue to exist after the initial contract period, that PWGSC re-issue a clearly worded request. The Tribunal also awarded costs to Acron. (Date of Determination: July 10, 2007)
Ecosfera Inc. v. Department of the Environment (File No. PR-2007-004)
On April 10, 2007, Ecosfera Inc. (“Ecosfera”) filed a complaint with the Canadian International Trade Tribunal (“the Tribunal”) concerning a procurement by the Department of the Environment (“EC”) for the provision of consulting services for the development of an environmental scan of the environmental risks and regulatory gaps associated with the Federal House and Aboriginal Lands. According to EC, two of the three proposals received did not obtain the necessary pass mark for the “experience” and “knowledge” criteria and were not considered at the financial evaluation step.
Ecosfera made the following allegations:
- EC's explanations about Ecosfera's proposal were not detailed and were incomplete;
- EC did not provide Ecosfera with sufficient explanations by not disclosing the relative characteristics and advantages of the winning bidder, namely, those of Stratos Inc. (“Stratos”);
- The scoring system had taken into account rating factors that were not described in the RFP; and
- The explanations by the evaluators constituted a rationalization after the contract award was announced and were not intended to provide information about the marks lost by Ecosfera.
On the first ground, the Tribunal found that it was not bound by strict rules regarding admissibility of evidence and had jurisdiction to accord probative value to documents or information. EC filed affidavits in support of the GIR which Ecosfera sought to have proclaimed invalid and of no probative force. The Tribunal decided to accord the testimonies produced by EC credibility and probative value.
On the second ground, the Tribunal found that EC's arguments were reductionist and transpired by a narrow view. The primary purpose of the requirement set out in Article 1015(6)(b) of NAFTA is to provide transparency, while respecting the confidential nature of the content of all the bidders' proposals. The information given by the procuring entity should focus on the considerations of the evaluators, including the communication of the reasons why the proposal was not selected, the justification for taking those reasons into account and the approach used to examine them. The Tribunal further found that it is implicit that the requirement for transparency be met within a reasonable period of time so as not to compromise the exercise of recourse or restrict the range of remedies available in the event of a breach. The Tribunal also found that EC's disclosures and reasons were not sufficient. EC should have been able, without providing confidential commercial information, to describe generally the criteria for which Stratos received higher scores.
On the third ground, the Tribunal further found that one of the members of the evaluation team applied an evaluation criterion not specified in the bid documentation by taking the “experience” factor into account when applying the “knowledge” factor. As such, EC did not fulfil the requirements of relevant trade agreements regarding the use of evaluation criteria.
The Tribunal decided that Ecosfera's fourth ground was intrinsically related to the third ground and did not, by itself, constitute a separate ground.
As a remedy, the Tribunal recommended that EC re-evaluate Ecosfera's proposal using the “knowledge” criterion, without taking into account the “experience” factor, within 30 days. The Tribunal further recommended that, if Ecosfera's proposal obtained the necessary pass mark and proves to be the lowest-priced responsive bid, Ecosfera be compensated by an amount equal to the profit that it would have earned, had it been awarded the contract. In that event, the Tribunal recommended that the parties develop a joint proposal for compensation to be presented to the Tribunal within 60 days.
If Ecosfera's proposal did not obtain the necessary pass mark, the Tribunal also recommended that, upon request, EC provide Ecosfera with pertinent information concerning the reasons for not selecting its tender and the relative characteristics and advantages of the tender selected, in accordance with Article 1015(6)(b) of the North American Free Trade Agreement. The Tribunal awarded Ecosfera its reasonable costs in the amount of $1,000 to be paid by EC. (Date of Determination: July 11, 2007)
Re Information Builders (Canada) Inc. (CITT File No. PR-2007-009)
On April 17, 2007, Information Builders (Canada) Inc. (IBI) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11 of the Canadian International Trade Tribunal Act (CITT Act) concerning a procurement by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Indian Affairs and Northern Development (DIAND) for the provision of business intelligence software.
IBI alleged the following:
- There was a violation of the AIT, NAFTA and the Agreement on Government Procurement, as there was no basis for exercising limited tendering for this requirement; and
- That PWGSC incorrectly dismissed information that IBI provided when it challenged the Advance Contract Award Notice (ACAN) that announced this procurement and that, as a result, PWGSC incorrectly dismissed IBI's challenge of the ACAN.
The Tribunal determined that the complaint was valid. The Tribunal held that the onus is on the government institution to establish and justify the need to utilize limited tendering procedures. When it chooses this approach, it must have reasons that fall within the narrow parameters of the trade agreements that allow for recourse to a single source of supply. When this approach is followed, an ACAN must satisfy the substantive scrutiny required by the trade agreements in order to withstand a challenge. PWGSC moved with undue haste when it awarded the contract even though IBI's challenge was still current.
At first glance, the Tribunal was satisfied that PWGSC gave some consideration to IBI's challenge, as it acknowledged the challenge and engaged in an exchange with IBI. However, this exchange was ultimately inadequate and resulted in the denial of due process to IBI. The Tribunal considered that PWGSC and DIAND moved to deny IBI's challenge on the basis of information whose incompleteness is understandable, given that it was provided in response to an ACAN, not an RFP. The Tribunal said that a challenge to an ACAN by a potential supplier that views its alternative solution as being viable cannot be expected to contain the same level of detail as would its response to a competitive RFP.
As a remedy, the Tribunal recommended that the PWGSC conduct a competitive procurement process, in accordance with the applicable trade agreements, for the requirement that is the subject of this complaint, the Request for Proposal to be published no later than 90 days after the issuance of this determination. Should the competitive process result in a supplier other than Cognos Inc. prevailing, the Tribunal also recommended that the current contract with Cognos Inc. be terminated and a new contract be awarded.
The Tribunal also awards IBI its reasonable costs incurred in preparing and proceeding with the complaint. (Date of Determination: July 16, 2007)
Re Papp Plastics & Distribution Limited (CITT File No. PR-2007-028)
The Canadian International Trade Tribunal (the Tribunal) decided not to initiate an inquiry into the complaint dated July 19, 2007, relating to a Solicitation by the Department of Public Works and Government Services (PWGSC) for multiple operation boxes on behalf of the Department of National Defence (DND).
Papp Plastics & Distribution Limited (Papp) alleged the following:
- The Request for Proposal (RFP) was unfairly biased in favour of the product of the winning bidder, Pelican Products Inc. and unfairly discriminated against Papp; and
- PWGSC incorrectly accepted a bid from Pelican that was non-compliant with at least two mandatory requirements.
On the first ground, Papp based its allegations on the existence and contents of a March 2002 DND trial and evaluation report on possible barrack box replacements that it claimed it did not received until June 18, 2007. The Tribunal stated that any alleged wrongful behaviour that occurred during any pre-solicitation consultations and trials was not a subject into which the Tribunal can inquire, as these activities do not form part of the procurement process. The Tribunal noted that the report reviewed boxes that were on the market from 1999-2001 and that the report did not recommend the adoption of the specifications that are found in the RFP.
On the second ground, the Tribunal found that there was no basis for the Tribunal to find that PWGSC did not follow the evaluation criteria set out in the RFP. The complaint did not provide any evidence that the product proposed in the Pelican bid failed to meet the requirements of the procurement. (Date of Determination: July 30, 2007)
Re Mega-Technical Holdings Ltd. (CITT File No. PR-2007-027)
Mega-Technical Holdings Ltd.'s (Mega-Tech) submitted a complaint on July 16, 2007, and alleged that its proposal was improperly rejected as non-compliant. Mega-Tech thought its proposal was rejected due to the Department of Public Works and Government Services' (“PWGSC”) assessment of what Mega-Tech deemed to be sufficient to meet the requirement to provide a statement of compliance from an accredited laboratory.
The Tribunal decided not to initiate an inquiry into the complaint. The Tribunal did not consider that there was any evidence presented as to why Mega-Tech's proposal was rejected or why the winning bid was accepted. Although there was speculation on Mega-Tech's part, there was nothing to indicate why PWGSC rejected its proposal.
Therefore there was no reasonable indication that the procurement was not carried out in accordance with the North American Free Trade Agreement (NAFTA) and the Agreement on Internal Trade (AIT). The Tribunal noted that this determination did not preclude Mega-Tech from filing a complaint in relation to this ground if Mega-Tech did not agree with the results of the evaluation of its bid, once it had been provided with that information from PWGSC. (Date of Determination: July 25, 2007)
Re 1075773 Ontario Inc. Operating as CTC TrainCanada (CITT File No. PR-2007-026)
1075773 Ontario Inc., operating as CTC TrainCanada (CTC) alleged that there had been unfair business practices associated with a procurement by Public Works and Government Services Canada (“PWGSC”) and submitted the following grounds of complaint:
- CTC's proposal must have met the mandatory requirements because PWGSC requested clarification from CTC regarding its financial position on April 3, 2007;
- CTC scored its own bid and found it to be well above the minimum requirement of 593. PWGSC reduced this amount to facilitate the qualification of a supplier that would otherwise have not been able to make a submission, thereby breaching procedural fairness;
- CTC included all the required documentation with its proposal including a purportedly missing manual; and
- The price indicated in PWGSC's letter dated June 20, 2007, was not consistent with the price indicated in CTC's bid and no explanation for the discrepancy was provided.
The Tribunal decided not to initiate an inquiry into the complaint.
With regard to the first ground, the Canadian International Trade Tribunal (the Tribunal) found that there was nothing in the complaint to indicate that the methodology used by PWGSC was not consistent with what was outlined in the Request for Proposal (RFP).
With regard to the second ground, CTC should have become aware that the number of points required for the rated criteria section of the RFP had been reduced as of the date of publication of Amendment No. 3, March 12, 2007. A complainant has 10 working days from the date on which it first becomes aware of its ground of complaint to either object to the contracting authority or file a complaint with the Tribunal. The complaint was not filed until July 13, 2007, thus exceeding the time limit.
With respect to ground 3, PWGSC had found that 1 of 22 required manuals had not been submitted by CTC and therefore CTC's proposal was non-compliant. The Tribunal found that in the absence of compelling evidence that could unequivocally demonstrate that the proposal submitted was complete as stated by CTC, there was no basis to reasonably call into question PWGSC's finding and thus no reasonable indication that the procurement was not carried out properly.
With respect to ground 4, the Tribunal found that CTC should have been aware of the price discrepancy at the latest on June 27, 2007 when it received the first rejection letter from PWGSC dated June 20, 2007. Even had this ground of complaint been filed on time, the Tribunal would have found that the evidence submitted was insufficient to assess whether or not the procurement had been carried out in accordance with the Regulations. (Date of Determination: July 23, 2007)
