File No. PR-2014-064
Tuesday, March 10, 2015
Tuesday, March 17, 2015
Monday, March 23, 2015
TABLE OF CONTENTS
IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.).
THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
Pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal has decided not to conduct an inquiry into the complaint.
The statement of reasons will be issued at a later date.
- Subsection 30.11(1) of the Canadian International Trade Tribunal Act provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations, a potential supplier may file a complaint with the Canadian International Trade Tribunal (the Tribunal) concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint. Subsection 30.13(1) of the CITT Act provides that, subject to the Regulations, after the Tribunal determines that a complaint complies with subsection 30.11(2) of the CITT Act, it shall decide whether to conduct an inquiry into the complaint.
- Sani Sport filed a complaint with the Tribunal regarding a Request for Proposal (RFP) (Solicitation No. W0100-155053/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the provision of three ozone sanitizers.
- Sani Sport alleges that the technical specifications for the solicitation were biased in favour of one company, thereby preventing other potential suppliers, including Sani Sport, from submitting a compliant bid. Specifically, Sani Sport’s first ground of complaint pertains to the minimum depth dimension requirement for the ozone sanitizers, which, it asserts, allowed for only one compliant bid. Sani Sport’s second ground of complaint is that PWGSC erred in refusing to accept certain technical certifications as equivalent to the Canadian Standards Association (CSA) certification that was required in the RFP, which Sani Sport claims is an unusual requirement for this type of solicitation for DND.
- Sani Sport asked the Tribunal to recommend that PWGSC issue a new solicitation for the designated contract without the offending requirements.
- Subsection 6(1) of the Regulations provides that a complaint shall be filed with the Tribunal “. . . not later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier.”
- Subsection 6(2) of the Regulations states that a potential supplier who has made an objection to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal “. . . within 10 working days after the day on which the potential supplier has actual or constructive knowledge of 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.”
- In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become aware, of its ground of complaint to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days of having actual or constructive knowledge of the denial of relief by the government institution.
- The Tribunal carefully considered the information and supporting documents filed with the present complaint in order to determine whether the complaint meets the time limits prescribed by the Regulations.
- PWGSC issued the RFP on December 19, 2014. Section 2 of Part 1 of the RFP clearly stated that the required ozone sanitizers “. . . must have: . . . at least a 33 cubic feet load capacity . . . ” and “. . . [m]eet . . . CSA Standard SPE-1000-09 . . . .”
- On January 14, 2015, Mr. Tom Reeves, an authorized representative of Sani Sport, wrote to PWGSC and stated that some requirements limited the RFP to only one supplier. Mr. Reeves went on to ask several questions, including the following: whether PWGSC would accept alternative certifications as equivalent to the CSA standard; the size specifications of the cabinet, not mentioned in the RFP, and whether a single or double cabinet was required; and whether bidders could submit pricing for different cabinet sizes.
- On January 16, 2015, PWGSC answered that the proposed alternative certifications were not acceptable and that they “. . . must be minimum CSA or ULC approved.” Furthermore, PWGSC indicated that only a single cabinet was required (per location) that fell within the specified ranges of dimensions, which included a minimum depth of 27 inches. PWGSC also noted that as follows: “. . . you may supply different size cabinets . . . but they must fall within the specifications/dimensions noted to be considered compliant.”
- On January 23, 2015, PWGSC published the same answers to Mr. Reeves’ questions in an amendment to the RFP.
- The bidding period closed at 2 p.m. on January 29, 2015. Sani Sport did submit a bid which was determined to be non-compliant because it was inadvertently sent to the wrong address. This fact, however, was not raised as a ground of complaint in this matter.
- On February 2, 2015, the contract was awarded.
- According to the information filed with the complaint, Mr. Reeves called PWGSC on February 3, 2015, to enquire about the contract award and stated that the RFP had only allowed for one compliant bid, i.e. that of the successful bidder.
- On February 4, 2015, Mr. Steve Silver, President of Sani Sport, wrote to PWGSC stating concerns about the CSA certification requirement and the minimum depth dimension specification, and alleging that the latter had precluded Sani Sport (and all potential suppliers with the exception of the successful bidder) from submitting a compliant bid. Sani Sport’s position is that, even if its bid had not been filed late, a fact which it does not contest, it would still have been determined to be non-compliant with the offending requirements.
- On February 6, 2015, PWGSC replied to Mr. Silver, stating that there had been no indication that its initial response was unsatisfactory to Sani Sport and that, “[o]nce the bidding period has closed, we are unfortunately unable to change the requirement.”
- The parties exchanged several e-mails between February 9 and 27, 2015. On February 24, 2015, PWGSC explained that, prior to the award of the contract, it had considered the matter resolved, given that Mr. Reeves had replied “thank you” to PWGSC’s original response of January 16, 2015, and that there was no further communication from Sani Sport regarding the grounds of complaint until after the contract award, at which point PWGSC was unable to do anything about it.
- On February 24, 2015, Mr. Silver responded that simply because Mr. Reeves had replied “thank you” did not mean that PWGSC’s response of January 16, 2015, had been satisfactory. On the contrary, he explained, as follows, that Sani Sport intentionally delayed making a further complaint until after the award of contract: “. . . we determined that we would further complain if the solicitation was awarded to the intended supplier. That was our intent all along and we are now carrying that through” [emphasis added].
- The e-mail correspondence filed in support of the complaint clearly shows that, although the matter was escalated within PWGSC, Sani Sport was again denied relief in the last e-mail in the chain from PWGSC to Mr. Silver, dated February 27, 2015.
- Sani Sport filed its complaint with the Tribunal on March 10, 2015.
- Based on the information and supporting documentation filed with the complaint, it is clear that Sani Sport first became aware of its ground of complaint regarding the minimum depth dimension requirement on January 16, 2015, i.e. when PWGSC responded to Mr. Reeves’ question about the size of the cabinet for the ozone sanitizers. The initial RFP, issued on December 19, 2014, referred to the load capacity of the ozone sanitizers but did not specify any dimension requirements (as stated above, the dimension requirements were later published in an amendment to the RFP on January 23, 2015).
- The CSA certification requirement was expressly stated in the initial RFP. Although it is unclear from the information filed with the complaint when this ground of complaint became known to Sani Sport, it was no later than January 14, 2015, when Mr. Reeves’ asked PWGSC if it would accept certain other certifications as equivalent to the CSA certification. PWGSC’s response of January 16, 2015, clearly stated that the proposed alternative certifications were not acceptable.
- Although Mr. Reeves apparently replied “thank you” to PWGSC following its response of January 16, 2015, a copy of his reply was not provided to the Tribunal with the complaint. However, the Tribunal accepts as fact that Mr. Reeves sent PWGSC an e-mail stating “thank you” sometime between January 16, 2015, and the award of the contract on February 2, 2015, on the basis that this reply was specifically referred to by PWGSC and Mr. Silver in subsequent e-mails, which were filed with the complaint.
- According to Sani Sport, it was not appropriate for PWGSC to assume that its response of January 16, 2015, was satisfactory simply because Mr. Reeves replied “thank you”. However, subsections 6(1) and (2) of the Regulations are clear on the steps and actions that need to be taken in fairly short order once the basis of the complaint becomes known or reasonably should become known to the potential supplier.
- While there is no “one size fits all approach” to the form or content of an objection notice and each case must be reviewed on its own facts, there is nonetheless a requirement that an objection be made. It is up to the Tribunal to determine whether the form and content of the objection is sufficient. On the basis of the facts of this matter, the Tribunal finds that it was reasonable for PWGSC to believe that no further action was required after having received Mr. Reeves’ “thank you” response, which did not include any qualifications or objections regarding the minimum dimension requirement or the CSA certification requirement. The Tribunal further finds that Mr. Reeves’ response cannot somehow serve to keep the complaint alive.
- Indeed, the e-mail correspondence shows that Sani Sport did not object to the minimum depth dimension requirement until February 4, 2015, when Mr. Silver e-mailed PWGSC. This objection was made 13 working days after the ground of complaint became known to Sani Sport, i.e. January 16, 2015. Therefore, it fell outside the prescribed time limits under subsection 6(2) of the Regulations, and the Tribunal finds accordingly.
- With respect to the CSA certification requirement, the Tribunal finds that PWGSC provided a clear denial of relief regarding this ground of complaint on January 16, 2015. However, Sani Sport did not pursue the matter with PWGSC until after the contract was awarded and waited over a month to file its complaint with the Tribunal, which was well beyond the time limit of 10 working days prescribed by subsection 6(2) of the Regulations.
- Furthermore, an e-mail dated February 24, 2015, from Mr. Silver to PWGSC clearly shows that Sani Sport deliberately waited until after the contract was awarded to “further complain” to PWGSC and eventually file its complaint regarding both allegations with the Tribunal. This approach goes against well-established jurisprudence. As stated by the Federal Court of Appeal in IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd., “[i]n procurement matters, time is of the essence. . . . Therefore, potential suppliers are required not to wait for the attribution of a contract before filing any complaint they might have with respect to the process. They are expected to keep a constant vigil and to react as soon as they become aware or reasonably should have become aware of a flaw in the process.”
- In addition, where there has been a clear denial of relief in relation to an objection made by a complainant, it is not open to the complainant to keep the issue alive and delay final disposition of the matter through successive reiterations of essentially the same concerns.
- By taking a “wait and see” approach after receiving PWGSC’s response of January 16, 2015, Sani Sport missed the window for advancing its complaint in a timely manner and, therefore, lost its opportunity for recourse to the Tribunal by failing to comply with the time limits established by the Regulations.
- In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.
- Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.
. R.S.C., 1985, c. 47 (4th Supp.) [CITT Act].
. S.O.R./93-602 [Regulations].
. As confirmed by Mr. Steve Silver in a letter to the Tribunal dated March 6, 2015.
. The Tribunal notes that Mr. Reeves forwarded PWGSC’s response to Mr. Silver that same day.
. On March 4, 2015, the Tribunal received Sani Sport’s complaint form and supporting documents. The Tribunal requested, pursuant to subsection 30.12(2) of the CITT Act, additional information and documents relevant to the complaint. Sani Form provided the requested information and documents on March 9 and 10, 2015. Therefore, the complaint is considered to have been filed on March 10, 2015.
. CGI Information Systems and Management Consultants Inc. v. Canada Post Corporation and Innovapost Inc. (14 October 2014), PR-2014-016 and PR-2014-021 (CITT) at para. 63.
. Although Mr. Reeves called PWGSC to enquire about the contract award on February 3, 2015, it is not clear from the information filed with the complaint whether he made a specific objection to the minimum depth dimension requirement at that time. However, even if he did, the objection would still have been late, i.e. 12 working days after the basis of the complaint regarding this requirement became known to Sani Sport.
. 2002 FCA 284 (CanLII) at paras. 18, 20.
. Stonehaven Productions Inc. (16 March 2012), PR-2011-060 (CITT) at para. 11; Weir Canada Inc. (6 September 2012), PR-2012-014 (CITT) at para. 12.