AIR DYNAMICS CO. LTD.
File No. PR-2015-063
Friday, March 11, 2016
Decision and reasons issued
Thursday, March 17, 2016
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 (4th Supp.), c. 47
AIR DYNAMICS CO. LTD.
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.
- Subsection 30.11(1) of the Canadian International Trade Tribunal Act (the CITT Act) provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations (the 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 that the Tribunal 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.
- This complaint by Air Dynamics Co. Ltd. (Air Dynamics) concerns a Request for Proposal (RFP) (Solicitation No. W0103-16CH03/A) by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of National Defence, for the provision of a laser wire marker. The contract was awarded to Rock Networks.
- Air Dynamics alleged that PWGSC improperly found that its bid did not meet all the mandatory requirements set out in the RFP. Air Dynamics argued that its bid was fully compliant, and requested that its bid be re-evaluated and that the resulting contract be awarded to it.
- The Tribunal has reviewed the complaint filed by Air Dynamics. The Tribunal finds that the complaint was not submitted within the time frame specified in subsection 6(1) of the Regulations. Consequently, the Tribunal cannot conduct an inquiry into this complaint.
- The RFP was issued on December 11, 2015, and bidding closed on January 27, 2016.
- On February 17, 2016, PWGSC informed Air Dynamics that it would not be awarded a contract, as the technical limitations of the laser wire marker listed in Air Dynamics’ bid (the product in issue) did not meet the mandatory requirements of the RFP.
- Air Dynamics replied to PWGSC on February 17, 2016, and advised PWGSC that the specification sheet for the product in issue contained a typographical error made by the manufacturer on its data sheet. Air Dynamics provided PWGSC with a corrected version of the specifications for the product in issue, which it argued demonstrated that its bid did in fact meet the mandatory requirements of the RFP.
- Also on February 17, 2016, PWGSC advised Air Dynamics that it could not accept such information after the bid closing date, as it would constitute impermissible bid repair.
- On February 18, 2016, Air Dynamics advised PWGSC that it would be contesting the bid award.
- On February 26, 2016, Air Dynamics filed a Procurement Complaint Form with the Tribunal. However, Air Dynamics did not provide any supporting documents or attachments. In particular, Air Dynamics did not provide copies of the RFP in issue, its bid response, or any correspondence regarding the bid award.
- On February 29, 2016, the Tribunal requested that Air Dynamics provide the following documents in support of its complaint, as required by subsection 30.11(2) of the CITT Act:
- a copy of Solicitation No. W0103-16CH03/A, as well as all related tender documents (such as amendments);
- a copy of Air Dynamics’ complete offer for Solicitation No. W0103-16CH03/A;
- a copy of all correspondence (e-mail or other), and a description of all telephone conversations (including dates), as applicable, between Air Dynamics and PWGSC in relation to Solicitation No. W0103-16CH03/A; and
- a clear and detailed statement of facts and arguments supporting the complaint.
The Tribunal noted that the complaint could not be considered to have been filed until such necessary information had been provided. In addition, the Tribunal reminded Air Dynamics of the strict timeline for filing a complaint prescribed by section 6 of the Regulations, and urged Air Dynamics to provide the information in question as soon as possible.
- On March 9, 2016, Air Dynamics filed the supporting documentation requested by the Tribunal in its letter of February 29, 2016, and the Tribunal acknowledged receipt of the complaint.
- 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.” In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have been 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 after it has actual or constructive knowledge of the denial of relief by the government institution.
- While not clear on the face of the Procurement Complaint Form submitted by Air Dynamics, the e‑mail correspondence exchanged between Air Dynamics and PWGSC makes it clear that Air Dynamics discovered the grounds of its complaint, objected to PWGSC, and received a denial of relief from PWGSC all on February 17, 2016. However, Air Dynamics did not file its completed complaint with the Tribunal until March 9, 2016, which was more than 10 days after Air Dynamics had actual knowledge of the denial of relief by PWGSC.
- Although Air Dynamics filed a Procurement Complaint Form on February 26, 2016, which was within the 10-day limitation set out in the Regulations, such a form, in and of itself, does not constitute a properly documented complaint unless accompanied by the necessary supporting documentation. To this end, subsection 30.11(2) of the CITT Act specifically states that:
(2) A complaint must
(a) be in writing;
(b) identify the complainant, the designated contract concerned and the government institution that awarded or proposed to award the contract;
(c) contain a clear and detailed statement of the substantive and factual grounds of the complaint;
(d) state the form of relief requested;
(e) set out the address of the complainant to which notices and other communications respecting the complaint may be sent;
(f) include all information and documents relevant to the complaint that are in the complainant’s possession;
(g) be accompanied by any additional information and documents required by the rules; and
(h) be accompanied by the fees required by the regulations.
Moreover, in its letter of February 29, 2016, the Tribunal clearly listed the documents that Air Dynamics was required to file in order for its complaint to be deemed complete, and urged Air Dynamics to file these documents “as soon as possible” so as to ensure compliance with the strict timeline set out in the Regulations.
- The filing of such supporting documents is not a mere technicality or administrative requirement. In deciding whether or not to conduct an inquiry, the Tribunal must decide whether the complaint demonstrates a reasonable indication that a breach of the trade agreements has occurred. In order to do so, the Tribunal must be able to review the facts on which the complaint is premised. The documentation required by the CITT Act, and requested by the Tribunal in its letter of February 29, 2016, was therefore essential for the Tribunal to be able to properly review the complaint.
- As the party initiating a complaint, it is incumbent upon the complainant to provide all necessary documentation for the Tribunal to properly understand the matters at issue, and the factual underpinnings of the complaint. Despite having been prompted by the Tribunal, Air Dynamics failed to do so within the 10‑day time period set out in subsection 6(1) of the Regulations. As such, the complaint is late, and the Tribunal may not conduct an inquiry.
- Notwithstanding the foregoing, even if the complaint had been timely, the Tribunal notes that the complaint itself did not disclose a reasonable indication that the relevant trade agreements had been breached.
- During the procurement process, bids must be evaluated on the basis of the information which is included at the time of bid closing. The Tribunal has repeatedly held that acceptance of new information after bid closing constitutes bid repair, which is an unacceptable modification to submitted bids. As such, evaluators may not consider any new information submitted after bid closing.
- In the current case, the specifications for the product in issue which were submitted with Air Dynamics’ bid did not satisfy the mandatory requirements. While it is unfortunate that such information seems to have been the result of a typographical error, Air Dynamics’ attempt to correct this information after bid closing would undoubtedly constitute new information meant to alter or repair its original bid.
- Moreover, while Air Dynamics asserted that it stated at page 11 of its bid that its proposal met all of the mandatory requirements, this statement was clearly at odds with the content of its bid, and the product specifications in particular. Given that the product specifications submitted with its bid established, erroneously or not, that the product in issue did not meet the mandatory requirements, the Tribunal finds that there is no reasonable indication that PWGSC breached the applicable trade agreements by concluding that Air Dynamics’ bid did not meet the mandatory requirements of the RFP.
- 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.).
. Air Dynamics’ complaint form was received at 4:05 p.m. EST on Friday, February 26, 2016. As such, the Tribunal’s letter requesting additional information was not sent to Air Dynamics until the following Monday, February 29, 2016.
. See, for instance, Maxxam Analytics Inc. (20 September 2007), PR-2007-017 (CITT) at para. 37; NOTRA Environmental Services Inc. (16 December 1997), PR-97-027 (CITT) and Bell Mobility (14 July 2004), PR-2004-004 (CITT).