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.
On May 12, 2017, Gyrfalcon Unmanned Aircraft Systems Inc. (Gyrfalcon) filed a complaint with the Tribunal regarding a Request for Proposal (RFP) (Solicitation No. 201704589/A) issued by the Royal Canadian Mounted Police (RCMP) on March 1, 2017, for the provision of tethered remotely piloted aircraft.
Gyrfalcon alleged that the technical requirements set out in the RFP were theoretical, and not technically feasible.
Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal decided not to conduct an inquiry into the complaint for the reasons that follow.
To initiate an inquiry, the Tribunal must be satisfied that (a) the complainant is a potential supplier, (b) that the complaint is in respect of a designated contract, (c) that the complaint discloses a reasonable indication that the procurement has not been carried out in accordance with the applicable trade agreements, and (d) that the complaint was filed within the prescribed time limits. In the present case, the Tribunal finds that the fourth criterion has not been met.
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 the grounds of its 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.
In its complaint, Gyrfalcon asserted that some of the requirements and technical specifications of the RFP were drafted in such a way that they were not technically feasible. Gyrfalcon did not contend, or provide any evidence to suggest, that it objected to the terms of the RFP or raised its concerns with the RCMP.
As such, the Tribunal can only conclude that Gyrfalcon became aware, or reasonably should have become aware, of its ground of complaint (i.e. that the technical specifications were not technically feasible) at the time that it was acquainting itself with the requirements of the RFP and preparing its proposal for submission. While Gyrfalcon did not state when it submitted its bid, at the very latest it did so by the bid closing date of March 31, 2017. As such, Gyrfalcon must have become aware of its ground of complaint regarding the drafting of the technical specifications by March 31, 2017, at the latest.
In previous cases, the Tribunal has found that, if a potential supplier believes that the criteria set out in an RFP are overly stringent or impossible to meet, it must file a complaint in a timely manner (i.e. within 10 working days of that moment in time). A complainant may not accumulate grievances only to present them after its bid is rejected.
Applying those findings to the case at hand, Gyrfalcon would have had, at the very latest, until April 14, 2017 (i.e. 10 working days after March 31, 2017), to either object to the RCMP or file a complaint with the Tribunal. As no objection was made to the RCMP until May 9, 2017, the Tribunal finds that Gyrfalcon did not comply with the timeliness requirement as set out in section 6 of the Regulations. Therefore, the Tribunal must conclude that Gyrfalcon’s complaint is late, and that it cannot inquire into the complaint.
In its complaint Gyrfalcon also stated that it was requesting a review of the technical bid response that was submitted. It is not clear if this was intended as an additional ground of complaint, or just a requested remedy. In any case, the Tribunal finds that this possible ground of complaint does not reveal any reasonable indication that the RCMP breached the trade agreements in evaluating Gyrfalcon’s technical bid.
Indeed, Gyrfalcon has not pointed to any evidence or provisions of its bid response which it believes were unfairly evaluated. Absent any evidence or further explanation, the Tribunal will not initiate an inquiry into this possible ground of complaint.
Before concluding, the Tribunal would like to commend the RCMP for referring the complainant to the Tribunal’s procurement inquiry process in its letter to Gyrfalcon of May 9, 2017. However, the Tribunal also urges government institutions to be cautious when advising potential complainants with regard to a specific date on which the 10-working-day timeline commences, as doing so could potentially lead to confusion and possible misunderstandings, especially considering the compounding timelines of subsection 6(2) of the Regulations.
. Gyrfalcon originally filed its complaint on May 11, 2017; however, the Tribunal requested that Gyrfalcon provide additional documentation so that it could evaluate Gyrfalcon’s complaint. That additional information was filed on May 12, 2017, and therefore the Tribunal considers that date to be the date on which the complaint was filed.
. APM Diesel 1992 Inc.(15 February 2012), PR-2011-052 (CITT) at para. 15; IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd., 2002 FCA 284 (CanLII) at paras. 18-21.
. For instance, in its letter of May 9, 2017, the RCMP stated that Gyrfalcon likely had 10 days from April 27, 2017, the day it discovered it was not the winning bidder, to file its complaint with the Tribunal. Given that Gyrfalcon’s complaint related to the drafting of the technical specifications in the RFP, that date was not accurate.