Procurement

Determinations

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JONCAS POSTEXPERTS, A DIVISION OF QUEBECOR WORLD INC., ON BEHALF OF THE CONSORTIUM COMPOSED OF JONCAS POSTEXPERTS, ENVELOPPE CONCEPT INC. AND THE DATA GROUP OF COMPANIES
v.
CANADA REVENUE AGENCY
File No. PR-2005-028

Order and reasons issued
Thursday, December 8, 2005

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TABLE OF CONTENTS

• ORDER OF THE TRIBUNAL
• STATEMENT OF REASONS
• • INTRODUCTION
  • TRIBUNAL’S DECISION

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IN THE MATTER OF a complaint filed by Joncas Postexperts, a Division of Quebecor World Inc., on behalf of the consortium composed of Joncas Postexperts, Enveloppe Concept Inc. and The Data Group of Companies, under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

AND FURTHER TO a decision to conduct an inquiry into the complaint under subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN
JONCAS POSTEXPERTS, A DIVISION OF QUEBECOR WORLD INC., ON BEHALF OF THE CONSORTIUM COMPOSED OF JONCAS POSTEXPERTS, ENVELOPPE CONCEPT INC. AND THE DATA GROUP OF COMPANIES	Complainant
AND
THE CANADA REVENUE AGENCY	Government Institution

ORDER OF THE TRIBUNAL

Pursuant to paragraph 10(c) of the Canadian International Trade Tribunal Procurement Inquiry Regulations, the Canadian International Trade Tribunal hereby dismisses the complaint.

Meriel V. M. Bradford
Meriel V. M. Bradford
Presiding Member

Zdenek Kvarda
Zdenek Kvarda
Member

James A. Ogilvy
James A. Ogilvy
Member

Hélène Nadeau
Hélène Nadeau
Secretary

Tribunal Members:	Meriel V. M. Bradford, Presiding Member
	Zdenek Kvarda, Member
	James A. Ogilvy, Member
Research Director:	Marie-France Dagenais
Senior Investigation Officer:	Cathy Turner
Counsel for the Tribunal:	Nick Covelli
Complainant:	Joncas Postexperts, a Division of Quebecor World Inc., on behalf of the consortium composed of Joncas Postexperts, Enveloppe Concept Inc. and The Data Group of Companies
Government Institution:	Canada Revenue Agency
Counsel for the Government Institution:	David M. Attwater

Please address all communications to:

The Secretary
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
15th Floor
Ottawa, Ontario
K1A 0G7

Telephone: (613) 993-3595
Fax: (613) 990-2439
E-mail: secretary@citt-tcce.gc.ca

STATEMENT OF REASONS

INTRODUCTION

1. On October 7, 2005, Joncas Postexperts, a Division of Quebecor World Inc., on behalf of the consortium composed of Joncas Postexperts, Enveloppe Concept Inc. and The Data Group of Companies (Joncas), filed a complaint with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ concerning a procurement (Solicitation No. 1000211799) by the Canada Revenue Agency (CRA) for the provision of printing products and services in support of the T1 Tax Program Strategic Management Initiative.

2. Joncas alleged that the CRA had incorrectly declared its proposal non-compliant and that the CRA had breached the applicable trade agreements due to a lack of transparency for its refusal to provide Joncas with a debriefing.

3. Joncas requested, as a remedy, that the Tribunal recommend that the CRA re-evaluate its proposal. If, after re-evaluation, Joncas were determined to be the successful bidder, it requested that it be awarded a firm three-year contract, effective immediately, or that it be compensated for the profits that it would have made during the term of the contract. In the alternative, Joncas requested that the Tribunal recommend that the contract with the current supplier be cancelled and that the solicitation process be restarted. Joncas also requested its bid preparation costs and its costs incurred in preparing and proceeding with the complaint. In addition, Joncas requested that the Tribunal order the postponement of the award of any contract in relation to the solicitation until the Tribunal determined the validity of the complaint.

4. On October 18, 2005, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations. ² The Tribunal did not issue a postponement of award order in accordance with subsection 30.13(3) of the CITT Act, since the evidence on file indicated that a contract had already been awarded; this was confirmed on October 31, 2005, when the CRA informed the Tribunal that a contract had been awarded to Relizon Canada Inc.

5. On November 10, 2005, the CRA filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules. ³ On November 22, 2005, Joncas filed its comments on the GIR.

6. The CRA submitted that a full elaboration of the findings of the technical evaluation team, and of their reasons, was provided to Joncas during the debriefing of September 16, 2005. It submitted that at no time, during or after the debriefing, did the technical evaluation team undertake to further review Joncas’s proposal or to reconsider its findings of Joncas’s non-compliance with the requirement of the solicitation. The CRA submitted that a government institution’s denial of relief to an objection need not be in writing and that constructive knowledge of denial of relief may be gleaned by acts or omissions of a government institution, without involving the written word.

7. The CRA submitted that Joncas obtained actual knowledge of the denial of its objection at the debriefing on September 16, 2005, and that, therefore, Joncas had until September 30, 2005, to file its complaint with the Tribunal. The CRA submitted that failing to accept, as final, verbal ⁴ information provided during a debriefing, or the mere act of requesting written confirmation of that information, does not erase the actual knowledge, supplied by that verbal information, of the CRA denying relief to Joncas. The CRA therefore contended that the complaint received by the Tribunal on October 7, 2005, is beyond the time allowed by section 6 of the Regulations.

8. In response to the CRA’s submission that the complaint is late, Joncas submitted that, during the debriefing on September 16, 2005, the CRA undertook to provide Joncas with its final decision in writing regarding its findings. When the CRA failed to deliver on such an undertaking, Joncas submitted that it sent a letter to the CRA reminding it of its undertaking. When the CRA did not deliver, Joncas submitted that it was under the impression that the CRA was reconsidering the RFP process and its determination following the debriefing session, hence the CRA’s delay in providing a written response. Joncas contended that it could not interpret the CRA’s failure to deliver on its undertaking to mean that its position was final. It submitted that the CRA cannot rely on its failure to follow through with an undertaking as the basis for rejecting the complaint. It further submitted that this would be patently unfair to government suppliers which rely on such government officials’ statements or undertakings.

TRIBUNAL’S DECISION

9. Section 6 of the Regulations sets out time limits for filing a complaint with the Tribunal. Subsection 6(1) provides that a complaint shall be filed with the Tribunal no 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) states: “A potential supplier who has made an objection regarding a procurement relating to a designated contract 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.”

10. Pursuant to paragraph 10(c) of the Regulations, the Tribunal may, at any time, order the dismissal of a complaint where the complaint is not filed within the time limits set out in the Regulations or in any rules made pursuant to subsection 39(1) of the CITT Act.

11. The CRA informed Joncas on September 13, 2005, that its proposal was found to be non-compliant, as it failed to include the résumé of the proposed liaison officer. On September 14, 2005, Joncas filed an objection with the CRA. According to the evidence on file, the CRA provided Joncas with a debriefing on September 16, 2005. The Tribunal is of the view that the main purpose of a debriefing is to provide the unsuccessful supplier with information concerning the reasons for not selecting its bid. Joncas does not dispute the fact that it was made aware, during the debriefing, of the CRA’s reasons for declaring its bid non-compliant.

12. Based on the evidence before it, the Tribunal is of the opinion that the CRA did not agree to conduct a further review of Joncas’s proposal or to reconsider its findings of non-compliance. It is also of the opinion that a denial of relief need not be in writing. The Tribunal therefore considers that Joncas became aware or reasonably should have become aware of the basis of its complaint on September 16, 2005, when it received the debriefing. Since Joncas did not file its complaint with the Tribunal until October 7, 2005, the Tribunal finds that the complaint was not filed within the required time limits established by subsection 6(2) of the Regulations. Therefore, pursuant to paragraph 10(c) of the Regulations, the complaint is dismissed.

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¹ . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].

² . S.O.R./93-602 [Regulations].

³ . S.O.R./91-499.

⁴ . The Tribunal notes that the context appears to have been an oral debriefing and that Joncas is seeking to make a distinction between the oral and written delivery of information. It therefore concludes that the intended meaning here is that given in the second definition of “verbal” in The Canadian Oxford Dictionary, “2 oral, not written”.