Procurement

Determinations

ECOSFERA INC.
File No. PR-2006-048

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TRANSLATION

BY FACSIMILE

March 8, 2007

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The Canadian International Trade Tribunal (the Tribunal) (Meriel V. M. Bradford, Presiding Member) has reviewed the complaint submitted on behalf of Ecosfera Inc. (Ecosfera) on March 2, 2007, and has decided not to initiate an inquiry into the complaint.

Your complaint contained many grounds: the Department of the Environment (Environment Canada) did not give Ecosfera sufficiently detailed explanations and these were very incomplete in regard to the reason for which your bid was not successful; Environment Canada did not reveal the characteristics and comparative advantages of the successful bid; one of the bidders, Stratos Inc (Stratos), benefited from information to which the other bidders were not privy; and Stratos and Environment Canada are in conflict of interest and it is reasonable to question the fairness of the solicitation process.

According to subsection 6(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (the Regulations), 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 of its ground of complaint to either object to the contracting authority or file a complaint with the Tribunal. If a complainant objects to the contracting authority in a timely manner, and has actual or constructive knowledge of the denial of relief, the complainant may then file a complaint with the Tribunal within 10 working days.

With respect to the grounds of complaint that Environment Canada did not give you detailed information concerning your bid and the winning company’s bid, Stratos, the Tribunal notes that you requested a debriefing from Environment Canada. The Tribunal therefore concludes that, since Ecosfera has not yet received a denial of relief from Environment Canada pursuant to subsection 6(2) of the Regulations, the first two grounds of complaint are premature.

With respect to Ecosfera’s last two allegations that Environment Canada and Stratos are in conflict of interest and that Stratos benefited from information to which the other bidders were not privy, the Tribunal notes that the evidence on the record (Tab 6) indicates that, in response to a question on the participation of Stratos, Environment Canada advised all bidders before the bids were filed that “there, [were] no restrictions on who [could] make an offer” [translation]. According to the Tribunal, since the complaint did not indicate a precise date on which this response was given, the last possible date for Environment Canada to inform all potential suppliers was the request for proposal closing date, i.e. January 12, 2007. By that time, Ecosfera should have clearly understood that Stratos was considered a potential supplier. Therefore, any complaint or objection should have been filed within 10 working days following that date, i.e. January 26, 2007, at the latest. Since the objection to Environment Canada was made on February 12, 2007, (Tab 4) and the complaint was filed with the Tribunal on March 2, 2007, the Tribunal does not have jurisdiction to conduct an inquiry into any ground of complaint concerning Stratos and its participation in the above-mentioned request for proposal process.

If Ecosfera wishes to file a new complaint concerning the first two grounds of complaint, it must do so within 10 working days after it receives actual denial of relief by Environment Canada. However, if Ecosfera has not received a debriefing by April 10, 2007, Ecosfera should assume denial of relief by Environment Canada and, therefore, will be entitled to file a complaint with the Tribunal within the prescribed deadlines. Ecosfera may then request that the documentation already on file with the Tribunal be joined to the new complaint.

Yours sincerely,

Susanne Grimes
Acting Secretary