Procurement

• DECISION
• STATEMENT OF REASONS
• • DECISION

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IN THE MATTER OF a complaint filed under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47

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.

Hélène Nadeau
Hélène Nadeau
Secretary

1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations, ² 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.

2. The complaint in issue relates to a Request for Quotation (RFQ) by the Department of National Defence (DND) for transportation services for the shipment of 90 personal motor vehicles.

3. Giamac Inc. dba AutoRail Forwarders (Giamac) alleges that DND improperly provided the winning bidder with pricing information from a proposal that Giamac had submitted in response to a previous RFQ and for which it was the successful bidder. Giamac alleges that, as a result of its pricing information being made available to unsuccessful bidders in the previous RFQ process, those bidders had an unfair advantage over Giamac with respect to the current RFQ.

4. Paragraph 7(1)(c) of the Regulations requires that the Tribunal determine whether the information provided by the complainant discloses a reasonable indication that the procurement has not been carried out in accordance with whichever of Chapter Ten of the North American Free Trade Agreement, ³ Chapter Five of the Agreement on Internal Trade, ⁴ the Agreement on Government Procurement ⁵ or Chapter Kbis of the Canada-Chile Free Trade Agreement ⁶ applies. In this case, only the AIT applies. ⁷

5. Giamac’s complaint relates to two RFQs. The first RFQ, Reference No. DND-09/11474, had a due date for the receipt of bids of May 13, 2009. Giamac was awarded the contract. The second RFQ, Reference No. DND-09/15205, had a due date for the receipt of bids of June 17, 2009. According to the complaint, the unsuccessful bidders were informed of the results of the first RFQ one day prior to the bid closing date of the second RFQ. ⁸ According to Giamac, this gave a clear advantage to the winning bidder in the second RFQ process, as Giamac claims that the winning bidder would have been able to determine Giamac’s average price per car submitted in Giamac’s response to the first RFQ and use that amount as its benchmark for its response to the second RFQ and future RFQs.

6. Giamac submitted that it had won a number of prior contracts and had never received any information regarding the unsuccessful bidders, including any information relating to bid pricing. It argued that, had it been advised of the information to be given out at contract award, it may have chosen a different bidding strategy in preparation of a much larger, similar RFQ to be conducted by the Department of Public Works and Government Services in the near future.

7. The release by a procuring entity of the value of the winning bid is not contrary to the procurement provisions of the AIT. In fact, it is the usual practice of DND, as evidenced by the contract award notices easily accessible on MERX. ⁹ However, the release of bid price information of unsuccessful bidders is not a normal practice of procuring entities.

8. In this specific case, the Tribunal does not consider that Giamac has demonstrated that access to the total bid price from the previously awarded contract created any advantage to other bidders. According to the information in the complaint, the first RFQ was for transportation services for the shipment of 21 cars, ¹⁰ all to be shipped from various locations in Canada to different countries in Europe or vice versa. The second RFQ was for transportation services for the shipment of 90 cars, a significantly larger number of vehicles, to be shipped to different destinations, including two additional provinces in Canada, an additional country in Europe and the Middle East (one delivery). Given the differences between the two RFQs, including different destinations and differences in the frequency of deliveries, the Tribunal is of the view that knowing the total bid price of a winning bid would have exposed very little about the details of that bid.

9. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.

DECISION

10. Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.

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

² . S.O.R./93-602 [Regulations].

³ . North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA].

⁴ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].

⁵ . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].

⁶ . Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50 (entered into force 5 July 1997) [CCFTA].

⁷ . The Tribunal notes that, in accordance with Annex Kbis-01.1-4 to the CCFTA and Annex 1001.1b-2 to NAFTA, the services in question are excluded from coverage under those trade agreements. The Tribunal also notes that, in accordance with Canada’s Annex 4 to Appendix 1 to the AGP, the services are not offered for coverage by Canada.

⁸ . E-mail from Giamac to DND dated June 22, 2009.

⁹ . Canada’s electronic tendering system.

¹⁰ . In its complaint, Giamac included a copy of Reference No. DND-9/11474, which was for the transportation of 21 vehicles. In section 5F of its complaint, Giamac stated that it was for the transportation of 36 vehicles.