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Procurement
OLSEN WEST INDUSTRIES LIMITED
File Nos. PR-2009-028 and
PR-2009-029
Decision made
Thursday, July 16, 2009
Decision and reasons issued
Friday, July 24, 2009
TABLE OF CONTENTS
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IN THE MATTER OF complaints filed under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47
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BY |
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OLSEN WEST INDUSTRIES LIMITED |
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AGAINST |
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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 complaints.
Ellen Fry
Ellen Fry
Presiding Member
Susanne Grimes
Susanne Grimes
Acting 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 complaints relate to two Requests for Proposals (RFPs) under a Supply Arrangement (Requirement No. 10-P2AF 3 and Requirement No. 09-P2EW 4 ) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the provision of technical services.
3. Olsen West Industries Limited (Olsen) alleged that PWGSC improperly amended the security requirements of the solicitation documents, thereby not allowing bidders a reasonable amount of time to update their firms’ and resources’ security clearances.
File No. PR-2009-028 (Requirement No. 10-P2AF)
4. On June 4, 2009, PWGSC issued the RFP for Requirement No. 10-P2AF under the Request for Supply Arrangement (RFSA) (Solicitation No. E60BQ-008SAD/A). The security requirement was for the contractor/bidder to possess, at the time of bid closing and at all times during the performance of the contract, a valid Secret Level II security clearance. On June 5, 2009, Olsen requested that PWGSC reconsider the security requirement as, it claimed, bidders with no previous requirement for a Secret clearance would be precluded from bidding if the requirement remained as stated. On June 10, 2009, PWGSC advised bidders that all contractors and personnel embedded with DND were required to have a secret clearance and be a citizen of Canada. The security clearance requirement was to be met either at the time of bid closing or at contract award. On June 16, 2009, Olsen requested information from PWGSC regarding the new security regulations. On June 19, 2009, PWGSC provided Olsen with the requested information. On June 29, 2009, bids closed. On July 10, 2009, Olsen filed its complaint with the Tribunal.
5. 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.” Subsection 6(2) provides that a potential supplier that 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.”
6. In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become 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.
7. The Tribunal considers that Olsen made its objection to PWGSC on June 5, 2009, which is within the time limit specified in subsection 6(2) of the Regulations. The Tribunal considers that Olsen had knowledge of PWGSC’s denial of relief on June 10, 2009. In order to meet the requirements of subsection 6(2), Olsen would have had to file its complaint with the Tribunal not later than June 24, 2009. Olsen filed its complaint with the Tribunal on July 10, 2009, which was beyond the prescribed time limit for filing the complaint. Consequently, the Tribunal considers that the complaint was filed in an untimely manner.
File No. PR-2009-029 (Requirement No 09-P2EW)
8. The RFSA (Solicitation No. E60BQ-008SAD/A) includes the following clause:
1.0 SECURITY REQUIREMENTS
1.1 In order to accommodate the diverse service requirements which Canada anticipates are to be contracted pursuant to SA’s [supply arrangements] during the next years, it was essential that various Security Requirements Check Lists (SRCLs) be established that would anticipate most security requirements and that the requirements of those security levels not adversely impact on the current efficiency of the SA contracting process.
9. On June 23, 2009, PWGSC issued the RFP for Requirement No. 09-P2EW under the RFSA (Solicitation No. E60BQ-008SAD/A). The security requirement was for the contractor/bidder to possess, at the time of bid closing and at all times during the performance of the contract, a valid Secret Level II security clearance. On June 25, 2009, Olsen advised PWGSC that it disagreed with the security requirement. Bids closed on July 9, 2009. On July 10, 2009, Olsen filed its complaint with the Tribunal.
10. Olsen submitted that PWGSC made a change to the security requirement that was not essential to the requirement at issue. It also submitted that PWGSC unilaterally, and without fair warning to qualified bidders, made a fundamental change to the terms of the Supply Arrangement.
11. 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 conducted in accordance with whichever of Chapter Ten of the North American Free Trade Agreement, 5 Chapter Five of the Agreement on Internal Trade, 6 the Agreement on Government Procurement 7 or Chapter Kbis of the Canada-Chile Free Trade Agreement 8 applies. In this case, all the trade agreements are applicable.
12. As the Tribunal has stated in the past, generally speaking, it is the prerogative of the procuring entity to define its own procurement needs. However, the Tribunal has also indicated that, “. . . while PWGSC has the right to establish the parameters of an RFP, it must do so reasonably. PWGSC does not have licence to establish conditions that are impossible to meet.” 9
13. Given that the RFSA advised bidders in 2008 that Canada anticipated diverse service requirements and that it was essential that various security levels be established that would anticipate most security requirements, the Tribunal finds that it was not unreasonable for PWGSC to require bidders to meet the requirement for a Secret Level II security clearance when it issued Requirement No. 09-P2EW. Consequently, the Tribunal finds that the complaint does not disclose a reasonable indication that the procurement was not conducted in accordance with the applicable trade agreements.
14. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaints and considers the matter closed.
DECISION
15. Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaints.
1 . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].
2 . S.O.R./93-602 [Regulations].
3 . File No. PR-2009-028.
4 . File No. PR-2009-029.
5 . 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).
6 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm>.
7 . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm>.
8 . 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).
9 . Re Complaint Filed by MTS Allstream Inc. (5 August 2005), PR-2004-061 (CITT) at para. 67.
