Procurement

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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
• • GROUND 1
  • GROUND 2
  • GROUND 3
  • DECISION

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

BY

THE CORPORATE RESEARCH GROUP LTD., OPERATING AS CRG CONSULTING

AGAINST

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 complaint.

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 complaint relates to a procurement (Solicitation No. 20-08-6004) by the Department of Indian Affairs and Northern Development (DIAND) for the provision of professional services relating to aboriginal community infrastructure. The procurement was for the provision of services in support of six related work streams.

3. The Corporate Research Group Ltd., operating as CRG Consulting (CRG), alleges the following:

GROUND 1

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, ⁴ Chapter Five of the Agreement on Internal Trade, ⁵ the Agreement on Government Procurement ⁶ or Chapter Kbis of the Canada-Chile Free Trade Agreement ⁷ applies. In this case, all four trade agreements apply.

5. On March 9, 2009, DIAND issued a solicitation for the provision of professional services relating to aboriginal community infrastructure. On December 17, 2009, DIAND advised CRG that its proposals were not compliant with sub-requirement 2.3 of mandatory requirement M2.

6. Mandatory requirement M2, “Proposed Resources”, reads as follows:

Within its Proposal, the Bidder MUST provide evidence that it possesses a qualified human resource complement capable of providing Community Infrastructure Professional Services for [the particular stream], as described in the RFP.

7. Sub-requirement 2.3 reads as follows:

Bidders may also propose additional resource(s) category(ies) as they deem necessary to complete the work described in the RFP. Should the bidder choose to do so, using Table 4.1 Pricing Schedule, in the Instructions to the Bidders, they must disclose the name(s) of the additional resource(s) category(ies), the names of the resource(s) they are proposing, the per diem rate for the additional resource(s) category(ies), and provide a detailed CV for each resource(s), listing the knowledge, experience, skills and abilities of each proposed resource in relation to the Department’s requirements as stated in this RFP, and the Stream that the bidder has submitted their proposal.

[Emphasis added]

8. In its proposals, in relation to sub-requirement 2.3, CRG provided a list of names of people along with what appears to be their areas of expertise; it did not include a per diem rate for the individuals or a detailed CV for each resource.

9. According to CRG, sub-requirement 2.3 was optional, and it did not propose additional resources; rather, it displayed a table to demonstrate its ability and strength. It further stated that it did not provide pricing using Table 4.1, as it was not providing “. . . additional resource(s) category(ies) as [it deemed] necessary to complete the work . . . .”

10. According to CRG, DIAND took the position that the inclusion of such a list of available professional resources submitted with its proposals without the categories, names, rates, etc., rendered its proposals non-compliant. Also according to CRG, DIAND took the position that, although sub-requirement 2.3 contained the word “may” at the beginning and was therefore optional, because it contained the word “must” further on, the proposals needed to provide that additional information.

11. CRG submitted that DIAND’s position ignores the statutory construction of the clause as a whole and ignores critical condition precedent language that is embedded in the section. It further submitted that there was an onus on DIAND to refrain from arbitrarily applying the declaration of “non-responsive”, but rather to seek clarification from the bidders on these value-added resources.

12. Article 506(6) of the AIT provides that “[t]he tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria.”

13. Article 1015(4)(a) of NAFTA provides that “to be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation”. ⁸

14. In Info-Electronics H P Systems Inc., ⁹ the Tribunal stated as follows:

23. In previous decisions, the Tribunal has made it clear that suppliers bear the onus to respond to and meet the criteria established in a solicitation. The Tribunal has also made it clear that the bidder bears the onus to seek clarification before submitting an offer. It has also stated that it will not substitute its judgment for that of the evaluators unless the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way.

[Footnotes omitted]

15. In paragraph 22 of its complaint, CRG states that it “. . . actually debated what to do with Section 2.3 . . . . We felt this was the most appropriate section in which to insert our value-added table.” To the extent that CRG admits that it was uncertain as to the scope or meaning of sub-requirement 2.3, it then had the onus to seek clarification before submitting an offer. Moreover, in including a list of additional resources for sub-requirement 2.3, CRG did not indicate that its intention was not to propose additional resources that it deemed necessary to complete the work.

16. The Tribunal finds that sub-requirement 2.3 is clear. If a bidder proposed resources in relation to sub-requirement 2.3, it was obligated to provide the per diem rate and a detailed CV for each of the resources. The Tribunal notes that CRG included a list of additional resources for sub-requirement 2.3 without providing the required details.

17. The Tribunal further notes that there is no evidence to indicate that DIAND did not apply itself in the evaluation of CRG’s proposals, that it ignored vital information or that it wrongly interpreted the scope of the requirement. There is also no evidence to indicate that DIAND based its evaluation on undisclosed criteria or conducted the evaluation in a procedurally unfair way.

18. To the contrary, the Tribunal is of the view that, in the circumstances, it was reasonable for DIAND to conclude that, by providing, in relation to sub-requirement 2.3, a list of the names of people along with what appears to be their areas of expertise, CRG was proposing additional resources categories that it deemed necessary to complete the work described in the solicitation. In evaluating CRG’s proposals, it was thus also reasonable for DIAND to conclude that, having chosen to propose resources in relation to sub-requirement 2.3, CRG failed to provide the additional information that became mandatory in that event. Therefore, the Tribunal considers that it would not be appropriate to substitute its judgment for that of the evaluators in this matter.

19. For these reasons, the Tribunal finds that this ground of complaint does not disclose a reasonable indication that the procurement was not conducted in accordance with the applicable trade agreements.

GROUND 2

20. 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.”

21. 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.

22. On March 9, 2009, DIAND issued the solicitation. On May 20, 2009, CRG submitted its proposals. On June 1, 2009, bids closed. On December 17, 2009, DIAND advised CRG that its proposals were all deemed non-compliant, as they did not meet sub-requirement 2.3 of mandatory requirement M2.

23. According to CRG, it was the poorly written solicitation document that led directly to a misinterpretation of the mandatory evaluation criterion that resulted in its proposals being declared non-compliant.

24. As is stated by the Federal Court of Appeal in IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd., ¹⁰ there is an onus on potential suppliers to challenge problems in the procurement process when they become aware of them (or when they reasonably should have become aware of them). Of particular relevance are the following excerpts from that decision:

. . . potential suppliers are required not to wait for the attribution of a contract before filing any complaint they might have with respect to the process. They are expected to keep a constant vigil and to react as soon as they become aware or reasonably should have become aware of a flaw in the process.

. . .

If Hewlett-Packard was of the view that such a clear answer contradicted the procurement requirements, it should have filed a complaint then and there. It chose, rather, to ignore answer 95, to adopt a wait-and-see attitude and to make its challenge once the procurement process was over. This is precisely the type of attitude that the procurement process and Regulations seek to discourage.

25. As stated earlier, the Tribunal considers sub-requirement 2.3 to be clear. However, if CRG believed that there was a problem with the way in which the sub-requirement was worded, the Tribunal is of the view that CRG became aware, or reasonably should have become aware, of the basis of this ground of complaint when it reviewed the tender documents. Although this would likely have occurred earlier, the latest that it could have occurred was on June 1, 2009, when bids closed.

26. CRG made no objection to DIAND regarding the wording of the solicitation either during the bidding period or within 10 working days of bid closing. CRG filed its complaint on this ground on January 19, 2010, 160 working days later. Consequently, the Tribunal considers that the complaint, on this ground, was not filed within the prescribed time limit.

GROUND 3

27. According to the complaint, the solicitation closed on May 20, 2009, but a subsequent amendment, on May 26, 2009, re-opened the solicitation until May 28, 2009, and another amendment, on May 29, 2009, once again re-opened the solicitation until its final closing date of June 1, 2009.

28. CRG submitted that the closing and subsequent re-opening of the solicitation created a potential apprehension of bias by allowing late bidders further chances to submit bids or to make corrections or amendments to proposals already submitted, thereby allowing DIAND to award the work to preferred suppliers.

29. The Tribunal considers that CRG became aware, or reasonably should have become aware, of the basis of this ground of complaint on May 26, 2009, when the first amendment, which re-opened an otherwise closed solicitation, was issued.

30. Again, according to the Regulations, CRG had 10 working days to object to such procedures. ¹¹ CRG did not make an objection to DIAND regarding this process. CRG filed its complaint on this ground on January 19, 2010, 165 working days later. Consequently, the Tribunal considers that the complaint on this ground was not filed within the prescribed time limit.

DECISION

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

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

² . S.O.R./93-602 [Regulations].

³ . CRG submitted proposals for all six work streams requested in the solicitation. DIAND declared its proposals non-compliant with the same mandatory requirement in all the streams.

⁴ . 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].

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

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

⁷ . 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]. Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.

⁸ . Similar provisions are found in Article XIII(4)(a) of the AGP and Article Kbis-10(1)(a) of the CCFTA.

⁹ . Re Complaint Filed by Info-Electronics H P Systems Inc. (2 August 2006), PR-2006-012 (CITT).

¹⁰ . 2002 FCA 284 (CanLII).

¹¹ . See para. 20.