ADRM TECHNOLOGY CONSULTING GROUP CORP./RANDSTAD INTERIM
File No. PR-2012-002
Thursday, April 26, 2012
Friday, April 27, 2012
Tuesday, May 8, 2012
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.
ADRM TECHNOLOGY CONSULTING GROUP CORP./RANDSTAD INTERIM INC.
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.
The statement of reasons will be issued at a later date.
1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act1 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. EN869-122761/A) by the Department of Public Works and Government Services (PWGSC) for the provision of Task-based Informatics Professional Services (TBIPS) in the area of application management support for the Leave Information Management System application.
3. According to the complaint, ADRM Technology Consulting Group Corp. (ADRM TEC)/Randstad Interim Inc. (the joint venture) alleges that PWGSC improperly disqualified its proposal on the basis of criteria that were not included in the Request for Proposal (RFP). Though the complaint was submitted to the Tribunal under the name of the joint venture, it appears that ADRM TEC is advancing the complaint in what appears to be its individual capacity, as there is no independent evidence that Randstad Interim Inc. intends to participate in the complaint process.
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 conducted 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 Chapter Kbis of the Canada-Chile Free Trade Agreement6 or Chapter Fourteen of the Canada-Peru Free Trade Agreement7 or Chapter Fourteen of the Canada-Colombia Free Trade Agreement8 applies. In this case, all the foregoing trade agreements apply except the CCOFTA.
5. On February 15, 2012, PWGSC issued an RFP for the provision of TBIPS in the area of application management support for the Leave Information Management System application. PWGSC issued amendment Nos. 001, 002 and 003 on February 15, 17 and 20, 2012, respectively.
6. Section 17.1 of the “2003 (2011-05-16) Standard Instructions - Goods or Services - Competitive Requirements” (the Standard Instructions), incorporated into the RFP by reference, provides as follows:
17 Joint Venture
1. A joint venture is an association of two or more parties who combine their money, property, knowledge, expertise or other resources in a single joint business enterprise, sometimes referred to as a consortium, to bid together on a requirement. Bidders who bid as a joint venture must indicate clearly that it is a joint venture and provide the following information:
a. the name of each member of the joint venture;
b. the Procurement Business Number of each member of the joint venture;
c. the name of the representative of the joint venture, i.e. the member chosen by the other members to act on their behalf if applicable;
d. the name of the joint venture if applicable.
7. ADRM TEC submitted a bid in the name of the joint venture on March 6, 2012, the date of bid closing.
8. In an e-mail dated April 5, 2012, PWGSC wrote to ADRM TEC to inform it that a contract under the RFP had been awarded to Fujitsu Consulting (Canada) Inc. PWGSC further advised that ADRM TEC’s proposal had been found non-compliant, in that it did not meet the mandatory requirement set out in paragraph 17.1.c of the Standard Instructions. In particular, PWGSC pointed to ADRM TEC’s statement that its proposal was being submitted independently of its other joint venture member, Randstad Interim Inc.
9. On April 5, 2012, ADRM TEC sent two e-mails to PWGSC requesting further clarification of the reasons for which its proposal was considered non-compliant, insisting that the name of each member of the joint venture, the Procurement Business Number of the joint venture and the name of the representative of the joint venture had all been duly included in its proposal as required by section 17.1 of the Standard Instructions.
10. On April 10, 2012, ADRM TEC sent a follow-up e-mail to PWGSC requesting a response to its e-mails of April 5, 2012.
11. In an e-mail dated April 11, 2012, PWGSC reiterated that ADRM TEC’s proposal had been found non-compliant. PWGSC insisted that ADRM TEC’s statement that it was submitting its proposal “. . . independently of Randstad [Interim] Inc. . . .” clearly demonstrated that ADRM TEC had not been chosen by the other members of the joint venture to act on their behalf in submitting the proposal. As such, PWGSC maintained that ADRM TEC had not met the mandatory requirement of paragraph 17.1.c of the Standard Instructions.
12. ADRM TEC filed its complaint with the Tribunal on April 19, 2012.
13. There is no question that the complaint was filed on a timely basis, i.e. within 10 working days after the day on which the basis of the complaint became known or should have become known to the potential supplier.9
14. With respect to ADRM TEC’s allegation that PWGSC improperly declared its proposal non-compliant with the mandatory criteria outlined in the RFP, the Tribunal finds that the information provided in the complaint does not allow it to conclude that there is a reasonable indication that the procurement was not conducted in accordance with the applicable trade agreements.
15. In its complaint, ADRM TEC alleged that PWGSC had breached Article 506(6) of the AIT, which provides as follows:
The 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.
16. However, in the Tribunal’s view, the criteria that are challenged by ADRM TEC were indeed expressly identified in the tender documents. Paragraph 2.1(c) of the RFP states as follows: “The 2003 (2011-05-16) Standard Instructions – Goods or Services – Competitive Requirements are incorporated by reference into and form part of the bid solicitation.” Section 17.33 of the Standard Instructions provides as follows: “The bid . . . must be signed by all the members of the joint venture unless one member has been appointed to act on behalf of all members of the joint venture.”
17. Upon review of the complaint and the submitted materials, the Tribunal is unable to find any evidence or documentation to indicate that ADRM TEC’s joint venture partner, Randstad Interim Inc., supported, condoned or was in any way aware of ADRM TEC’s actions in purporting to submit a proposal on behalf of the joint venture.
18. Further, the “STATEMENT OF DISCLOSURE” included in “SECTION I - TECHNICAL BID”, “SECTION II - FINANCIAL BID” and “SECTION III - CERTIFICATIONS” of ADRM TEC’s proposal provides as follows: “ADRM TEC is submitting this proposal under its CJV TBIPS SA agreement but is doing so independently of Randstad Interim Inc. o/a Sapphire” [emphasis added].
19. In light of the absence of substantiating documentation from Randstad Interim Inc., combined with ADRM TEC’s own unilateral “Statement of Disclosure”, the Tribunal finds that there is no indication that Randstad Interim Inc. was aware of ADRM TEC’s intention to submit a proposal on behalf of the joint venture.
20. In the Tribunal’s view, without the demonstration of such knowledge or awareness and, in fact, considering an explicit declaration to the contrary, Randstad Interim Inc. cannot be deemed to have appointed ADRM TEC to act as its representative of the joint venture for the submission of its proposal. Following such reasoning, ADRM TEC was improperly characterized as the member chosen to represent the joint venture, and the mandatory requirement of paragraph 17.1.c of the Standard Instructions was therefore not met.
21. In its complaint, ADRM TEC claims that it “. . . was chosen by Randstad to act on behalf of the CJV when the CJV was awarded the TBIPS Supply Arrangement by PWGSC. ADRM TEC was the ‘Joint Venture (Lead) Member 1.’” However, other than this unilateral statement, there is no evidence in ADRM TEC’s proposal to that effect.
22. As the Tribunal has made clear in previous decisions, the potential supplier submitting a proposal bears the onus of ensuring that the proposal is compliant with all essential elements of a solicitation and that it has exercised the necessary due diligence to ensure its proposal is compliant in all respects.10
23. Further, if there is uncertainty surrounding the criteria to be met, it is incumbent upon the bidder to seek the necessary clarification.11 It was therefore the responsibility of ADRM TEC to ensure that its proposal was fully compliant with the mandatory requirements of the RFP and to seek clarifications as needed.
24. In its complaint, ADRM TEC also states that it “. . . finds it simply untenable that its proposal was deemed non compliant because it disclosed to the Crown that [it] was submitting a response independently, meaning no discussions [were] held with Randstad in the preparation of the proposal.”
25. As it has stated previously, the Tribunal will not substitute its judgment for that of the evaluators, unless those evaluators “. . . have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a proposal, 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.”12 There was no evidence of any such circumstances in this instance.
26. On the basis of the evidence submitted by ADRM TEC, the Tribunal finds that PWGSC’s decision that ADRM TEC’s proposal was non-compliant was fair and reasonable in the circumstances. As such, the Tribunal sees no basis on which to interfere with the conclusions reached by PWGSC.
27. Therefore, the Tribunal finds that the complaint does not disclose a reasonable indication that the procurement has not been conducted in accordance with the applicable trade agreements.
28. In light of the above, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.
29. 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).
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>.
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). Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.
7 . Free Trade Agreement between Canada and the Republic of Peru, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/peru-perou/chapter-chapitre-14.aspx> (entered into force 1 August 2009).
8 . Free Trade Agreement between Canada and the Republic of Colombia, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/colombia-colombie/anc-colombia-toc-tdm-can-colombie.aspx> (entered into force 15 August 2011) [CCOFTA].
9 . Subsection 6(1) of the Regulations.
10 . See Re Complaint Filed by Integrated Procurement Technologies, Inc. (14 April 2008), PR-2008-007 (CITT).
11 . See Re Complaint Filed by Info-Electronics H P Systems Inc. (2 August 2006), PR-2006-012 (CITT).
12 . Re Complaint Filed by MTS Allstream Inc. (3 February 2009), PR-2008-033 (CITT) at para. 26.
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