GREENLINE SYSTEMS CANADA ULC
File No. PR-2013-049

Decision made
Friday, April 4, 2014

Decision issued
Friday, April 4, 2014

Reasons issued
Friday, April 11, 2014

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • SUMMARY OF THE COMPLAINT
  • BACKGROUND INFORMATION
  • TRIBUNAL ANALYSIS
  • DECISION

 

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

BY

GREENLINE SYSTEMS CANADA ULC

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

DECISION

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.

Pasquale Michaele Saroli
Pasquale Michaele Saroli
Presiding Member

Dominique Laporte
Dominique Laporte
Secretary

The statement of reasons will be issued at a later date.

STATEMENT OF REASONS

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.

SUMMARY OF THE COMPLAINT

2. The complaint relates to a Request for a Standing Offer (RFSO) (Solicitation No. W7707-145677/A), which was issued on August 27, 2013, by the Department of Public Works and Government Services (PWGSC) on behalf of Defence Research and Development Canada (DRDC) – Atlantic, an agency of the Department of National Defence, for the provision of maritime information analysis, research and tool development services.
3. Greenline Systems Canada ULC (Greenline) alleged that DRDC improperly evaluated its technical proposal in order to increase the chances that the preferred vendor would win. More specifically, Greenline alleged that DRDC did not properly appreciate all aspects of its proposal and should have checked its references in order to obtain more information regarding its qualifications and expertise. In addition, Greenline questioned the validity of certain mandatory criteria and aspects of DRDC’s evaluation.
4. As a remedy, Greenline requested that its bid be re-evaluated and that, if it qualifies, its financial proposal be factored into the overall score. If its overall score is high enough, Greenline asks that it “. . . be awarded a similar services contract with DRDC to perform their desired work effort.”^[3]

BACKGROUND INFORMATION

5. On August 27, 2013, PWGSC issued an RFSO for maritime information analysis, research and tool development with a bid closing date of September 18, 2013, which was later amended to September 25, 2013. Greenline submitted its bid on September 25, 2013.
6. It is not clear when PWGSC first informed Greenline that its bid had been rejected. However, on January 14, 2014, PWGSC sent Greenline a spreadsheet containing the technical evaluation performed on Greenline’s proposal. On that date, it also sent Greenline a formal letter, dated December 30, 2013, indicating that its bid did not conform to the mandatory requirement of obtaining 70 percent of the points for each rated criterion in the technical portion of the solicitation and of achieving an overall score of at least 75 percent in the technical portion.
7. On January 15, 2014, Greenline indicated its objections to the technical evaluation by providing its comments on each evaluation in a spreadsheet. On that date, it also asked for a formal debrief regarding the evaluation.
8. E-mails between Greenline and PWGSC indicate that a teleconference debrief was scheduled to occur on March 18, 2014. However, in its complaint and “Statement of the Factual Grounds of the Complaint”, Greenline indicates that the debrief conference call was held on March 25, 2014.
9. On March 18, 2014, Greenline e-mailed PWGSC thanking it for its time during a telephone call earlier that day, confirming the outcome of that telephone call and expressing its displeasure with that outcome. This e-mail states that Greenline had been told during the call that “. . . DRDC/PWGSC will not answer our attached questions formally in writing but . . . would discuss them verbally on a conference call so we might understand how we scored as a ‘learning exercise’ for future bids.” Greenline expresses its displeasure with this outcome, stating “. . . that is not what we asked for, nor are we interested in a call that coaches us on building RFP responses. Therefore, we ended the call as your and our expectations were not being met and we could not close this gap.”
10. On April 1, 2014, Greenline filed, with the Tribunal, all documentation necessary for its complaint to meet the requirements of subsection 30.11(2) of the CITT Act.

TRIBUNAL ANALYSIS

11. Upon receipt of a complaint which complies with subsection 30.11(2) of the CITT Act, the Tribunal must decide whether the following four conditions have been met before an inquiry can be conducted:

    (i)   whether the complaint was filed within the time limits prescribed by section 6 of the Regulations;

    (ii)  whether the complainant is an actual or potential supplier;

    (iii) whether the complaint is in respect of a designated contract; and

    (iv) whether the information provided by the complainant discloses a reasonable indication that the procurement has not been conducted in accordance with whichever of Chapter 10 of the North American Free Trade Agreement,^[4] Chapter Five of the Agreement on Internal Trade,^[5] the Agreement on Government Procurement,^[6] Chapter Kbis of the Canada-Chile Free Trade Agreement,^[7] Chapter 14 of the Canada-Peru Free Trade Agreement,^[8] Chapter 14 of the Canada-Colombia Free Trade Agreement^[9] or Chapter 16 of the Canada-Panama Free Trade Agreement^[10] applies.

12. In the Tribunal’s view, the first three conditions have been met: the complaint was filed within the prescribed time limits; the complainant is an actual bidder; and the complaint is in respect of a contract covered by, at least, the AIT.
13. The Tribunal’s analysis will therefore focus on the last condition, namely, whether the complaint discloses a reasonable indication of a breach of the AIT. In order to show a reasonable indication of a breach, Greenline must establish a prima facie case by submitting arguments and evidence disclosing a possible breach of the AIT.^[11]
14. As discussed in more detail below, Greenline claims that DRDC improperly evaluated its technical proposal in order to increase the chances that the preferred vendor would win.
15. Article 506(6) of the AIT is relevant to Greenline’s complaint and provides as follows:

In evaluating tenders, a Party may take into account not only the submitted price but also quality, quantity, transition costs, delivery, servicing, the capacity of the supplier to meet the requirements of the procurement and any other criteria directly related to the procurement that are consistent with Article 504. 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. Section 2.1 of Part 4 of the RFSO provides that, in order to be considered responsive, bids must “. . . meet all the mandatory requirements of the solicitation” and “. . . obtain the required minimum of 70 percent of the points for each of the rated criteria in the Technical Portion specified in the solicitation and achieve an overall score of at least 75 percent in the technical portion.” It further warns that bids not meeting these requirements will be given no further consideration.
17. Annex “E” of the RFSO sets out the evaluation criteria for the technical portion as follows:

1. TECHNICAL PROPOSAL (600 points max/420 points min i.e.70%)

(a) Demonstrated understanding of:

• scope of potential tasks, (100 points)
• objectives or broader objectives that the tasks will contribute towards (200 points)
• potential difficulties that may be encountered (100 points)

(b) Demonstrated experience in the:

• Design, (50 points)
• Development, (50 points)
• implementation, and (50 points)
• Maintenance of system components including web services and databases. (50 points)

2. PERSONNEL (800 points max/560 points min i.e.70%)

(a) Demonstrated experience of bidder on similar contracts, including experience of project manager, experience of key personnel, and experience in managing similar R&D projects. (150 points)

(b) Key personnel capability - demonstrated relevant experience, qualifications and competence proven by similar and/or related work in the following areas:

a) Expertise/knowledge in XML (50 points)

b) Expertise/knowledge in database design (50 points)

c) Expertise/knowledge in database implementation (50 points)

d) Expertise/knowledge in geospatial databases (50 points)

(e.g., for supporting a GIS)

e) Expertise/knowledge in virtual globe implementations (50 points)

f) Expertise/knowledge in metadata tagging techniques (50 points)

g) Expertise/knowledge in Java, C++, IDL, and VB (100 points)

h) Expertise/knowledge in web service development (100 points)

i) Parallel computing/distributed computing (50 points)

j) Expertise/knowledge in MDA data analysis (100 points)

18. To support its complaint, Greenline provided a spreadsheet containing objections to many of the point deductions received from DRDC. These objections alleged that DRDC failed to appreciate all aspects of Greenline’s proposal, suggested that DRDC failed to check Greenline’s references, challenged the validity of the mandatory requirements of the RFSO and questioned DRDC’s evaluation.
19. The key question before the Tribunal is whether Greenline’s complaint discloses a reasonable indication that DRDC did not evaluate its proposal in accordance with the mandatory criteria in the tender documentation. In the Tribunal’s view, Greenline’s complaint does not.
20. Greenline has not provided any arguments or evidence to support its allegation that DRDC sought to increase the chances that the preferred vendor would win. In this connection, the Tribunal has consistently held that mere allegations are insufficient to substantiate a claim.^[12]
21. Nor has Greenline provided arguments or evidence sufficient to disclose a reasonable indication that DRDC improperly evaluated its proposal by ignoring vital information provided in the bid, by improperly interpreting the scope of a requirement, by basing its evaluation on undisclosed criteria or by otherwise failing to conduct the evaluation in a procedurally fair way. While Greenline may disagree with DRDC’s conclusions, its complaint neither clearly identifies the errors made by DRDC in its evaluation (e.g. the information in Greenline’s proposal that DRDC had purportedly failed to consider) nor refers to specific evidence substantiating its objections.
22. With regard to Greenline’s suggestion that DRDC failed to check its references, it is well established in jurisprudence that the onus is on bidders to demonstrate how their bids meet the mandatory criteria published in the solicitation documents^[13] and that government institutions are not obligated to ask questions to clarify whether bids meet these criteria.^[14] In short, it was incumbent upon Greenline to provide sufficient information in its bid proposal to demonstrate the knowledge or expertise required under the terms of the solicitation. PWGSC and DRDC were not obliged to check Greenline’s references in order to obtain this additional information.
23. Greenline also challenged the validity of certain mandatory requirements of the RFSO. For example, Greenline questioned whether the RFSO requirement that suppliers do research in areas where companies, such as itself, have already created solutions is the best value for money. It is well established, however, that a procuring entity enjoys the discretion to establish its own procurement requirements^[15] subject to its obligations in the trade agreements.^[16] Greenline has not provided evidence or arguments that could lead the Tribunal to reasonably conclude that the requirements of the RFSO breach an obligation in the AIT.
24. Finally, the Tribunal has previously found that “. . . the mere raising of questions is not sufficient to properly document a ground of complaint.”^[17] The Tribunal likewise finds in this case that Greenline’s questions do not, in and of themselves, disclose a reasonable indication of a breach of the AIT.
25. For the reasons set out above, the Tribunal finds that the complaint does not disclose a reasonable indication of a breach of the AIT. That being the case, it will not conduct an inquiry into the complaint.

DECISION

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