MADSEN DIESEL & TURBINE INC.
File No. PR-2014-011

Decision made
Wednesday, May 21, 2014

Decision and reasons issued
Thursday, May 22, 2014

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • 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

MADSEN DIESEL & TURBINE INC.

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

Gillian Burnett
Gillian Burnett
Secretary

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.
2. The complaint relates to a Request for Proposal (RFP) (Solicitation No. F7049-130222/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Fisheries and Oceans for the upgrade of the propulsion control system on board the Canadian Coast Guard Ship Cygnus.
3. Madsen Diesel & Turbine Inc. (Madsen) alleged that PWGSC did not properly evaluate its proposal and applied criteria in the evaluation that were not disclosed in the RFP, resulting in the improper rejection of Madsen’s proposal. According to Madsen, it should have been awarded the contract because its bid met the requirements of the RFP, and it was the lowest bidder.
4. 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) states that “[a] potential supplier who 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” [emphasis added].
5. 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 to 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. By “actual knowledge of the denial of relief”, the Regulations contemplate explicit rejection of a complainant’s requested relief (for example, in a written reply rejecting the complainant’s position). In past instances, the Tribunal has interpreted “constructive knowledge of the denial of relief” as other non-explicit situations constituting the effective denial of relief, including where, after the passage of a reasonable period of time, the complainant’s position has yet to be addressed by the government institution.
6. The Tribunal finds that Madsen made an objection, within the meaning of that term for purposes of subsection 6(2) of the Regulations, to PWGSC regarding the procurement at issue, within 10 working days from the date on which it became aware of its ground of complaint, which the Tribunal considers to be May 5, 2014. Having been notified by PWGSC on May 5, 2014, that its bid was non-compliant and had therefore been disqualified, Madsen made a verbal objection to PWGSC that same day, followed by a letter of objection dated May 8, 2014.
7. However, as of the date on which the complaint was filed, a response by PWGSC to Madsen’s letter of objection of May 8, 2014, remains pending, with no explicit denial of relief or copy of a response to its objection having been provided to the Tribunal. In fact, Madsen filed, with its complaint, a copy of an e-mail from PWGSC, dated May 12, 2014, in which PWGSC indicates that a response to Madsen’s objection was being prepared.
8. With a reply from PWGSC to Madsen’s objection pending and apparently forthcoming, and in the absence of a denial of relief, as required by subsection 6(2) of the Regulations, the complaint is premature.
9. Of course, the Tribunal’s decision does not preclude the possibility of a future complaint if and when Madsen receives a denial of relief in response to its objection from PWGSC.
10. Should Madsen file a new complaint, it must do so within the time limits prescribed by subsection 6(2) of the Regulations. In that event, Madsen may request that the documentation already filed with the Tribunal be joined to the new complaint.

DECISION

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