2040077 ONTARIO INC.
O/A FDF GROUP
File No. PR-2014-063

Decision and reasons issued
Friday, March 6, 2015

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

2040077 ONTARIO INC. O/A FDF GROUP

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. Since the complainant has not yet received a response to its objection to the government institution, the complaint is premature.

Stephen A. Leach
Stephen A. Leach
Presiding Member

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) issued by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of National Defence, for the supply of urethane dumbbells for the Stadacona Sports and Fitness Centre (Solicitation No. W010S-15A032/A).
3. 2040077 Ontario Inc. o/a FDF Group (FDF) alleged that the contract was awarded to a supplier that did not meet the mandatory criteria set forth in the RFP. Specifically, the bid solicitation documents required that the dumbbells be “100% manufactured in the US”. FDF alleged that the products to be supplied by the successful bidder are assembled in the United States using parts manufactured in China.
4. FDF has requested that it be compensated for lost opportunity and lost profits.
5. The solicitation was issued by PWGSC on November 12, 2014. PWGSC additionally issued three amendments to the solicitation on November 21, December 12 and December 15, 2014. Amongst other changes (which are not relevant to this complaint), the second amendment added the “100% manufactured in the US” specification to Annex A – Statement of Requirement,^[3] and the third amendment changed the delivery date from January 18 to March 31, 2015.^[4]
6. The bid closing date was December 18, 2014.
7. The contract was awarded on January 28, 2015.
8. On February 2, 2015, FDF sent an initial letter of objection to PWGSC explaining its concerns that the contract had been awarded to a non-compliant bidder. PWGSC responded on February 4, 2015, that it was looking into FDF’s concerns. On February 19, 2015, FDF filed a complaint with the Tribunal. On February 27, 2015, the Tribunal issued a decision that the complaint was premature since “FDF ha[d] not yet received a formal denial of relief with respect to its alleged ground of complaint, as set out in subsection 6(2) of the Regulations.”^[5]
9. Between February 2 and March 3, 2015, FDF made several additional attempts to contact PWGSC. PWGSC responded to those inquiries twice. As noted above, it responded on February 4, 2015, and, most recently, PWGSC responded on February 9, 2015, as follows:

I can assure you that we are working diligently to determine the proper course of action. You will be provided with a final response as soon as possible . . . .^[6]

10. FDF filed the present complaint on March 3, 2015.
11. Subsection 6(2) of the Regulations 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.”
12. The Tribunal notes that FDF’s objection to PWGSC on February 2, 2015, was made within 10 days of FDF having discovered the ground of its complaint. However, the e-mail responses by PWGSC continue to demonstrate its intention to respond to FDF’s concerns and, therefore, the complaint remains premature. FDF has not yet received a formal denial of relief with respect to its alleged ground of complaint, as set out in subsection 6(2) of the Regulations.
13. The Tribunal’s decision at this time does not preclude any future complaint by FDF once PWGSC responds to its objection or if PWGSC fails to do so within a reasonable time, which, in the Tribunal’s opinion, would be a response by March 11, 2015.
14. If FDF wishes to file a new complaint, it must do so within 10 working days after it receives actual denial of relief by PWGSC. However, if its objection is not addressed by March 11, 2015, FDF may assume denial of relief, and, in that circumstance, any complaint must be filed within 10 working days of that date, i.e. no later than March 25, 2015. In either event, upon filing a new complaint, FDF may request that the documentation already filed with the Tribunal be joined to the new complaint.

DECISION

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