SHAW INDUSTRIES INC.
File No. PR-2014-059

Decision made
Wednesday, February 25, 2015

Decision issued
Thursday, February 26, 2015

Reasons issued
Tuesday, March 10, 2015

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • SUMMARY OF THE COMPLAINT
  • BACKGROUND
  • TRIBUNAL’S 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

SHAW INDUSTRIES 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.

Peter Burn
Peter Burn
Presiding Member

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 an Invitation to Tender (ITT) (Solicitation No. EP067-151736/A) issued on January 23, 2015, by the Department of Public Works and Government Services (PWGSC) for construction services to retrofit the fourth floor of the Sir Charles Tupper Building in Ottawa.
3. Shaw Industries Inc. (Shaw) complained that the mandatory requirement for a carpet fibre modification ratio no greater than 2.6 violates Article 1007 of the North American Free Trade Agreement^[3] because (1) it creates an unnecessary barrier to trade by being unnecessarily restrictive and by having no technical justification; (2) it is not based on any international standard or Canadian technical regulation, recognized standard or building code; and (3) it specifies a technical requirement in terms of design rather than performance.

BACKGROUND

4. The ITT, at Part 2.2.7.1 of Section 09 68 00 of the Drawings and Specifications, contains the following requirement for modular carpet: “Fibre shape to have maximum Modification Ratio of 2.6 for soil release capabilities.”
5. On February 3, 2015, Shaw expressed its objection to the maximum modification ratio, arguing that it is “a technical requirement that has no technical justification” and that a “carpet’s modification ratio has no demonstrable impact on the carpet’s soil release capabilities”.^[4]
6. On February 12, 2015, PWGSC responded to Shaw’s objection by indicating that no changes were to be made to the requirements for carpet:^[5]

After considering your question and comments, the technical authority has sent this response to your original question:

Please bid as per plans and specifications. Refer to section 09 68 00 Modular Carpet, sentence 2.2.7.1.

7. On February 20, 2015, Shaw filed its complaint with the Tribunal.

TRIBUNAL’S ANALYSIS

8. Pursuant to sections 6 and 7 of the Regulations, 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 being able to conduct an inquiry: (i) whether the complaint has been filed within the time limits prescribed by section 6 of the Regulations; (ii) whether the complainant is a 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 Ten of NAFTA, Chapter Five of the Agreement on Internal Trade,^[6] the Agreement on Government Procurement,^[7] Chapter Kbis of the Canada-Chile Free Trade Agreement,^[8] Chapter Fourteen of the Canada-Peru Free Trade Agreement,^[9] Chapter Fourteen of the Canada-Colombia Free Trade Agreement,^[10] Chapter Sixteen of the Canada‑Panama Free Trade Agreement,^[11] Chapter Seventeen of the Canada-Honduras Free Trade Agreement^[12] or Chapter Fourteen of the Canada-Korea Free Trade Agreement^[13] applies.
9. In this case, the Tribunal considers that the complaint was filed within the time limits prescribed by section 6 of the Regulations. However, the Tribunal finds that Shaw is not a potential supplier.
10. Section 30.1 of the CITT Act defines a “potential supplier” as “a bidder or prospective bidder on a designated contract” [emphasis added]. The Tribunal does not consider Shaw to be a bidder since it has provided no indication that it had submitted a bid in response to the ITT.
11. The Tribunal, in Flag Connection,^[14] considered that a “prospective bidder” must (1) have the technical and financial capability of fulfilling the requirement that is the subject of the procurement; and (2) still have the capacity to submit a bid in response to the solicitation.
12. Even if Shaw were to meet the second criteria, the Tribunal does not consider that Shaw meets the first criteria for a “prospective bidder”.
13. As mentioned above, the ITT seeks to procure services relating to the complete retrofit of the fourth floor of the Sir Charles Tupper Building, including carpentry, plumbing, electrical, heating, ventilation and air conditioning, fire safety, drywall installation, painting and carpet. The ITT provides no indication that bidders can submit bids for only a portion of the goods and services being procured.
14. In its complaint, Shaw indicated that it sells carpet acquired from Shaw Industries Group Inc., a manufacturer of carpet and floor coverings. Shaw provided no information to suggest that it has the technical or financial capability of fulfilling all of the requirements of the solicitation. Rather, it appears that Shaw is simply seeking the opportunity to become a subcontractor to the entity that ultimately wins the contract. The Tribunal does not consider Shaw, as a potential subcontractor, to be a “potential supplier”.^[15] Accordingly, the Tribunal cannot accept the complaint for inquiry.

DECISION

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