JOLI DISTRIBUTION F. HENDEL INC.

JOLI DISTRIBUTION F. HENDEL INC.
File No. PR-2014-068

Decision made
Wednesday, April 8, 2015

Decision issued
Wednesday, April 8, 2015

Reasons issued
Tuesday, April 14, 2015

TABLE OF CONTENTS

 

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

JOLI DISTRIBUTION F. HENDEL 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.
  2. Joli Distribution F. Hendel Inc. (Joli Distribution) filed a complaint regarding a procurement (Solicitation No. 47167-145944/B) by the Department of Public Works and Government Services (PWGSC) on behalf of the Canada Border Services Agency (CBSA) for the provision of evidence bags.
  3. Joli Distribution alleged that PWGSC awarded the contract to a non-compliant bidder. Specifically, it alleged that the evidence bags supplied by the winning bidder, Super Channel International Corp. (Super Channel), did not meet the requirements of the solicitation. In addition, Joli Distribution alleged that Super Channel did not comply with certain certification requirements. Joli Distribution argued on this basis that it, rather than Super Channel, should be awarded the contract.
  4. On April 8, 2015, pursuant to subsection 30.13(1) of the CITT Act, the Tribunal decided not to conduct an inquiry into the complaint. The reasons for that decision are as follows.

ANALYSIS

  1. Subsection 30.11(1) of the CITT Act provides that, subject to the Regulations, a potential supplier may file a complaint with 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. The Regulations set out further conditions to be met in order for the Tribunal to initiate an inquiry into a complaint.
  2. The conditions for inquiry include strict time frames within which complaints must be filed. Section 6 of the Regulations provides that a potential supplier generally has 10 working days after the day on which the basis of its complaint became known or reasonably should have become known to it to either object to the relevant government institution or file a complaint with the Tribunal. In cases where a potential supplier objects to the government institution, it then has 10 working days after the day on which it is denied relief by that government institution to file a complaint with the Tribunal. Subsections 6(1) and (2) provide as follows:

6.(1) Subject to subsections (2) and (3), a potential supplier who files a complaint with the Tribunal in accordance with section 30.11 of the Act shall do so 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.

(2) A potential supplier who has made an objection regarding a procurement relating to a designated contract 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.

  1. In this case, the Tribunal finds that Joli Distribution’s complaint was filed outside the time frames provided by subsections 6(1) and (2) of the Regulations.
  2. The solicitation was issued on April 24, 2014. Joli Distribution submitted its bid on June 9, 2014, and the solicitation closed on June 11, 2014. Furthermore, PWGSC informed Joli Distribution of the award of the contract to Super Channel on August 7, 2014.
  3. According to the information provided in the complaint, Joli Distribution’s allegations that the contract was awarded to a non-compliant bidder are based on “. . . the knowledge [it has] of the winning bidder . . . in the marketplace and . . . the quality of their bags . . . .”[3] While Joli Distribution did not specifically indicate when it acquired this “knowledge”, the information in the complaint indicates that Joli Distribution’s allegations are founded on industry experience acquired over time[4] and prior to the notification of award of the contract to Super Channel on August 7, 2014.
  4. The Tribunal therefore finds that the basis of the complaint became known to Joli Distribution, at the latest, on August 7, 2014, when it learned that Super Channel had been awarded the contract. It follows that, if Joli Distribution considered that it had reasonable grounds to believe that the contract was awarded to Super Channel in breach of any of the requirements established in the solicitation, it had to either object to the government institution or file a complaint with the Tribunal within 10 working days of learning of the award of the contract. More precisely, pursuant to section 6 of the Regulations, Joli Distribution would have had to make an objection or file a complaint within 10 working days of August 7, 2014, or by August 21, 2014, at the latest.
  5. Documents filed with the Tribunal indicate that Joli Distribution made an objection to PWGSC regarding the compliance of the winning bidder with certain certification requirements on August 25, 2014,[5] only—an objection that was denied by PWGSC on September 11, 2014.[6] In addition, Joli Distribution appears to have waited until January 2015[7]—more than four months after the award of the contract on August 7, 2014—to raise with PWGSC the issue of an alleged non-compliance of the product supplied by the winning bidder. This second objection was dismissed on February 17, 2015.[8]
  6. It follows that, when Joli Distribution filed its complaint to the Tribunal on April 1, 2015,[9] it did so well beyond the 10-working-day time frame provided under subsections 6(1) and (2) of the Regulations. Accordingly, the complaint is time barred.
  7. The Tribunal has taken into account Joli Distribution’s comment that the “reason for [the] time delay from contract award to [the] date of contention is because [the] winning bidder had to submit samples for evaluation, and tests and final approval were not complete until some time in December 2014 [and that Joli Distribution] had to wait for [the] results before contesting.”[10]
  8. Waiting for these results was not a valid basis to delay filing the complaint. The Tribunal finds, in this case, that a complaint based on the purported inability of the winning bidder to provide satisfactory samples concerns an issue that is unrelated to the criteria for award of the contract.
  9. Provisions in the solicitation documents show that providing pre-production samples formed part of the winning bidder’s contractual obligations post contract award and was not a requirement that had to be met for the purposes of bid evaluation and contract award. The provision titled “Pre-Production Samples” provides as follows:

After contract award, the successful Bidder will be required to provide three (3) pre-production samples of item 001, item 002 and item 003, to the Technical Authority for acceptance within twenty five (25) calendar days from the effective date of the contract.[11]

[Emphasis added]

  1. In addition, the section titled “RESULTING CONTRACT CLAUSES” re-iterates that the contractor will have to provide pre-production samples, for acceptance by the Technical Authority, before the contractor is to commence production and delivery of the goods under the contract.[12]
  2. The question of whether or not Super Channel complied with the obligation to provide satisfactory pre-production samples under its contract with the Government is not relevant to the question of whether the award of the contract to Super Channel followed the criteria of the solicitation in the first place. The question of the winning bidder’s compliance with its contractual obligations post contract award is also outside the Tribunal’s jurisdiction. The CITT Act confers jurisdiction over aspects of the procurement process, but does not extend it to questions arising after the award of a contract, such as the performance of obligations arising under the terms of the resulting contract.[13]
  3. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint.

DECISION

  1. 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, c. 47 (4th Supp.) [CITT Act].

[2].      S.O.R./93-602 [Regulations].

[3].      Complaint, attachment 3, and confidential information filed on April 1, 2015.

[4].      See, for example, e-mails from Joli Distribution to PWGSC, included as attachment 2 to the complaint.

[5].      Complaint, attachment1, e-mail to PWGSC dated August 25, 2014.

[6].      Complaint, attachment 1, e-mail from PWGSC dated September 11, 2014.

[7].      Complaint, attachment 2, e-mail to PWGSC dated January 22, 2015.

[8].      Complaint, attachment 2, e-mail from PWGSC dated February 17, 2015, which indicates that “. . . PWGSC considers this matter to be closed.”

[9].      The Tribunal first received the complaint on March 26, 2015. However, as several documents and information relevant to the complaint were missing, the Tribunal considered that the complaint was not properly documented, having regard to the requirements of subsection 30.11(2) of the CITT Act. Following a request from the Tribunal, Joli Distribution filed additional documents and information on April 1, 2015, at which time the Tribunal considered the deficiencies to have been corrected and the complaint to have been filed in accordance with subsection 30.11(2) of the CITT Act and section 96 of the Canadian International Trade Tribunal Rules, S.O.R./91-499.

[10].    Complaint at 3.

[11].    Solicitation documents, amendment No. 002 at 9, filed on April 1, 2015, as part of Joli Distribution’s bid.

[12].    Solicitation documents, amendment No. 002 at 19-20, clause 4.5, filed on April 1, 2015, as part of Joli Distribution’s bid.

[13].    Subsection 30.11(1) of the CITT Act. See also, for example, Airsolid inc. (18 February 2010), PR-2009-089 (CITT) at paras. 13-16, where the Tribunal explained that “. . . the procurement process within its jurisdiction, begins after an entity has decided on its procurement requirement and continues through to the awarding of the contract” and that, if it becomes known after the award of the contract that the goods or services supplied by the chosen contractor do not meet a mandatory requirement, the issue would be one of contract performance or contract administration outside the Tribunal’s jurisdiction.