SIMEX DEFENCE INC.

SIMEX DEFENCE INC.
File No. PR-2015-017

Decision made
Tuesday, July 7, 2015

Decision issued
Wednesday, July 8, 2015

Reasons issued
Friday, July 17, 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

SIMEX DEFENCE 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.

Ann Penner
Ann Penner
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 COMPLAINT

  1. On June 30, 2015, Simex Defence Inc. (Simex) filed a complaint regarding a Request for Proposal (RFP) (Solicitation No. W8482-156490/A) by the Department of Public Works and Government Services (PWGSC) for the supply of five data diodes for the Department of National Defence.
  2. The complaint centered on one of the mandatory requirements of the RFP—the mandatory power requirement of 75-230V. Specifically, Simex complained that the successful bidder, EMCC Electronics Inc. (EMCC), proposed the same data diodes that Simex had bid but quoted a higher price. It also alleged that EMCC’s bid was likely premised on an outdated technical data sheet that indicated a power requirement of 75-230V for the data diodes. Simex claimed that it included the most recent data sheet in its bid to confirm that its bid proposed data diodes with a power requirement of 90-250V.

BACKGROUND TO THE COMPLAINT

  1. On April 1, 2015, PWGSC informed Simex that its bid was not successful because it did not meet all the mandatory requirements of the RFP. Simex objected to PWGSC’s decision later that same day.
  2. At the same time, Simex alerted PWGSC to its correspondence with Fox-IT, the manufacturer of the data diodes proposed in the bids of Simex and EMCC. Simex used the correspondence with Fox-IT to highlight the existence of two data sheets for the data diodes, the newer of which indicated a power requirement of 90-250V and the older, a power requirement of 75-230V. According to Simex, EMCC had likely provided outdated and/or inaccurate technical data to substantiate its bid. Simex requested that PWGSC terminate the contract with EMCC as a result.
  3. On May 20, 2015, Simex filed an initial complaint with the Tribunal (File No. PR-2015-008).
  4. On May 25, 2015, the Tribunal decided that that complaint was premature, as PWGSC had yet to respond to the Simex’s objection. The Tribunal’s decision indicated that Simex could file a new complaint within 10 working days of receiving a denial of relief. The Tribunal further indicated that, if PWGSC failed to respond within 30 days of the issuance of the reasons, the Tribunal would deem PWGSC to have constructively denied relief and that Simex could file a new complaint within 10 working days of the expiry of that 30-day period.
  5. On June 23, 2015, PWGSC informed Simex that its decision about the winning bid held—Simex’s bid was non-compliant, as it included a data diode with a power requirement of 90-250V instead of 75‑230V as the RFP required.
  6. On June 30, 2015, Simex filed the present complaint with the Tribunal.

ANALYSIS

  1. Pursuant to sections 6 and 7 of the Regulations, the Tribunal will conduct an inquiry if and only if the following four conditions are met:
  • the complaint has been filed within the time limits prescribed by section 6;[3]
  • the complainant is an actual or potential supplier;[4]
  • the complaint is in respect of a designated contract;[5] and
  • the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the trade agreements.[6]
  1. Simex’s complaint meets the first three requirements, but not the last one because Simex did not demonstrate that PWGSC disregarded any of the requirements of the RFP. Instead, Simex’s bid did not meet the terms of the RFP; it included data diodes with a power requirement of 90-250V even though the RFP required 75-230V.
  2. Consequently, PWGSC had no choice but to declare Simex’s bid non-compliant, as Simex did not meet its responsibility of ensuring that its bid was not only accurate but also in conformity with the mandatory requirements of the RFP.[7] Simex later learned that the data diodes that it bid could have met the power requirement of 75-230V, but that knowledge could not change, after the fact, the power requirement included in its bid. The onus is on the bidder to discover the full capabilities of a product proposed in its bid prior to submitting a bid and to state so accordingly in its bid. Government institutions must be able to rely on the information included in a bid during the evaluation process.[8]
  3. Simex did not dispute that the data diodes purportedly supplied by EMCC do indeed meet the power requirement of 75-230V. Rather, Simex appears to have used its complaint to justify its misapprehension of the power requirements in its bid (90-250V) by stating that EMCC should have relied on current product literature to erroneously state the same. The Tribunal does not accept that logic. EMCC’s bid proposed data diodes that met the mandatory power requirement of 75-230V. PWGSC accepted that statement as true.
  4. In light of the above, the Tribunal finds that the information provided by Simex does not disclose a reasonable indication that PWGSC did not conduct the procurement in accordance with the relevant trade agreements.

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].      Subsection 6(1) of the Regulations.

[4].     Paragraph 7(1)(a) of the Regulations.

[5].     Paragraph 7(1)(b) of the Regulations.

[6].     North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA]. In this specific instance, Chapter 10 of NAFTA is applicable. Article 1008(1)(a) of NAFTA provides that “[e]ach Party shall ensure that the tendering procedures of its entities are . . . applied in a non-discriminatory manner . . . .” Article 1015(4)(a) of NAFTA provides that “to be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation and have been submitted by a supplier that complies with the conditions for participation”. Article 1015(4)(d) of NAFTA further provides that “awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation”.

[7].     BRC Business Enterprises Ltd. v. Department of Public Works and Government Services (27 September 2010), PR-2010-012 (CITT) at para. 51, citing Re Complaint Filed by Trans-Sol Aviation Service Inc. (1 May 2008), PR-2008-010 (CITT).

[8].     Paul Pollack Personnel Ltd. O/A The Pollack Group Canada (7 October 2013), PR-2013-016 (CITT) [Paul Pollack] at para. 31, citing 3202488 Canada Inc. o/a Kinetic Solutions (18 February 2011), PR-2010-089 (CITT) and Airsolid inc. (18 February 2010), PR-2009-089 (CITT). Instances may exist in which reliance on the representations of bidders may not be adequate with regard to the proper evaluation of bids. An example would be a scenario in which the government institution possesses information at the time of bid evaluation that puts into question the accuracy of a representation. See Paul Pollack at para. 31.