HEARTZAP SERVICES INC.
File No. PR-2016-009

Decision made
Friday, May 13, 2016

Decision and reasons issued
Tuesday, May 17, 2016

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • BACKGROUND
  • 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

HEARTZAP SERVICES 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

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. This complaint by HeartZap Services Inc. (HeartZap) concerns a Request for Proposal (RFP) (Solicitation No. HT267-150901/A) by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of Health, for the provision of automated external defibrillators, medical and surgical instruments, equipment and supplies. The contract was awarded to Tenaquip Limited (Tenaquip).
3. HeartZap alleged that PWGSC improperly found Tenaquip’s bid compliant, as Tenaquip could not have met two of the requirements of the RFP, namely, criteria 3.1.3(d) and specification 6 of Annex A. HeartZap alleged that the pricing provided by Tenaquip was too low to be reflective of a fully compliant bid. As a remedy, HeartZap requested that the bids be re-evaluated.
4. The Tribunal has reviewed the complaint filed by HeartZap. The Tribunal finds that the complaint does not disclose a reasonable indication of a breach of the applicable trade agreements as listed at paragraph 7(1)(c) of the Regulations. Consequently, the Tribunal will not conduct an inquiry into this complaint.

BACKGROUND

5. The RFP was issued on September 11, 2015, and bidding closed on January 29, 2016.
6. HeartZap submitted its bid on January 24, 2016.
7. On May 3, 2016, PWGSC informed HeartZap that it had not been awarded the contract, as it was not the lowest compliant bidder.
8. On May 5, 2016, HeartZap wrote to PWGSC to challenge the award of contract to Tenaquip on the basis that Tenaquip could not have met all the mandatory requirements of the RFP. On May 5, 2016, PWGSC responded to HeartZap and denied the allegations, stating that, “. . . the winning bidder MUST provide everything listed in the requirement otherwise the Contract will be terminated.”
9. On May12, 2016, HeartZap filed its complaint with the Tribunal.

ANALYSIS

10. Pursuant to sections 6 and 7 of the Regulations, the Tribunal may conduct an inquiry into a complaint if the following four conditions are met:
    • the complaint has been filed within the time limits prescribed by section 6;
    • the complainant is an actual or potential supplier;
    • the complaint is in respect of a designated contract; and
    • the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements, which, in this case, include the Agreement on Internal Trade,^[3] the North American Free Trade Agreement,^[4] the Canada-Peru Free Trade Agreement,^[5] the Canada-Colombia Free Trade Agreement,^[6] the Canada-Panama Free Trade Agreement,^[7] the Canada-Honduras Free Trade Agreement,^[8] the Canada-Chile Free Trade Agreement^[9] and the Canada-Korea Free Trade Agreement.^[10]

11. HeartZap’s complaint was timely, as it was filed within 10 working days of the day on which it became aware of the denial of relief from PWGSC. Further, HeartZap’s complaint meets the second and third conditions set out above, as HeartZap is an actual supplier, and the complaint is in respect of a solicitation by PWGSC that is acknowledged by that government institution as being covered by the trade agreements. The solicitation is therefore a “designated contract” by virtue of section 30.1 of the CITT Act and section 3 of the Regulations.
12. HeartZap’s complaint does not meet the fourth condition, as the information provided does not disclose a reasonable indication that the procurement was not conducted in accordance with the applicable trade agreements. The Tribunal has previously stated that a ground of complaint must have some evidentiary basis to suggest that there was a breach of the relevant trade agreements.^[11] Beyond an assertion made in its complaint, HeartZap did not provide any documentation to substantiate its claim that Tenaquip’s proposal did not meet the requirements in issue.
13. In light of the foregoing, the Tribunal finds that the complaint is speculative and does not consider that it reasonably indicates that PWGSC awarded the contract in a manner that was not in accordance with the applicable trade agreements.

DECISION

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