KELLER EQUIPMENT SUPPLY LTD.
File No. PR-2016-038

Decision made
Thursday, October 20, 2016

Decision issued
Tuesday, October 25, 2016

Reasons issued
Wednesday, November 2, 2016

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • SUMMARY OF COMPLAINT
  • 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

KELLER EQUIPMENT SUPPLY LTD.

AGAINST

DEFENCE CONSTRUCTION CANADA

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

2. On October 18, 2016, Keller Equipment Supply Ltd. (Keller) filed a complaint regarding a Notice of Proposed Procurement (NPP) by Defence Construction Canada (DCC) for the supply of portable engine exhaust units and the construction of a new electrical distribution system to power such units in a building located at Canadian Forces Base Suffield, Alberta (Project No. SD152907_CN64029).
3. Keller complained that DCC unfairly refused to accept and review its bid because it was received after the bid submission deadline. Keller argued that DCC should have made an exception and accepted its bid. Keller explained that its bid was late because it was confused by the terms of the NPP about (1) whether a bid could be submitted electronically and (2) the time by which bids had to be received on the date of bid closing.^[3]
4. As a remedy, Keller requested that its bid be accepted and reviewed by DCC.

BACKGROUND

5. DCC issued the NPP on September 19, 2016, with a bid closing date and time of 4:00 p.m. EDT on October 12, 2016.
6. The NPP stated that bids would be received at a physical address in Medicine Hat, Alberta. The NPP also noted that an “. . . Authorized Signer PIN . . . generated by MERX . . .”^[4] was required to submit bids electronically.^[5]
7. Keller explained that it requested an authorized signer PIN from MERX on October 12, 2016. However, as MERX would not accept its electronic bid, Keller contacted Mr. Randy Archer of DCC to request more information. Mr. Archer explained that, as per the instructions in the NPP, bids had to be submitted in person at the address specified in the NPP.
8. Accordingly, Keller had a courier deliver its bid. The courier arrived at 4:14 p.m. EDT. DCC returned the bid to the courier, as it was received 14 minutes after the bid closing time.

ANALYSIS

9. To initiate an inquiry, the Tribunal must find that (a) the complainant is a potential supplier, (b) the complaint is in respect of a designated contract and (c) the complaint discloses a reasonable indication that the procurement has not been carried out in accordance with the applicable trade agreements.^[6] The complaint must also be filed within the prescribed time limits.^[7]
10. Keller’s complaint is timely,^[8] and involves a potential supplier^[9] and a designated contract.^[10] However, Keller’s complaint does not disclose a reasonable indication that the procurement was conducted in breach of any applicable trade agreement, in this case the AIT.
11. In particular, Keller’s complaint does not indicate a breach of Article 506(4) of the AIT, which requires that a procuring entity clearly indicate to potential suppliers the date, time and place for the delivery of bids.
12. As noted above, Keller said that it was confused by two of the provisions of the NPP, that is, (1) whether a bid could be submitted electronically and (2) the time by which bids had to be received on the date of bid closing.
13. In regard to the manner by which bids were to be submitted, Keller argued that its bid would have been submitted on time had it been delivered electronically, through MERX, as provided by the terms of the NPP. In particular, Keller pointed to the language in the NPP indicating that “. . . an Authorized Signer PIN number generated by MERX is required in order to submit your bid electronically” and that “[t]his PIN must be requested by the person with the authority to bind your organization.”^[11]
14. Notwithstanding this language in the NPP, the Tribunal finds that Keller ignored that the NPP expressly required a physical bid submission, as indicated under the heading “Bid Submission Type”. It also identified a mailing address in Alberta as the location at which “[s]ealed tenders will be received . . . .”
15. Moreover, section 7 of DCC’s “Standard Construction Contract Documents”, incorporated by reference into the NPP,^[12] clearly indicated that tenders had to be enclosed in an envelope and submitted to the office designated for the receipt of tenders and that tenders that were not received on time would not be considered. Section 7 provides as follows:

    7 SUBMISSION OF TENDER

    7.1 The tender, duly signed and completed, is to be enclosed in an envelope, and addressed and submitted to the office designated for the receipt of tenders.

    7.2 The Tenderer is to ensure the tender is clearly identified by including the following information on the face of the tender envelope:

    7.2.1 solicitation or project number;

    7.2.2 name of the Tenderer;

    7.2.3 closing date and time; and

    7.2.4 closing location.

    7.3 Tenderers intending to have their tender hand delivered to the Tender Closing Office are advised to allow sufficient time for their carrier to clear building security.

    7.4 Tenders must be received at the Tender Closing Office stipulated on the Tender Form, on or before the specified tender closing date and time, as determined by the Tender Closing Office clock. TENDERS RECEIVED AFTER THIS DATE AND TIME SHALL NOT BE CONSIDERED, REGARDLESS OF ANY REASON FOR THEIR LATE ARRIVAL.

    [Emphasis added]

16. Finally, the NPP did not indicate that DCC would accept electronic submissions,^[13] as confirmed when Keller contacted Mr. Archer for more information on the morning of October 12, 2016, prior to the bid closing time.
17. Therefore, while the reference to electronic submissions in the NPP and the MERX-generated authorized signer PIN could have been potentially unclear, a full reading of the NPP was sufficiently clear to avoid any such confusion. Further, when Keller registered with MERX to become an authorized signer for e-bid submissions (on the morning of the bid closing date), it received a confirmation e-mail from MERX which stated that the PIN was to be used at the time of submission “[w]hen a buyer indicates that they will receive bids electronically through MERX . . .” [emphasis added]. As there was no such requirement in the NPP, DCC’s refusal to permit electronic bidding was consistent with, and even expressly required by, the terms of the NPP.
18. Keller complained that it was confused by the time by which bids had to be submitted. It explained that it “over looked” the reference to 4:00 p.m. EDT in the NPP and assumed that bids were to be received by 4:00 p.m. local time in Medicine Hat, Alberta.
19. The NPP included a closing date of October 12, 2016, and a closing time of “04:00:00 PM EDT” [emphasis added]. The NPP also indicated that bids had to be received by “. . . 14:00 hours, local time” (i.e. Mountain Daylight Time (MDT), given the job location and bid submission address).
20. The integrity of the procurement system depends on the timely receipt of complete bids in the manner and at the place specified in solicitation documents. Tribunal case law has confirmed this without exception, even in circumstances of unfortunate life events or human or technical mishaps.^[14]
21. The NPP is clear that bids received after the closing deadline “. . . SHALL NOT BE CONSIDERED, REGARDLESS OF ANY REASON FOR THEIR LATE ARRIVAL.” The Tribunal has previously found that permitting one bidder to benefit from an extension to the bid closing deadline can be unfair to other bidders, so much so that they could file their own complaint with the Tribunal.^[15] DCC therefore had no discretion to allow Keller to submit its bid late, in violation of the explicit terms of the NPP and, potentially, the AIT. While it could have used consistent terminology throughout the NPP when referring to the closing time, there was no actual discrepancy in the closing time stated in the NPP. Any confusion on Keller’s part appears to have stemmed from a misreading of the NPP.
22. In light of the above, the complaint does not disclose a reasonable indication of a breach of the AIT.

DECISION

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