398 3200 CANADA INC. O/A APOGÉE
File No. PR-2016-061

Decision made
Wednesday, March 8, 2017

Decision issued
Thursday, March 9, 2017

Reasons issued
Wednesday, March 15, 2017

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • 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

398 3200 CANADA INC. o/a APOGÉE

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.

Daniel Petit
Daniel Petit
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. The complaint relates to a Request for Proposal (RFP) (Solicitation No. C1111-160522/B) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Canadian Heritage (CH) for the design, organization and production of a pyromusical display on July 1, 2017, during Canada’s 150^th anniversary celebration.
3. 398 3200 Canada Inc. o/a Apogée (Apogée) alleges that the method used for selecting the winning bidder is inconsistent with the government’s procuring needs. Apogée essentially alleges that the selection method is too focused on price, which prevents CH from obtaining the best available service that matches its needs.
4. By way of remedy, Apogée requested that the selection method be completely revised so that it is compatible with CH’s objectives. Apogée also requested its bid preparation costs as well as its complaint costs.
5. The Tribunal decided, on March 8, 2017, not to inquire into the complaint for the reasons that follow.

ANALYSIS

6. The Tribunal can only inquire into a complaint if certain prescribed conditions are met. Amongst these conditions, the Tribunal must determine if the complaint was filed within the prescribed time frame. In this case, the complaint was filed late.
7. Subsection 6(1) of the Regulations provides that “. . . a potential supplier who files a complaint with the Tribunal . . . 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.” Subsection 6(2) of the Regulations provides that a potential supplier that has made an objection 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.”
8. In short, in order to meet these prescribed deadlines, a complainant has 10 working days from the date on which it first became aware, or reasonably should have become aware, of its ground of complaint to either file a complaint with the Tribunal or object to the government institution. Thus, the prescribed deadlines require that potential suppliers “. . . keep a constant vigil and [. . .] react as soon as they become aware or reasonably should have become aware of a flaw in the process.”^[3] The procurement review process does not provide for perceived grievances to be accumulated and then presented only when the contract is awarded.
9. PWGSC issued the RFP on December 22, 2016, and published it online on December 23, 2016. The selection method was set out in section 4.2 of Part 4 of the RFP. It provided in particular as follows:   

   4.2.2 [. . .] The responsive bid with the highest number of points will be recommended for award of a contract, provided that the total evaluated price does not exceed the budget available for this requirement.

   Where two (2) or more bids achieve the identical highest number of points, the bid with the lowest total price will be recommended for award of a contract.

   [Translation]

10. The closing date of the solicitation was January 31, 2017.
11. On February 21, 2017, PWGSC informed Apogée that the contract had been awarded to Royal Pyrotechnie.
12. Following this announcement, after a few exchanges with PWGSC concerning the selection method used for the RFP, Apogée filed its complaint with the Tribunal on March 6 and 7, 2017.
13. Apogée complains that an inappropriate selection method was used for the RFP. However, its opportunity to contest this aspect of the RFP has long since expired.
14. The Tribunal finds that Apogée knew or reasonably should have known the basis of its complaint upon reading the RFP, that is, when the RFP was published or soon thereafter. The selection method was clearly set out in the RFP. Moreover, Apogée admits that “PWGSC followed all the applicable rules” [translation].^[4] As such, the alleged deficiencies of the selection method chosen for this RFP, namely that the bid price was in some respects heavily weighted in the selection method, were or should have been known to Apogée upon reading the RFP.
15. Consequently, in accordance with subsections 6(1) and (2) of the Regulations, Apogée had a 10‑working-day time frame after it became aware of this ground of complaint to either object to PWGSC or file a complaint with the Tribunal regarding its objections to the stated selection method.
16. The information on the record indicates that Apogée neither made an objection nor did it file a complaint within the prescribed time frame. Rather, it chose to submit a bid and to challenge the rules of the RFP regarding the basis of selection only when the contract was awarded, a course of action not accepted within the framework of the procurement review process pursuant to the CITT Act.
17. The complaint is therefore time-barred by operation of law.
18. In light of the above finding, it is not necessary to address the other aspects of the complaint. However, the Tribunal would note that even had the complaint been filed within the designated time frame, it could not have conducted an inquiry. Another condition that must be met for an inquiry to be launched in accordance with the Regulations is that the information on the record must disclose a reasonable indication that the procurement process has not been conducted in accordance with the requirements of the trade agreements relevant to the designated contract.^[5] With regard to the choice of evaluation and selection method in a procurement, the government institution is free to establish the criteria it deems appropriate, as long as the chosen criteria do not violate the requirements of the trade agreements. In this case, the alleged problems with the selection method used in the RFP do not disclose any indication of a violation of the requirements of the trade agreements.

DECISION

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