VALLEY ASSOCIATES GLOBAL SECURITY CORPORATION
File No. PR-2017-053

Decision made
Friday, February 9, 2018

Decision issued
Wednesday, February 14, 2018

Reasons issued
Wednesday, February 28, 2018

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • SUMMARY OF COMPLAINT
  • 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

VALLEY ASSOCIATES GLOBAL SECURITY CORPORATION

AGAINST

PUBLIC SERVICES AND PROCUREMENT 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.

Serge Fréchette
Serge Fréchette
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 February 8, 2018, Valley Associates Global Security Corporation (Valley Associates) filed a complaint regarding a Request for Proposal (RFP) (Solicitation No. W8486-184221/B) issued on December 6, 2017, by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence for the procurement of direct radiography panel systems.
3. PWGSC had previously issued another RFP (Solicitation No. W8486-184221/A) for the same procurement. On November 29, 2017, after the closing date for that original RFP, PWGSC informed Valley Associates that the solicitation had been cancelled and that a revised one would be issued “in the coming weeks” for the same requirement. On the same day, a debriefing was held by telephone, at Valley Associates’ request, during which it was informed that its bid had not met a mandatory requirement of the original RFP. Later that same day, Valley Associates objected to PWGSC’s evaluation of its bid and to its decision to cancel the solicitation on the basis that there did not appear to be “sound or sufficient cause for this cancellation”.^[3] A further debriefing (in person) was scheduled for December 6, 2017.
4. On December 6, 2017, a revised RFP (Solicitation No. W8486-184221/B), with a closing date of December 21, 2017, was issued. The revised solicitation modified certain terms of the original RFP, including one of the technical specifications. These changes were also discussed at the debriefing held on December 6, 2017.
5. The contract resulting from the revised RFP was awarded to another bidder on January 18, 2018. On January 31, 2018, Valley Associates was notified of the contract award and informed that although its bid was found to be responsive to all mandatory technical requirements of the revised RFP, it did not achieve the lowest overall price required for contract award.
6. Valley Associates’ complaint pertains to PWGSC’s handling of the cancellation of the original RFP and to the changes that were made to the technical specifications in the revised RFP. In this respect, Valley Associates takes issue with the fact that the technical specifications were changed after the bids in the original RFP had been reviewed and alleges that the requirements of the revised RFP were tailored to favour a bidder that had presented a non-compliant bid in response to the original RFP.
7. As a remedy, Valley Associates requests that the bids be re-evaluated, that the contract awarded pursuant to the revised RFP be set aside, or that it be compensated for lost profits and reimbursed for its bid preparation costs and complaint costs.

ANALYSIS

8. To initiate an inquiry, the Tribunal must be satisfied that, inter alia, the complaint was filed within the prescribed time limits.^[4]
9. Subsection 6(1) of the Regulations provides that a complaint shall be filed with the Tribunal “. . . 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.”
10. Subsection 6(2) of the Regulations states that a potential supplier who 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.”
11. In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become aware, of its ground of complaint to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant will have 10 working days to file a complaint with the Tribunal after it has actual or constructive knowledge of the denial of relief by the government institution.
12. As noted above, the revised RFP was issued on December 6, 2017, on the same date as PWGSC’s debriefing with Valley Associates with respect to its objections to PWGSC’s evaluation of its bid against the mandatory requirements of the original RFP and to the cancellation of that original RFP. Accordingly, pursuant to subsection 6(2) of the Regulations, Valley Associates had until Wednesday, December 20, 2017 (i.e. 10 working days from December 6, 2017), to file a complaint with the Tribunal with respect to the evaluation of mandatory requirements under the original RFP or its subsequent cancellation.
13. Moreover, Valley Associates admits that it knew about the change to the technical specifications on the same date (December 6, 2017), that is, the date of the issuance of the revised RFP. Valley Associates’ complaint suggests that it objected to this change to the technical specifications at the December 6, 2017, debriefing and that PWGSC denied it relief at the meeting. That said, the evidence submitted with the complaint appears to indicate that Valley Associates’ objections at that meeting pertained to PWGSC’s evaluation of its bid for the original RFP and the cancellation of that RFP, and not to the changes to the technical specifications. In either case, to the extent that its complaint pertains to the modification of the technical specifications, pursuant to subsections 6(1) and (2) of the Regulations, Valley Associates similarly had until Wednesday, December 20, 2017, to file a complaint with the Tribunal.
14. Valley Associates submitted its complaint to the Tribunal on February 8, 2018. Accordingly, Valley Associates’ complaint is untimely.

DECISION

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