SHAWMUT EQUIPMENT OF CANADA, INC.
File No. PR-2018-012

Decision made
Tuesday, July 17, 2018

Decision and reasons issued
Friday, July 20, 2018

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 SHAWMUT EQUIPMENT OF CANADA, 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.

Randolph W. Heggart
Randolph W. Heggart
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.

SUMMARY OF COMPLAINT

2.   This complaint by Shawmut Equipment of Canada, Inc. (Shawmut) concerns a request for proposal (RFP) (Solicitation No. W8476-175533/C) for the provision of 95-ton all-terrain cranes.

3.    On January 12, 2017, the Department of Public Works and Government Services (PWGSC)[3] issued a first RFP, Solicitation No. W8476-175533/A, for the same goods, which expired without being awarded.

4.    The RFP was reissued on June 20, 2017, under Solicitation No. W8476-175533/B (Solicitation B), and was amended on March 20, 2018, to extend the closing date to April 12, 2018, and again on April 5, 2018, to answer questions submitted by potential bidders. Shawmut submitted a proposal that was deemed non-compliant due its crane model not meeting the technical requirements of section 3.4.4(b) on outrigger pad force. The contract for Solicitation B was awarded on October 30, 2017, to Consultants F. Drapeau Inc., but was later cancelled on February 28, 2018.

5.      PWGSC issued a third version of the RFP on March 5, 2018, under Solicitation No. W8476‑175533/C (Solicitation C). Shawmut again submitted a proposal; it submits that it proposed a larger and more expensive crane model than it had during Solicitation B because that model had been found non‑compliant.

6.      On June 29, 2018, Shawmut learnt that its bid for Solicitation C was unsuccessful and that Liebherr‑Canada Ltd. (Liebherr) had prevailed with a price significantly lower than Shawmut’s. On the same day, Shawmut asked PWGSC to confirm that Liebherr’s crane met the outrigger pad force requirement, and to provide various supporting calculations and information. PWGSC confirmed that Liebherr met all the requirements of Solicitation C and invited Shawmut to a debrief meeting.

7.    On July 9, 2018, PWGSC provided a debriefing to Shawmut. PWGSC did not provide the crane model, outrigger pad force calculations or any other additional information requested by Shawmut.

8.     Shawmut filed its complaint with the Tribunal on July 11, 2018. Shawmut contends that PWGSC may have awarded the contract to a supplier whose proposed product did not meet the requirements of the RFP and, therefore, was not capable of fulfilling the terms of the contract.

ANALYSIS

9.    On July 17, 2018, pursuant to subsection 30.13(1) of the CITT Act, the Tribunal decided not to conduct an inquiry into the complaint.

10.   Pursuant to sections 6 and 7 of the Regulations, the Tribunal may conduct an inquiry if the following conditions are met:

• the complaint has been filed within the time limits prescribed by section 6;[4]

• the complainant is an actual or potential supplier;[5]

• the complaint is in respect of a designated contract;^[6] and
• the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements.^[7]

11.   In this case, the Tribunal has determined that the information provided by Shawmut does not disclose a reasonable indication of a breach by PWGSC of the trade agreements applicable to this solicitation and, therefore, does not meet the fourth condition of the inquiry.

12. Shawmut claims that PWGSC may have awarded the contract to a bidder whose proposal did not meet the requirements of the RFP. Shawmut bases this claim on the price of the winning bid, which leads it to believe that the crane offered by Liebherr is of the same class as the non-compliant crane Shawmut bid in Solicitation B, with similar boom, weights, dimensions and outrigger spread.

13.  Shawmut requests that certain information regarding the winning bid be made public or disclosed to it, namely the model of the crane which Liebherr proposed, whether Liebherr submitted an engineering analysis to confirm compliance with section 3.4.4(b), and whether Liebherr has a service centre within 100 km of the delivery location in accordance with section 3.1.5 of the RFP.

14. The relevant RFP criteria are set out below:

3.4.4 Dock Loading – The vehicle will operate on a dock with restricted loading as follows:

 . . .

(b) The vehicle must have an outrigger pad force, using a circular outrigger pad of at least 760 mm in diameter, of less than that given as “OUTRIGGER PAD FORCE” in the Data Table, for all crane capacities specified in paragraph 3.4.3 (c).

. . .

1.4 Data Table – The following table shows required performance and dimensions for each configuration, with a clause reference.

CHARACTERISTIC	CLAUSE	UNITS	VALUE (Config A)
. . .	. . .	. . .	. . .
OUTRIGGER PAD FORCE	3.4.4(b)	kN	470

 

. . .

3.1.5 After Sales Service CFB Halifax

Canada requests that the Bidder provide the names, addresses and telephone numbers of their dealers and/or agents authorized to provide after sales service, maintenance and warranty repairs, and a full range of repair parts for the vehicle/equipment offered. The Bidder should show the distance between the delivery location and the authorized dealer and/or agent and the delivery location, which should not be more than 100 kilometres.

. . .

4.2 Basis of Selection

A bid must comply with the requirements of the bid solicitation and meet all mandatory technical and financial evaluation criteria to be declared responsive. The responsive bid with the lowest evaluated aggregate price will be recommended for award of a contract.

15.  The Tribunal has often stated that it “requires more than mere allegations before it will proceed with an inquiry with respect to allegations of bias or the compliance of the products offered by the winning bidder.”^[8] In its complaint, Shawmut lists two possible models for the Liebherr cranes, but does not provide any information regarding these cranes, other than asserting that they are similar in boom, weights, dimensions and outrigger spread to its own model, which was proposed but rejected in an earlier solicitation. Shawmut does not provide any specific evidence to support its allegation that a non-compliant proposal was accepted. Indeed, its complaint is speculative at best and fails to meet the reasonable indication threshold for inquiry.

16.   As such, the Tribunal finds no reasonable indication that PWGSC awarded the contract in a manner that was not in accordance with the relevant trade agreements.

DECISION

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