BELL HELICOPTER TEXTRON CANADA LIMITED
Determinations
BELL HELICOPTER TEXTRON CANADA LIMITED
File No. PR-2003-083
TABLE OF CONTENTS
BY FACSIMILE
April 7, 2004
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| Re: |
Solicitation Number M9010-04HELO/A |
The Canadian International Trade Tribunal (the Tribunal) (Panel: Richard Lafontaine, Presiding Member; James A. Ogilvy, Member; Meriel V.M. Bradford, Member) has reviewed the complaint submitted on behalf of Bell Helicopter Textron Canada Limited (Bell Helicopter) and has decided not to initiate an inquiry into this complaint.
Subsection 7(1)(c) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (the Regulations) reads, in part, that a complaint must disclose “a reasonable indication that the procurement has not been carried out in accordance with whichever one of Chapter Ten of NAFTA, Chapter Five of the Agreement on Internal Trade or the Agreement on Government Procurement applies”.
Subsection 6(1) of the Regulations reads, in part, that a complaint must 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.”
Subsection 6(2) of the Regulations reads, in part, that a potential supplier may object to the relevant government institution “within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier” and has 10 more working days “after the day on which the potential supplier has actual or constructive knowledge of the denial of relief” by the government institution within which to file a complaint with the Tribunal.
On February 6, 2004, Public Works and Government Services Canada (PWGSC) issued a Request for Proposal (RFP). On February 24, 2004, Bell Helicopter responded to the RFP. On March 15, 2004, Bell Helicopter learned that the contract had been awarded to another bidder and that the proposal submitted by Bell Helicopter was deemed non-compliant with the requirements of the RFP. In particular, PWGSC indicated in its letter, dated March 12, 2004, that Bell Helicopter’s bid was rejected due to the fact that it did not quote in accordance with the quotation requirements as detailed in Appendix “B” to the RFP. Specifically, PWGSC referred to the fact that Bell Helicopter did not fill in the required “Yes/No” fill-ins to the Mandatory Requirements of Appendix “B”, and also, that it did not provide the required pricing for the aircraft without Axis Autopilot, FLIR and Night Sun Systems. On March 18, 2004, Bell Helicopter objected to the award of the contract to the other bidder. On March 19, 2004, PWGSC denied relief to Bell Helicopter’s objection. Bell Helicopter filed its complaint with the Tribunal on March 26, 2004.
In its complaint, Bell Helicopter disputes the basis upon which PWGSC disqualified its bid. Bell Helicopter argues that Appendix “B” is not mentioned in sections 1.2, 1.3, 9, 16, 19 or Appendix “A” to the RFP, and that requiring Appendix “B” to be completed constitutes a change in the evaluation criteria, and is therefore contrary to the trade agreements. With respect to the issue of pricing, Bell Helicopter argues that Appendix “A” indicates that bidders are to include in their bids a price for all mandatory requirements, including the Autopilot.
However, the Tribunal observes that Appendix “B” to the RFP, which is listed in the table of contents of the RFP, clearly indicates that the Autopilot, as well as the FLIR and Night Sun systems may be quoted as separate items to be installed at a later date and may not form part of this Contract. Furthermore, Appendix “B” provides a space in which to quote a price without Auto Pilot, FLIR & Night Sun Systems. The Tribunal finds that the content of Appendix “B”, which was clearly relevant to the assessment of the bids, should have led any prospective bidder to understand that it was necessary to submit a completed Appendix “B” with its proposal. Furthermore, it indicates that PWGSC was interested in receiving bids that did not include the price of the Autopilot. In this context, Bell Helicopter’s allegation that PWGSC’s letter of March 12, 2004, contained new and critical pricing information is moot.
In light of the foregoing, the Tribunal does not accept Bell Helicopter’s argument that PWGSC’s rejection of its bid on these grounds constituted a change in the evaluation criteria. Therefore, the Tribunal is of the view that Bell Helicopter’s complaint does not disclose a reasonable indication that the procurement has not been carried out in accordance with the applicable trade agreements.
The Tribunal is sympathetic to Bell Helicopter’s view that the RFP documentation may have been confusing and notes that the aforementioned provisions of Appendix “B”, as compared to the requirements stated earlier in the RFP, create an ambiguity in regard to the requirements of the RFP as a whole. However, in the Tribunal’s view, that ambiguity is quite apparent upon a plain reading of the entire RFP, such that an objection would have to have been made to PWGSC, or a complaint would have to have been filed with the Tribunal, within 10 working days of Bell Helicopter’s review of the RFP. That review would have occurred on or before February 24, 2004, when it submitted its bid. To the extent that Bell Helicopter is complaining about the ambiguous requirements of the RFP, it would have to have filed an objection or complaint within 10 working days of its review of the RFP. However, it did not file an objection until March 18, 2004. Therefore, the Tribunal is of the view that it has no jurisdiction to conduct an inquiry on these grounds.
In light of the above, the Tribunal will not conduct an inquiry into this complaint and considers the matter closed.
Yours sincerely,
Susanne Grimes
Acting Secretary