THE MASHA KRUPP TRANSLATION GROUP LTD.
Determinations
THE MASHA KRUPP TRANSLATION GROUP LTD.
File No. PR-2005-016
TABLE OF CONTENTS
BY FACSIMILE
September 8, 2005
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| Re: |
Solicitation Number IRB-CISR 2005-06-01 |
The Canadian International Trade Tribunal (the Tribunal) (Ellen Fry, Presiding Member) has reviewed the complaint submitted on behalf of The Masha Krupp Translation Group Ltd. (Masha Krupp) on August 31, 2005, and has decided not to initiate an inquiry into this complaint.
Masha Krupp alleged that the Immigration and Refugee Board (IRB): (1) incorrectly amended the Request for Proposal (RFP) by: (a) publishing, on MERX, the extended closing date and time of the RFP after the original closing date and time had passed; and (b) including significant changes to the requirements after the published closing date and time of the RFP had passed; (2) issued an RFP, as amended, that favours individual bidders and discriminates against firms; (3) did not respond promptly or clearly to its questions and requests; and (4) gave contradictory and confusing instructions with respect to point of contact.
Subsection 6(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (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.
Subsection 7(1)(c) of the Regulations reads, in part, that the Tribunal shall, within five working days after the day on which the complaint is filed, determine whether “the information provided by the complainant … discloses 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”.
According to the complaint, the RFP was to close on July 19, 2005, at 2:00 p.m., however, RFP amendments 1 & 2 were sent together by e-mail from MERX on July 19, 2005, at 1:21 p.m. which amended the RFP by (1) revising some requirements and (2) extending the closing date to August 17, 2005. Masha Krupp indicated that, while it was not able to order or print the amendments off the MERX site until July 20, 2005, it was able to view, on July 19, 2005, the information contained in the amendments on screen. With respect to grounds (1) and (2) of the complaint, the Tribunal is of the view that Masha Krupp knew or reasonably should have known its basis of complaint on July 19 or 20, 2005, at the latest, when it received amendment number 2. According to the complaint, Masha Krupp filed an objection with the IRB on July 19 and 20, 2005. The Tribunal considers that Masha Krupp received a denial of relief from the IRB on July 22, 2005, when it received RFP amendment 5, specifically the answers to questions 1 and 3. The complaint was not filed with the Tribunal until August 31, 2005. The Tribunal therefore considers grounds (1) and (2) of the complaint to have been filed outside of the prescribed time limits and cannot accept these grounds of complaint for inquiry.
Regarding ground (3) of the complaint, the Tribunal notes that Masha Krupp sent in several questions to the Project Authority related to the RFP and the procurement process. The IRB responded to Masha Krupp’s questions specifically as follows:
- amendment 5 issued on July 22, 2005, addressed questions sent in on July 21, 2005
- amendment 6 issued on August 12, 2005, addressed questions sent in on July 26, 2005 and August 3, 2005, with the exception of Masha Krupp’s question number 6 of July 26, 2005
- Amendment 7 also issued on August 12, 2005, addressed questions sent in on August 9, 2005
The Tribunal considers the questions posed by Masha Krupp as “objections” as they raise issues concerning the contents of the RFP and the procurement process. The Tribunal notes that Masha Krupp also sent a letter to the Acting Director General of the Communication and Executive Services Branch of the IRB on August 12, 2005, but is of the view that this letter does not raise any new issues. The Tribunal considers that denial of relief was given by the IRB when it responded to each of Masha Krupp’s questions, which, at the latest was August 12, 2005. The complaint was not filed with the Tribunal until August 31, 2005. The Tribunal therefore considers ground (3) of the complaint, other than question 6 of July 26, 2005, to have been filed outside of the prescribed time limits and can only accept this ground of complaint for inquiry insofar as it relates to question 6 of July 26, 2005.
The amendments to the RFP appear to indicate that question 6 was not responded to by the IRB. However, in the Tribunal's view, the apparent discrepancy between the July 14th date of the amendment and its July 19th publishing date does not in itself disclose a reasonable indication that the procurement has not been carried out in accordance with the applicable trade agreements.
With respect to ground (4) of the complaint, the Tribunal is of the opinion that Masha Krupp knew or reasonably should have known its basis of complaint on July 19 or 20, 2005, at the latest, when it received amendment number 2 indicating that bidders are to direct any questions to the contract authority indicated in the e-mail. According to the complaint, Masha Krupp filed an objection with the IRB on July 20, 2005. The Tribunal considers that Masha Krupp received a denial of relief from the IRB on July 21, 2005, when it received RFP amendment 4, specifically Part 1: Communication with the IRB Personnel and the Project Authority. The complaint was not filed with the Tribunal until August 31, 2005. The Tribunal therefore considers ground (4) of the complaint to have been filed outside of the prescribed time limits and cannot accept this ground of complaint for inquiry.
Consequently, while some events in the procurement process may not have been handled as rigorously as they should have been, the Tribunal will not conduct an inquiry into this complaint. The Tribunal considers the matter closed.
Yours sincerely,
Hélène Nadeau
Secretary