TITAN TACTICAL INC.
Determinations
TITAN TACTICAL INC.
File No. PR-2005-021
TABLE OF CONTENTS
BY FACSIMILE
September 30, 2005
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| Re: |
Solicitation Number W8476-05AM03/A |
The Canadian International Trade Tribunal (the Tribunal) (Presiding Member: Pierre Gosselin) has reviewed the complaint submitted on September 23, 2005, on behalf of Titan Tactical Incorporated (Titan), and has decided not to initiate an inquiry into this complaint.
According to subsection 6(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (the Regulations), 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.” 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.”
In other words, a complainant has 10 working days from when it has been denied relief by the contracting authority – in this case the Department of Public Works and Government Services (PWGSC) - to file a complaint with the Tribunal.
In the event that the complaint is found to be on time, subsection 7(1)(c) of the Regulations requires, 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”.
Titan’s complaint raises two different grounds of complaint: the first relates to PWGSC’s treatment of Titan’s proposal in response to the subject solicitation, and the second relates to PWGSC’s treatment of the proposal of one of Titan’s competitors. Titan alleged that its own proposal should have passed the phase 1 “paper” evaluation and been allowed to participate in the phase 2 field trials. Titan’s allegation with respect to the second ground is that, after reviewing a copy of a competitor’s current product specification for the robot offered by that competitor, it found that there were “a number of material non-compliances with the PWGSC requirement”.
Regarding the first ground of complaint, evidence on the file indicates that Titan was first made aware that its proposal had been rejected on July 7, 2005, when PWGSC sent it the letter advising Titan that its proposal was non-compliant. Titan subsequently sent a clarification letter to PWGSC on July 12, 2005, to which PWGSC responded on July 20, 2005. This second letter from PWGSC clearly stated that PWGSC “cannot accept the contents of your letter [of July 12, 2005…and that...] your proposal will not be given any further consideration.” In order to be considered timely, a complaint would then have had to have been filed with the Tribunal within 10 working days of receipt of PWGSC’s denial of relief letter of July 20, 2005, or by no later than August 4, 2005. As the complaint was not filed with the Tribunal until September 23, 2005, the Tribunal finds that the required time limits established by subsections 6(1) and 6(2) of the Regulations were not respected on this ground of complaint.
Regarding the second ground of complaint, evidence on the file indicates that Titan was made aware, via an e-mail from the PWGSC contracting authority on September 8, 2005, that the phase 1 review of the competitor’s bid had found that bid to be compliant and that PWGSC was proceeding with the phase 2 evaluation. In order to be considered timely, a complaint would then have had to have been filed with the Tribunal within 10 working days of receipt of PWGSC’s denial of relief email of September 8, 2005, or by no later than September 22, 2005. As the complaint was not filed with the Tribunal until September 23, 2005, the Tribunal finds that the required time limits established by subsections 6(1) and 6(2) of the Regulations were not respected on this ground of complaint.
Moreover, in connection with the second ground of complaint, the Tribunal was unable to find any evidence in the complaint regarding the “material non-compliance” of the competitor’s bid. Therefore, even if the complaint had been considered timely on the second ground of complaint, the Tribunal would not have found a reasonable indication of a breach of the relevant trade agreements as required by subsection 7.1(c) of the Regulations, and would not have conducted an inquiry.
In light of the above, the Tribunal will not conduct an inquiry into this complaint and considers the matter closed.
Yours sincerely,
Hélène Nadeau
Secretary