EFJOHNSON
Determinations
EFJOHNSON
File No. PR-2006-006
TABLE OF CONTENTS
BY FACSIMILE
April 26, 2006
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| Re: |
Solicitation Number M9010-062685/A |
The Canadian International Trade Tribunal (the Tribunal) (Panel: Ellen Fry, Presiding Member; Elaine Feldman, Member; Serge Fréchette, Member) has reviewed the complaint submitted on April 12, 2006, on behalf of EFJohnson and has decided not to conduct an inquiry into this complaint.
The Tribunal notes that the goods being procured appear to fall within Federal Supply Classification (FSC) group 58. Paragraph 1(c) of the Schedule of Canada of the General Notes of Annex 1001.2b of the North American Free Trade Agreement specifically provides that the Agreement does not apply to the procurement of goods falling within FSC group 58. Similarly the General Notes of Canada’s Schedule to the Agreement on Government Procurement indicates that this agreement does not apply to FSC group 58. Therefore, the Tribunal concludes that only the Agreement on Internal Trade (AIT) appears to apply to this solicitation.
The AIT is a domestic agreement between Canada's federal government and its provincial and territorial governments. To have standing under the AIT, a complainant must be a "Canadian supplier". Article 518 of the AIT defines "Canadian supplier" as a "supplier that has a place of business in Canada". It also defines "place of business" as "an establishment where a supplier conducts activities on a permanent basis that is clearly identified by name and accessible during normal working hours". The Tribunal notes that EFJohnson’s proposal included a name and Canadian telephone number for the “Territory Sales Canada”. However, neither the proposal nor the complaint contained evidence of a permanent establishment -- used in association with the Canadian telephone number -- that was clearly identified by name and accessible during normal working hours. Thus, the Tribunal does not have information to indicate that EFJohnson has standing to complain under the AIT.
Moreover, even if EFJohnson were to have standing with respect to the AIT, the Tribunal does not find a reasonable indication that EFJohnson’s proposal was improperly disqualified. Subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (the Regulations) sets out three conditions that must be satisfied before the Tribunal may conduct an inquiry in respect of a complaint. One of these conditions is that the complaint must disclose “a reasonable indication that the procurement has not been carried out in accordance with” the AIT.
The Tribunal notes that section 7.4 of the RFP states that “full service documentation must be provided” and that “the content of this (these) maintenance manual(s) shall include: …[a] Symptom/solution guide"(7.4.6); and a "troubleshooting guide” (7.4.7). The Tribunal also notes that the last paragraph of section I of part 3 of the RFP states that “the service or maintenance manual(s), including any optional accessory manual(s) unique to the model of equipment offered, shall accompany your technical proposal”.
EFJohnson claimed that the sections identified in 7.4.6 and 7.4.7 were not part of its standard manual at the time of submission, but that by stating that it was “compliant” for both criteria, EFJohnson agreed to provide PWGSC with the required documentation. EFJohnson also claimed that the solicitation did not state that the manual submitted with the technical proposal needed to have these sections completed at the time of submission.
The Tribunal disagrees. The RFP is clear in its requirement that the technical proposal include at the time of submission a manual, or set of manuals, addressing all sections of criteria 7.4. Given that EFJohnson did not include the documentation required by sections 7.4.6 and 7.4.7, the Tribunal finds that PWGSC’s decision to disqualify the proposal was consistent with the wording of the RFP.
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