PSC THE PUBLIC SECTOR COMPANY LIMITED
Determinations
PSC THE PUBLIC SECTOR COMPANY LIMITED
File No. PR-2005-039
TABLE OF CONTENTS
BY FACSIMILE
December 19, 2005
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| Re: |
Solicitation Number A1632-11/20-05-6019 |
The Canadian International Trade Tribunal (the Tribunal) (Presiding Member: Ellen Fry) has reviewed the complaint submitted on December 14, 2005, on behalf of PSC The Public Sector Company Limited (PSC), 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 first becomes aware of, or should have become aware of, its ground of complaint either to object to the contracting authority - in this case the Department of Indian Affairs and Northern Development (DIAND) – or to file a complaint with the Tribunal. In the event that a complainant has filed its objection with the contracting authority in a timely manner, and the contracting authority denies the objection, the complainant has 10 working days from when it received this denial to file its complaint with the Tribunal.
PSC’s complaint raises three different grounds of complaint: the first alleges that the mandatory requirements of the request for proposals (RFP) provided an unfair advantage to another company with which DIAND had previously contracted; the second is that DIAND did not provide complete information on the process to be followed in deciding how many Standing Offers it would be issuing; and the third is that DIAND did not promptly provide information regarding the identity of the above noted contractor or the number of contracts that had been awarded to it during the past five years.
Regarding the first ground of complaint; that the RFP provided an unfair advantage to another company, the Tribunal notes that, according to Tab 4 of the complaint, PSC was informed of the name of the company in the morning of November 28, 2005. In order to be considered timely, an objection would then have had to have been made to DIAND, or a complaint filed with the Tribunal, within 10 working days of this date, i.e. by no later than December 12, 2005. As the complaint was not filed until December 14, 2005, the Tribunal finds that this ground of complaint has not been filed within the required time limits established by section 6 of the Regulations.
Regarding the second ground of complaint; that DIAND did not provide complete information on the process to be followed in deciding how many Standing Offers it would be awarding, the Tribunal notes that the RFP contained the solicitation’s “Selection and Evaluation Criteria” and that all bidders were advised, in “Series Three Questions and Answers” that DIAND intended to issue 1 or 2 standing offers. While the Tribunal does not know when PSC became aware of the contents of “Series Three Questions and Answers”, this would clearly have been on or before November 17, 2005, given that the Series Three Questions and Answers stated that they were provided to assist in submitting bids due by November 17, 2005. Accordingly, PSC knew by November 17, 2005, at the latest, the standing offer award methodology and that 1 or 2 standing offers were to be issued. In order for this ground of complaint to be timely, it would have had to have been filed with the Tribunal by December 2, 2005. As the complaint was not filed until December 14, 2005, the Tribunal finds that this ground of complaint has not been filed within the required time limits established by section 6 of the Regulations.
Subsection 7(1)(c) of the Canadian International Trade Tribunal Procurement Inquiry 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”.
Regarding the third ground of complaint; that DIAND did not promptly provide information regarding the identity of the company previously contracted with or the number of contracts that had been awarded to it during the past five years, the Tribunal notes that DIAND provided PSC with the name of its previous contractor on November 28, 2005. PSC asked several questions to DIAND by e-mail in relation to this issue, each of which received a response promptly, within several days. Although DIAND's response of November 30, 2005, was only an interim response, the Tribunal does not consider that there is a reasonable indication that it violated the NAFTA requirement. Accordingly, the Tribunal does not consider that there is a reasonable indication that DIAND violated paragraph 1013(2)(b) of NAFTA. The Tribunal also notes that as discussed in relation to the first ground of the complaint, the allegation of unfair advantage to the previous contractor was filed outside of the allowable timeframe.
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