CHESSEN GROUP INC.
Determinations
CHESSEN GROUP INC.
File No. PR-2006-014
TABLE OF CONTENTS
BY FACSIMILE
June 1, 2006
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| Re: |
Solicitation Number 31184-054215/B |
The Canadian International Trade Tribunal (the Tribunal) (Presiding Member: James A. Ogilvy) has reviewed the submissions received on May 23 and 24, 2006, on behalf of Chessen Group Inc. (Chessen) regarding the Department of Public Works and Government Services (PWGSC) Solicitation No. 31184-054215/B on behalf of its client department, the National Research Council (NRC). The Tribunal has decided not to initiate an inquiry into this complaint.
Chessen alleges that PWGSC incorrectly declared its proposal non-compliant. Specifically, Chessen alleges that PWGSC declared its proposal non-compliant with mandatory criteria 3.1.3 and 3.1.5 and that PWGSC did so, not on an assessment of the system proposed, but rather on a requirement to provide references for “similar” systems.
Chessen also alleges that there were grounds for an apprehension of bias and preferential treatment by PWGSC. Specifically Chessen alleges that PWGSC relied on references from a previous solicitation rather than the current one and that PWGSC amended the delivery date stated in the solicitation the day before bids were to close, making the delivery requirement easier for overseas suppliers to fulfill.
Pursuant to subsection 6(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (the Regulations), 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.”
On April 24, 2006, PWGSC advised Chessen that it was not the successful bidder. On May 1, 2006, Chessen requested a debriefing. According to the complaint, PWGSC verbally advised Chessen on May 2, 2006, that, following contacts by the NRC with client references supplied by Chessen, its proposal had been judged non-compliant on the basis that the referenced equipment did not have two features required as mandatory by the specifications, namely “thermocouples” and “shutters”. On May 9, 2006, a debriefing teleconference was held between PWGSC, the NRC and Chessen. According to the complaint, during the teleconference, Chessen was once again advised that its proposal was deemed non-compliant on the basis that the NRC had determined that the proposal failed to meet two mandatory specifications. On May 23, 2006, Chessen filed a submission with the Tribunal and on May 24, 2006, it filed additional documents. Given that it received the final documents on May 24, 2006, the Tribunal considers the complaint to have been filed on that date.
With respect to Chessen’s allegation concerning the evaluation of its proposal, the Tribunal is of the view that Chessen became aware of the basis of its complaint on May 2, 2006, when it received an explanation as to why its proposal was deemed non-compliant. The Tribunal is also of the view that, while the debriefing may have provided Chessen with more detail of the elements of PWGSC’s decision, Chessen did not learn anything fundamentally new during the May 9, 2006, debriefing regarding the reason that its proposal was deemed non-compliant. Thus, in order to be considered timely, a complaint would have to have been filed with the Tribunal or an objection made to PWGSC within 10 working days of May 2, 2006. Since Chessen did not file an objection with PWGSC and filed its complaint with the Tribunal on May 24, 2006, the Tribunal finds that the complaint was not filed within the required time limits established by subsection 6(1) of the Regulations and, therefore, cannot be accepted for inquiry.
Paragraph 7(1)(c) of the Regulations requires that the Tribunal 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.
With respect to Chessen’s allegation of an apprehension of bias, the Tribunal finds, first, that Chessen knew of the change of delivery date when the solicitation closed in February, and that the complaint on this ground is therefore not timely. Secondly, with respect to the allegation that PWGSC relied on references from a previous solicitation rather than the current one, which Chessen claims to have discovered following the debriefing, the Tribunal finds that there is insufficient evidence in the complaint to substantiate the claim. Accordingly, for this ground of complaint, there is no reasonable indication that the procurement has not been carried out in accordance with the applicable trade agreements.
In light of the foregoing, the Tribunal will not conduct an inquiry into this complaint and considers the matter closed.
Yours sincerely,
Hélène Nadeau
Secretary