SURESPAN CONSTRUCTION LTD.
Determinations
SURESPAN CONSTRUCTION LTD.
File No. PR-2007-011
TABLE OF CONTENTS
BY FACSIMILE
May 8, 2007
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| Subject: |
Solicitation No. E0211-060103/A |
The Canadian International Trade Tribunal (the Tribunal) (Panel: Serge Fréchette, Presiding Member; Ellen Fry and Meriel V.M. Bradford, Members) has reviewed the complaint submitted on behalf of Surespan Construction Ltd. (Surespan) on April 24, 2007, and has decided not to initiate an inquiry into the complaint.
Surespan alleged that the Department of Public Works and Government Services (PWGSC) improperly rejected its proposal due to its proposal’s non-compliance with a criterion that was not mandatory. Surespan submitted that it was not a mandatory requirement of the Invitation to Tender (ITT) to include a signed cover sheet with its bid or, if it was, the failure to sign the cover sheet was an insignificant omission of form and did not render its proposal non-compliant. Surespan also submitted that, if PWGSC felt that there was such an irregularity, it was required, in good faith, to determine the significance of that defect and decide whether or not to waive it. Surespan also alleged that PWGSC did not participate in an informal dispute resolution process to resolve the problem.
Paragraph 7(1)(c) of the Canadian International Trade Tribunal Procurement Inquiry 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 of Chapter Ten of the North American Free Trade Agreement, Chapter Five of the Agreement on Internal Trade (AIT) or the Agreement on Government Procurement (AGP) applies.
Page 22 of the ITT indicates that compliance with the terms and conditions contained in the tender document was mandatory and that failure to comply with them would render a submission non-compliant. Subsection 3.1 of the General Instructions to Tenderers (R0001T) of the Standard Acquisition Clauses and Conditions, incorporated into the ITT by reference, requires that the signature(s) of the authorized signatory(ies) be affixed to the front page on the ITT and that the names(s) and title(s) be typed or printed in the space provided. The Tribunal considers that this provision clearly indicates that, as a mandatory requirement, a proposal had to include a signed front page of the ITT in order for it to be considered compliant. In addition, page 15 of the ITT entitled “Tender Form - Combined” included an instruction that the tender form, duly completed, and the signed front page of the ITT be enclosed and sealed in an envelope provided by the tenderer, and that the envelope be addressed and submitted to the office designated for the receipt of tenders. Surespan acknowledges that it did not provide such a form.
Regarding Surespan’s argument that the omission of the signed front page of the ITT was an insignificant omission of form and ought to have been waived by PWGSC, the Tribunal has reviewed Surespan’s submission and finds no reasonable indication that the requirement was not mandatory or that Surespan met the substance of the obligation in another part of its proposal. The Tribunal is of the opinion that PWGSC properly followed the terms of the ITT when it declared Surespan’s proposal non-compliant.
Regarding the second ground of complaint, i.e. that PWGSC did not participate in an informal dispute resolution process, Surespan was informed on March 27, 2007, of the reason for the rejection of its proposal. On March 29, 2007, Surespan made an objection to PWGSC concerning that decision. In its April 10, 2007, response, PWGSC denied the objection and advised Surespan that its bid did not comply with the mandatory requirements of the ITT. The Tribunal notes that the trade agreements encourage suppliers to seek a resolution with the government and that the government, in turn, must accord fair, impartial and timely consideration to those submissions. After carefully considering the content of Surespan’s objection and PWGSC’s answer, the Tribunal finds no indication that PWGSC failed to meet the relevant obligations.
Accordingly, the Tribunal finds that Surespan’s complaint does not disclose a reasonable indication that the procurement was not conducted in accordance with the applicable trade agreements. Therefore, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.
Yours sincerely,
Susanne Grimes
Acting Secretary