SIVA & ASSOCIATES INC.
Determinations
SIVA & ASSOCIATES INC.
File No. PR-2007-073
TABLE OF CONTENTS
BY FACSIMILE
December 21, 2007
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| Subject: |
Solicitation No. W8482-085077/A |
The Canadian International Trade Tribunal (the Tribunal) (James A. Ogilvy, Presiding Member) has reviewed the complaint filed by Siva & Associates Inc. (Siva) on December 13, 2007, and has decided not to initiate an inquiry into the complaint.
Siva alleged that the Department of Public Works and Government Services (PWGSC) improperly favoured existing suppliers by requiring bidders to produce shock test results for all valve sizes.
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) 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 the date on which it first becomes aware of its ground of complaint either to object to the contracting authority or to file a complaint with the Tribunal. If a complainant objects to the contracting authority in a timely manner and has actual or constructive knowledge of the denial of relief, the complainant may then file a complaint with the Tribunal within 10 working days.
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 of Chapter Ten of the North American Free Trade Agreement (NAFTA), Chapter Five of the Agreement on Internal Trade (AIT) or the Agreement on Government Procurement (AGP) applies. In this case only the AIT and NAFTA apply. The value of the procurement does not meet the threshold necessary for coverage under the AGP.
In reviewing the evidence on the file, the Tribunal finds that each item description clearly contained the following sentence:
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It is a mandatory requirement that all products proposed have successfully met the testing requirements of specification D-03-003-007/SG-000 Grade 1 Type A. A copy of specification D-03-003-007/SG-000 Grade 1 Type A is in your possession.
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The Tribunal also notes that Appendix “A” to the Request for Proposal (RFP), which contained the basis of selection criteria, stated the following:
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1.2) Evaluation criteria
Submission of a shock test report/acceptable drawing with certification of shock testing. Products proposed must have successfully met the testing requirements of Specification D-03-003-007/SG-000 Grade 1 Type A, prior to bid closing. If bidder is offering an equivalent substitute in form, fit, function and quality to the Original Equipment Manufacturer (OEM) parts specified herein, the bidder must provide proof by either providing a copy of the successful shock test report or an acceptable drawing with certification of shock testing with their bid or within seven (7) days upon written request of the contracting authority. Bids unable to meet this requirement will be given no further consideration. -MANDATORY
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It is understood by the parties submitting proposals, that to be considered responsive, a proposal must meet all the mandatory requirements. Failure to comply with mandatory criteria will render your proposal non-responsive.
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It is clear to the Tribunal that PWGSC required bidders either to provide shock test certification when their proposals were submitted or to provide the certification within seven days of being requested to do so. The Tribunal considers that the date on which Siva obtained and read the RFP is the date on which Siva knew, or reasonably should have known, of the requirement for shock testing. While the complaint does not provide the Tribunal with the specific date on which Siva first obtained the RFP, it is clear to the Tribunal that, in order for DMI Young & Cunningham Limited (DMI) to have provided Siva with a facsimile quote for the items on November 6, 2007, Siva must have provided DMI with a product description on or prior to that date. The Tribunal also notes that DMI brought this very issue to Siva’s attention in that same facsimile quote and advised Siva that it would be willing to quote a price for such testing if Siva requested it. The Tribunal therefore finds that Siva should reasonably have known its ground of complaint on November 6, 2007. Accordingly, Siva’s complaint to the Tribunal, or an objection to PWGSC, would need to have been made within 10 working days of that date, or by November 21, 2007. Given that the complaint was not filed until December 13, 2007, it was filed outside the time limit specified in section 6 of the Regulations, and the Tribunal will not conduct an inquiry into this element of the complaint.
Furthermore, the Tribunal notes that Siva does not dispute PWGSC’s position that Siva failed to meet the mandatory requirement set out in the RFP relative to providing shock test certification within the specified time frame.
In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.
Yours sincerely,
Hélène Nadeau
Secretary