---

---

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
• • DECISION

---

IN THE MATTER OF a complaint filed under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47

BY

VALLEY ASSOCIATES INC.

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

Pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal has decided not to conduct an inquiry into the complaint.

Hélène Nadeau
Hélène Nadeau
Secretary

1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations,² a potential supplier may file a complaint with the Canadian International Trade Tribunal (the Tribunal) concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint. Moreover, subsection 30.13(1) of the CITT Act provides that, subject to the Regulations, after the Tribunal determines that a complaint complies with subsection 30.11(2), it shall decide whether to conduct an inquiry into the complaint.

2. The complaint relates to a procurement by the Department of Public Works and Government Services (PWGSC) for the provision of special operations vehicles for the Department of National Defence (DND).

3. Valley Associates Inc. (Valley) opposes PWGSC’s decision to prevent it from continuing in the formal bidding process. It requested that it be allowed to provide clarifications of the points raised during the debriefing and that it be permitted to offer a formal proposal for the eventual Request for Proposal.

4. 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,³ Chapter Five of the Agreement on Internal Trade ⁴ or the Agreement on Government Procurement ⁵ applies. In this case, only the AIT applies, as military trucks and tactical vehicles for DND are excluded from NAFTA and the AGP.

5. Valley submitted that it was expecting a visit from Government of Canada representatives to review its proposal and discuss the technical aspects of its vehicle.

6. The solicitation document reads as follows:

. . .

2.1.1 Phase 1 – Solicitation of Interest and Qualification (SOIQ). This first phase will qualify bidders who are identified as capable of undertaking either the SR [special reconnaissance] variant requirement, the QR [quick reaction] variant requirement, or both, by meeting all the relevant mandatory technical requirements listed in Annex A . . . . Only respondents demonstrating full compliance with the mandatory requirements pertaining to the variants(s) of interest presented in Annex A will be invited to participate in Phase 2. The information provided in Phase 1 is not a binding offer but rather a basis for establishing a list of qualified bidders.

2.1.2. A visit by GoC representatives to each qualified bidder site may subsequently be arranged. The site visits will offer an opportunity for technical discussions, an initial view of each bidder’s baseline product and limited vehicle test-drives . . . .

. . .

5.1 . . . Canada is under no obligation to seek clarification in order to properly assess the proposed SOV [special operations vehicles] product(s) and to qualify bidders.

. . .

[Emphasis added]

7. According to a slide deck submitted with the complaint that was apparently given to Valley at the debriefing by PWGSC on December 1, 2008, Valley’s bid failed on 13 mandatory requirements.

8. Although not specifically identified in the complaint, the Tribunal is of the opinion that, given the nature of the complaint, the most applicable clause in the AIT is Article 506(6), which reads as follows:

. . . The tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria.

9. The Tribunal is of the view that the solicitation clauses referenced above are clear and unambiguous. There were specific mandatory requirements to be met, and the method of evaluation was clearly stipulated.

10. In previous decisions, the Tribunal has made it clear that suppliers bear the onus to respond to and meet the criteria established in a solicitation.⁶ It has also stated that it will not substitute its judgment for that of the evaluators unless the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way.⁷

11. Clause 2.1.1 of the solicitation document stipulates that only respondents demonstrating full compliance with the mandatory requirements pertaining to the variants of interest presented in Annex A of the solicitation will be invited to participate in Phase 2 of the procurement. Clause 2.1.2 stipulates that visits to qualified bidders’ sites may subsequently be arranged. There is no indication that there could be visits to unqualified bidders’ sites.

12. Upon review, the Tribunal finds that the complaint contains no reasonable indication that PWGSC’s evaluation of Valley’s proposal was not conducted in accordance with the mandatory criteria stated in the solicitation document. Therefore, the Tribunal finds that the complaint does not disclose a reasonable indication that the procurement was not carried out in accordance with the applicable trade agreement.

13. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.

DECISION

14. Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.

---

¹ . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].

² . S.O.R./93-602 [Regulations].

³ . North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA].

⁴ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].

⁵ . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].

⁶ . See, for example, Re Complaint Filed by Thomson-CSF Systems Canada Inc. (12 October 2000), PR-2000-010 (CITT); Re Complaint Filed by Canadian Helicopters Limited (19 February 2001), PR-2000-040 (CITT); Re Complaint Filed by WorkLogic Corporation (12 June 2003), PR-2002-057 (CITT).

⁷ . See, for example, Re Complaint Filed by Vita-Tech Laboratories Ltd. (18 January 2006), PR-2005-019 (CITT); Re Complaint Filed by Marcomm Inc. (11 February 2004), PR-2003-051 (CITT).