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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
• • DECISION

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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

CORBEL MANAGEMENT CORP.

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. 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) of the CITT Act, it shall decide whether to conduct an inquiry into the complaint.

2. The complaint relates to a procurement (Solicitation No. 47636-089209/A) by the Department of Public Works and Government Services (PWGSC) for the provision of a low-risk Immigration Holding Centre and related services on behalf of the Canada Border Services Agency (CBSA).

3. Corbel Management Corp. (Corbel) alleges (1) that PWGSC improperly rejected its proposal and (2) that PWGSC improperly refused to extend the deadline for the submission of its bid and that, as a result, Corbel was not treated equally or fairly.

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 the Agreement on Government Procurement ⁵ or Chapter Kbis of the Canada-Chile Free Trade Agreement ⁶ applies. In this case, at a minimum, the AIT applies.⁷

5. On December 10, 2008, PWGSC issued a Request for Proposal (RFP) for the provision of a low-risk immigration holding centre and related services on behalf of the CBSA. The original bid closing date was March 3, 2009. During the solicitation period, there were various amendments to the RFP, including three extensions of the bid closing date. Prior to the issuance of the last amendment, Corbel requested that the closing date be extended to April 29, 2009. On April 8, 2009, PWGSC advised Corbel that “[t]he new and final closing date [would] be Friday April 24^th” and that “[s]hort of a ‘force majeur’ [sic] (an Act of God), there [would] be no more extensions to the RFP.”⁸ On April 15, 2009, PWGSC issued amendment No. 006 to the RFP, which, among other revisions, extended the bid closing date and time to April 24, 2009, at 2:00 p.m.

6. According to Corbel, on April 24, 2009, at approximately 12:30 p.m., one of its representatives was en route to PWGSC’s office to deliver its proposal. However, a serious automobile accident created a gridlock, and the representative was blocked from proceeding. The representative twice contacted PWGSC by cellular telephone to request a short time extension for the delivery of the proposal. These requests were denied by PWGSC. Once the flow of traffic resumed, the representative proceeded immediately to PWGSC’s office. According to Corbel, its proposal arrived at PWGSC’s office at approximately 2:10 p.m. When the representative was finally able to submit the proposal, PWGSC stamped it with a time of “14:44” and made the following handwritten notation on the cover: “LATE BID – RETURNED TO BIDDER”.⁹

7. On April 29, 2009, Corbel sent its proposal by courier to PWGSC and requested that it be accepted. On May 4, 2009, Corbel received a letter from PWGSC dated April 29, 2009, advising Corbel that its bid could not be accepted, as it was originally submitted as a late bid. On the same day, Corbel wrote to PWGSC, the Deputy Minister of Public Safety and the Office of the Procurement Ombudsman to request a review and reconsideration of the matter. On May 13, 2009, PWGSC responded by stating that it found no reason to change its initial finding that Corbel’s proposal was filed late and could therefore not be accepted. On May 19, 2009, Corbel filed its complaint with the Tribunal.

8. Article 501 of the AIT reads as follows:

. . . the purpose of this Chapter is to establish a framework that will ensure equal access to procurement for all Canadian suppliers in order to contribute to a reduction in purchasing costs and the development of a strong economy in a context of transparency and efficiency.

9. Article 504 of the AIT reads as follows:

. . .

2. With respect to the Federal Government, paragraph 1 means that, subject to Article 404 (Legitimate Objectives), it shall not discriminate:

(a) between the goods or services of a particular Province or region, including those goods and services included in construction contracts, and those of any other Province or region; or

(b) between the suppliers of such goods or services of a particular Province or region and those of any other Province or region.

3. Except as otherwise provided in this Chapter, measures that are inconsistent with paragraphs 1 and 2 include, but are not limited to, the following:

. . . 

(c) the timing of events in the tender process so as to prevent suppliers from submitting bids;

. . .

10. Article 506(5) of the AIT reads as follows:

Each Party shall provide suppliers with a reasonable period of time to submit a bid, taking into account the time needed to disseminate the information and the complexity of the procurement.

11. Article 514(2) of the AIT reads as follows:

In order to promote fair, open and impartial procurement procedures, the Federal Government shall adopt and maintain bid protest procedures for procurement covered by this Chapter . . . .

12. Article 518 of the AIT defines “procurement procedures” as “the processes by which suppliers are invited to submit a tender, a proposal, qualification information, or a response to a request for information and includes the ways in which those tenders, proposals or information submissions are treated.”

13. Corbel submitted that PWGSC’s refusal to accept its proposal and its refusal to extend the deadline for the delivery of its proposal have resulted in a breach of the requirements set out in the applicable trade agreements. More specifically, Corbel noted that its grounds of complaint include discrimination, failure to accord impartial treatment, failure to act in an even-handed manner towards all potential bidders, bias and reasonable apprehension of bias, unfair treatment, failure to act in a transparent manner and failure to act in good faith.

14. The Tribunal is of the opinion that the RFP is clear in respect of the date and time by which proposals had to be submitted to PWGSC, as well as in respect of the consequences of not meeting this requirement.

15. Part 2 of the RFP, which is entitled “BIDDER INSTRUCTIONS”, states the following:

1. Standard Instructions, Clauses and Conditions

. . . 

Bidders who submit a bid agree to be bound by the instructions, clauses and conditions of the bid solicitation and accept the clauses and conditions of the resulting contract.

The 2003 (2008-05-12) Standard Instructions – Goods or Services, Competitive Requirements, are incorporated by reference into and form part of the bid solicitation.

. . . 

2. Submission of Bids

Bids must be submitted only to Public Works and Government Services Canada (PWGSC) Bid Receiving Unit by the date, time and place indicated on page 1 of the bid solicitation.

Due to the nature of the bid solicitation, bids transmitted by facsimile to Public Works and Government Services Canada will not be accepted.

. . . 

16. The aforementioned standard instructions read as follows:

05 Late Bids

PWGSC will return bids delivered after the stipulated bid solicitation closing date and time, unless they qualify as a delayed bid as described below.

06 Delayed Bids

. . . 

3. Misrouting, traffic volume, weather disturbances, labour disputes or any other causes for the late delivery of bids are not acceptable reasons for the bid to be accepted by PWGSC.

. . . 

17. Corbel does not dispute the fact that its proposal was submitted after the bid closing time of 2:00 p.m. on April 24, 2009. Therefore, in these circumstances, and in accordance with the terms of the RFP and the standard instructions, the Tribunal is of the view that PWGSC had no choice but to reject Corbel’s proposal. This view is consistent with previous decisions of the Tribunal in relation to cases where bids received after the deadline for the receipt of bids were rejected.¹⁰

18. Upon review, the Tribunal also finds that the information submitted with the complaint does not reasonably indicate that, by refusing to grant its request for an extension, PWGSC breached its duty of inter alia equal treatment and fairness which it owed to Corbel. While Corbel claims that prior extensions were granted by PWGSC to accommodate other competing proponents that were not able to meet the deadline for the submission of bids, the Tribunal notes that these extensions benefited all bidders, including Corbel. Indeed, according to the complaint, Corbel sought to obtain an extension of the closing date to April 29, 2009, but was unsuccessful in its attempt. Therefore, having itself requested a further extension, Corbel cannot claim that it did not benefit from prior extensions. In addition, the Tribunal is of the view that, had PWGSC granted Corbel’s request for an extension shortly before the bid closing time, such an extension would have benefited Corbel only and may well have constituted a basis for a valid complaint before the Tribunal by other bidders.

19. Corbel also submitted that a serious automobile accident impeding traffic is a force majeure which, based on PWGSC’s communication of April 8, 2009, with Corbel, could have justified a further extension of the closing date and time specified in the RFP. According to Black’s Law Dictionary, a force majeure is “. . . [a]n event or effect that can be neither anticipated nor controlled . . . .”¹¹ Accordingly, the Tribunal does not consider that traffic resulting from an automobile accident is an event which cannot be anticipated. Corbel could clearly have left earlier to deliver its proposal in order to guard against such an occurrence. In any event, the Tribunal notes that granting a short extension to accommodate a bidder in these circumstances would be inconsistent with the standard instructions referenced above, which provide that “[m]isrouting, traffic volume, weather disturbances, labour disputes or any other causes for the late delivery of bids are not acceptable reasons for the bid to be accepted by PWGSC.”

20. Finally, the Tribunal finds that the information submitted with the complaint does not support Corbel’s contention that the timing of events in the tender process prevented it from submitting a bid or that it was not provided with a reasonable period of time to submit a bid. In fact, the information in the complaint demonstrates that bidders had over four months to prepare and submit a bid and that the three extensions to the closing date served to benefit all bidders.

21. 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 agreements.

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

DECISION

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

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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 . Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50 (entered into force 5 July 1997) [CCFTA].

⁷ . The AGP, NAFTA and the CCFTA may also apply depending on the precise characterization of the procured services. However, since the provisions of the AGP, NAFTA and the CCFTA invoked by Corbel in its complaint are similar in effect to those of the AIT, also invoked by Corbel, the Tribunal only considered the latter agreement for purposes of making a decision under subsection 30.13(1) of the CITT Act. This should not, in any way, be interpreted to mean that the Tribunal has made a determination that the procured services are not covered by the AGP, NAFTA and the CCFTA.

⁸ . Complaint, tab 3.

⁹ . Complaint, tab 6.

¹⁰ . Re Complaint Filed by GHK Group (4 September 2007), PR-2007-031(CITT); Re Complaint Filed by Promaxis Systems Inc. (11 June 2006), PR-2005-045 (CITT).

¹¹ . Eighth ed., s.v. “force majeure”.