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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • DECISION

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

BY

OC TANNER CANADA

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.

Jason W. Downey
Jason W. Downey
Presiding Member

Dominique Laporte
Dominique Laporte
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 Request for a Standing Offer (Solicitation No. 42001-070468/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Treasury Board Secretariat for the management of the Long Service Award Program and the Instant Award Program.

3. OC Tanner Canada (OC Tanner) alleges that PWGSC improperly awarded standing offers to one supplier, whereas multiple suppliers would have provided more choices and better pricing options for departments. In addition, OC Tanner submitted that there should have been a better process in place for reference checks.

4. Subsection 6(1) of the Regulations provides that 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.”

5. 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.”

6. In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become aware, of its ground of complaint to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.

7. On December 29, 2009, PWGSC advised OC Tanner, in writing, that it was not the successful bidder, as its offer did not meet the requirements of the Stage 2 evaluation process. PWGSC’s December 29, 2009, letter also provided OC Tanner with the name of the successful bidder.

8. On December 31, 2009, OC Tanner requested additional information relating to how PWGSC had scored its proposal.

9. On January 18, 2010, PWGSC advised OC Tanner of the points that it had obtained and noted that the required minimum number of points had not been obtained with regard to the reference portion.

10. On January 19, 2010, PWGSC advised OC Tanner of the points that it had obtained for each of its two references. According to the complaint, a debriefing was to take place on January 20, 2010.

11. On May 14, 2010, OC Tanner filed its complaint with the Tribunal.

12. OC Tanner became aware on December 29, 2009, that PWGSC had issued standing offers to one supplier and was informed of the results of the evaluation of its proposal.

13. While OC Tanner did not make an objection to PWGSC regarding the issuance of standing offers to a single supplier, it did make an objection to PWGSC, on December 31, 2009, regarding the evaluation of its proposal. This objection was timely.

14. According to the complaint, a debriefing was to take place on January 20, 2010. There is no indication that this meeting was not held or of what occurred between the time of that meeting and the filing of this complaint. Therefore, the Tribunal considers that the debriefing held on January 20, 2010, amounts to a denial of relief.

15. With respect to OC Tanner’s ground of complaint concerning the issuance of standing offers to one supplier, as no objection was made and the complaint was filed on May 14, 2010, the Tribunal finds that this ground of complaint was filed outside the time limit established in the Regulations.

16. With respect to OC Tanner’s ground of complaint concerning the process used for reference checks, if OC Tanner considered that PWGSC did not conduct the reference checks according to the method indicated in the solicitation documents, in order to meet the requirements of subsection 6(2) of the Regulations, OC Tanner had until February 3, 2010, i.e. 10 working days after January 20, 2010, to file its complaint with the Tribunal.

17. OC Tanner filed its complaint on May 14, 2010. Accordingly, this ground of complaint was filed outside the time limit established in the Regulations.

18. Therefore, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.

DECISION

19. 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].