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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

CTC TRAINCANADA®

AGAINST

THE DEPARTMENT OF HUMAN RESOURCES AND SKILLS DEVELOPMENT

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.

Serge Fréchette
Serge Fréchette
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 procurement (Solicitation No. 9739-09-0009) by the Department of Human Resources and Skills Development (HRSDC) for the provision of training services.

3. ctc TrainCanada® (CTC) alleges that HRSDC improperly awarded a contract to a bidder whose proposal did not meet all the mandatory evaluation criteria set out in the Request for Proposal (RFP).

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.” Subsection 6(2) provides that a potential supplier that 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.”

5. 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.

6. In a letter dated March 17, 2010, which was sent to CTC by e-mail on March 19, 2010, HRSDC advised CTC that, as a result of the evaluation process, its proposal had been ranked second and that a contract had been awarded to Stay Technologies Inc. (Stay), the top-ranked bidder.

7. On March 22, 2010, CTC requested a debriefing and a breakdown of how the points for its proposal were allocated. On March 26, 2010, HRSDC advised CTC of how its total score was calculated. On April 16, 2010, a debriefing took place between HRSDC and CTC. On April 20, 2010, as a follow-up to the debriefing, CTC sent a letter to HRSDC in which it alleged that, according to its research, Stay’s proposal could not have met two of the mandatory evaluation criteria of the RFP. In a letter dated May 20, 2010, HRSDC advised CTC that “. . . all bidders were evaluated consistently in accordance with the evaluation criteria and methodology described in the RFP, including but not limited to the mandatory criteria, M1 and M2.” CTC alleges that it received this letter on May 26, 2010.

8. On June 7, 2010, CTC filed its complaint with the Tribunal.

9. On the basis of the information in the complaint, the Tribunal is of the view that the basis of the complaint became known or reasonably should have become known to CTC on March 19, 2010, when HRSDC sent it a letter that indicated that a contract had been awarded to Stay or, at the latest, on March 22, 2010, when CTC acknowledged receipt of the letter and requested a debriefing. The Tribunal notes that, according to the complaint, the information relied upon by CTC to make an objection to HRSDC—and to ultimately file a complaint with the Tribunal—was obtained on the Internet. There is no indication that this information was difficult to find or that CTC came upon it by chance. To the contrary, CTC appears to have deliberately set out to find the information. Moreover, the complaint seems to indicate that at least some of this information was known by CTC prior to it being notified that a contract had been awarded to Stay.³ In these circumstances, the Tribunal can only conclude that CTC knew, or reasonably should have known, its ground of complaint at the latest on March 22, 2010.

10. Therefore, in order to meet the requirements of subsection 6(2) of the Regulations, CTC would have had to make an objection to HRSDC not later than April 7, 2010 (i.e. 10 working days after March 22, 2010). In its complaint, CTC identifies April 20, 2010, as the date on which an objection was made to HRSDC. However, the information in the complaint suggests that an objection was first made at the debriefing that took place on April 16, 2010.⁴ In any event, it is clear that CTC did not make an objection to HRSDC within 10 working days after March 22, 2010, and therefore did not meet the requirements of subsection 6(2).

11. The Tribunal notes that there was no reason for CTC to wait until the debriefing, on April 16, 2010, to voice its objection to HRSDC. As stated above, CTC knew, or reasonably should have known, its ground of complaint at the latest on March 22, 2010. Given its knowledge that a contract had been awarded to Stay, CTC had to assume that Stay’s proposal had been found to meet all the mandatory evaluation criteria. At that time, CTC was in possession of sufficient information to enable it to make an objection to HRSDC. It could not wait for the debriefing in the hope that it would learn further details regarding Stay’s proposal and that these details would either confirm or deny the information that it already possessed. As stated by the Federal Court of Appeal in IBM Canada Ltd. v. Hewlett-Packard (Canada) Ltd.,⁵ “[i]n procurement matters, time is of the essence. . . .  Potential suppliers . . . are expected to keep a constant vigil and to react as soon as they become aware or reasonably should have become aware of a flaw in the process.”

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

DECISION

13. 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 . CTC claims that Stay does not meet mandatory evaluation criterion M1 because it does “. . . not currently have (or had in 2009) a public schedule available on [its] website . . . .” This appears to indicate that CTC had at least some knowledge of Stay’s activities in 2009 (i.e. prior to the contract being awarded to Stay).

⁴ . While CTC did request a debriefing from HRSDC on March 22, 2010, there is nothing in the complaint which indicates that it also made an objection at that time.

⁵ . 2002 FCA 284 (Can LII) at paras. 18, 20.