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TABLE OF CONTENTS

• DETERMINATION OF THE TRIBUNAL
• STATEMENT OF REASONS
• • COMPLAINT
  • PROCUREMENT PROCESS
  • PRELIMINARY MATTERS
  • TRIBUNAL’S ANALYSIS
  • • Costs
  • DETERMINATION OF THE TRIBUNAL

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

AND FURTHER TO a decision to conduct an inquiry into the complaint pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN
FORREST GREEN RESOURCE MANAGEMENT CORP.	Complainant
AND
THE CANADA BORDER SERVICES AGENCY	Government Institution

Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is not valid.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards the Canada Border Services Agency its reasonable costs incurred in responding to the complaint, which costs are to be paid by Forrest Green Resource Management Corp. Pursuant to section 4.1 and Appendix A of the Guideline for Fixing Costs in Procurement Complaint Proceedings, the Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Canadian International Trade Tribunal, as contemplated in section 4.2 of the Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal retains jurisdiction to establish the final amount of the award.

Dominique Laporte
Dominique Laporte
Secretary

Tribunal Member:	Jason W. Downey, Presiding Member
Director:	Randolph W. Heggart
Senior Investigators:	Cathy Turner Michelle Mascoll
Counsel for the Tribunal:	Nick Covelli
Complainant:	Forrest Green Resource Management Corp.
Counsel for the Complainant:	Riyaz Dattu Kevin Glass Devin Doyle
Government Institution:	Canada Border Services Agency
Counsel for the Government Institution:	Agnieszka Zagorska

Please address all communications to:

COMPLAINT

1. On April 7, 2010, Forrest Green Resource Management Corp. (Forrest Green) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ concerning a procurement (Solicitation No. 1000279086) by the Canada Border Services Agency (CBSA) for the provision of credit reporting services.

2. Forrest Green alleged that the CBSA did not evaluate its proposal in accordance with the provisions of the tender documents. Forrest Green requested, as a remedy, that the Tribunal recommend that the CBSA re-issue the solicitation. It also requested the reimbursement of its reasonable costs incurred in preparing and proceeding with the complaint and its bid preparation costs.

3. On April 15, 2010, the Tribunal informed the parties that the complaint had been accepted, in part, for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.²

4. The Tribunal did not issue a postponement of award of contract order pursuant to subsection 30.13(3) of the CITT Act, since the evidence on file indicated that a contract had already been issued. In a letter dated April 20, 2010, the CBSA confirmed to the Tribunal that a contract had been awarded to Equifax Canada Inc. (Equifax).

5. On May 10, 2010, the CBSA filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules.³

6. On May 31, 2010, pursuant to rule 104 of the Rules, Forrest Green filed its comments on the GIR.

7. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that an oral hearing pursuant to subrule 105(1) of the Rules was not required and, pursuant to paragraph 25(c), disposed of the complaint on the basis of the written submissions.

PROCUREMENT PROCESS

8. On December 23, 2009, the CBSA issued a Request for Proposal (RFP) for the provision of credit reporting services.

9. On January 25 and 27, 2010, Forrest Green sent e-mails to the CBSA expressing its concerns with regard to the mandatory requirements.

10. On February 8, 2010, the CBSA issued amendment No. 2 to the RFP, which included changes to the mandatory technical criteria, the statement of work and the financial proposal/basis of payment.

11. In this second amendment to the RFP, the CBSA reduced the estimated number of credit checks per month from an average of 1,700 to an average of 1,400.⁴

12. Bids closed on February 22, 2010.

13. The CBSA received three proposals. Both Forrest Green and Equifax met the mandatory requirements of the RFP, while another bidder did not. On March 18, 2010, the CBSA advised Forrest Green that the contract had been awarded to Equifax.

14. On March 22, 2010, Forrest Green sent an e-mail to the CBSA inquiring as to how the total contract price had been calculated.

15. On March 23, 2010, the CBSA advised Forrest Green as follows: “The Contract price includes a cushion to allow for additional queries if needed and is for 3 years. It does not represent the 1,700 queries indicated in the RFP as it was an estimate for funding.”⁵

16. In a reply e-mail that same day, Forrest Green questioned whether the contract had been awarded based on historic volumes to which only Equifax would have access rather than on the volumes described in the RFP. The CBSA replied as follows: “The historic volumes were not higher than described. It is still anticipated that the 1,700 queries per month are valid, but it is much easier and more efficient to provide for contingencies in advance as it reduces administration problems.”⁶

17. On April 7, 2010, Forrest Green filed its complaint with the Tribunal.

PRELIMINARY MATTERS

18. In the complaint filed by Forrest Green, there are certain allegations to the effect that the RFP was poorly designed, lacked appropriate definitions and was fraught with difficulties and inaccuracies.

19. Forrest Green also alleged that it had faced a “pattern of discrimination” in previous procurements, which it was again facing with regard to the RFP at issue, preferentially “anchoring” the incumbent in government institutions.

20. The Tribunal will deal with these issues as preliminary matters.

21. 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.”

22. Subsection 6(2) of the Regulations 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.”

23. 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.

24. The Tribunal notes that the CBSA answered questions from Forrest Green regarding the requirements in the RFP before bid closing. The Tribunal also notes that the RFP appears to have been amended following correspondence and input from Forrest Green.

25. The Tribunal is of the view that there was nothing that forced Forrest Green to submit a proposal, or to write its proposal or questions in a certain manner.⁷

26. The Tribunal considers that, if Forrest Green was of the view that there were still problems with the RFP at bid closing, February 22, 2010, in order to meet the requirements of section 6 of the Regulations, it had until March 8, 2010 (i.e. 10 working days after February 22, 2010) either to make an objection to the CBSA or to file a complaint with the Tribunal.

27. According to the complaint, Forrest Green did not make an objection to the CBSA within the required time frame on these grounds of complaint and filed its complaint with the Tribunal on April 7, 2010, which was outside of the required time frame.

28. In IBM Canada Ltd. v. Hewlett-Packard (Canada) Ltd.,⁸ the Federal Court of Appeal reviewed the Tribunal’s approach on this issue and confirmed its validity as follows:

[18] In procurement matters, time is of the essence. . . .

. . .

[20] . . . Therefore, potential suppliers are required not to wait for the attribution of a contract before filing any complaint they might have with respect to the process. They 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. . . .

[21] The Tribunal has made it clear, in the past, that complaints grounded on the interpretation of the terms of an RFP should be made within ten days from the moment the alleged ambiguity or lack of clarity became or normally ought to have become apparent.

29. Accordingly, the Tribunal finds that the complaint, on these grounds, was not filed in a timely manner.

30. As for comments made by Forrest Green to the effect that it had been the object of “past discriminations” or general “unfairness” by procuring entities, the Tribunal declares itself forum non conveniens to deal with such past difficulties. As is stated in subsection 30.14(1) of the CITT Act, in conducting an inquiry, the Tribunal shall limit its considerations to the subject matter of the complaint.

TRIBUNAL’S ANALYSIS

31. Section 30.14 of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of the complaint and, at the conclusion of the inquiry, determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been observed.

32. Section 11 of the Regulations provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, in this instance, is the Agreement on Internal Trade. ⁹

33. Article 506(6) of the AIT provides that “[t]he 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.”

34. Forrest Green alleged that the evaluation process was not proper as the “[a]ward amount is . . . higher than outlined in the RFP.” According to Forrest Green’s calculations, the contract award amount indicates that the contract, or evaluation thereof, was based on a much greater number of reports than indicated in the RFP.

35. Forrest Green also alleged that the incumbent had an advantage because of its knowledge of historic trending data in relation to initial queries and secondary queries, thereby allowing it to tailor its submission accordingly.

36. Forrest Green submitted that the CBSA should have shared the trending data with bidders and that, by disallowing access to this information, the CBSA created confusion in the procurement process, thereby forcing it to file a disadvantageous bid.

37. Article 2.1 of Part 4 of the RFP indicates that the bids “. . . must comply with the requirements of the bid solicitation and meet all mandatory technical evaluation criteria to be declared responsive. The responsive bid with the lowest evaluated price will be recommended for award of a contract.”

38. Annex “C” to amendment No. 2 to the RFP indicates how a bidder was to submit its financial proposal. In particular, it indicated as follows:

The Bidder must provide firm, all inclusive per query rates for the Contract period and Option period. Rates are inclusive of access to the system (user name and password) for approximately 400 users. There will be no additional/extra charge for additional number of users having access to the system.

The total price in the financial proposal was to be the sum of the total price for the initial period and the total price for the option period.

39. The Tribunal finds that the evaluation criteria are clear, that the mandatory requirements are clear and that it is also clear that the responsive bid with the lowest evaluated price would be recommended for contract award.

40. The Tribunal also notes that the evaluation formula was the subject of a question and answer during the solicitation period.¹⁰

41. 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.¹¹ The Tribunal has also made it clear that the onus is on the bidder to seek clarification before submitting an offer.¹²

42. The Tribunal is of the view that the amendments to the RFP were clear. In particular, amendment No. 2 decreased the average number of checks per month from an average of 1,700 to an average of 1,400.

43. The Tribunal notes that the term “average” is used and that, in the GIR, the CBSA submitted that “[t]here was no guarantee of the number of credit checks that would be performed per month under [the] contract as [it] could not predict its operational needs in advance.”

44. As the Tribunal has stated in the past, generally speaking, it is the prerogative of the procuring entity to define its own procurement needs. However, the Tribunal has also indicated that, while the government institution has the right to establish the parameters of an RFP, it must do so reasonably. It does not have licence to establish conditions that are impossible to meet.¹³

45. The Tribunal recognizes that the CBSA’s e-mail of March 23, 2010, may be a source of confusion in this matter. In the e-mail, the CBSA states that “[i]t is still anticipated that the 1,700 queries per month are valid . . .” [emphasis added] when the RFP was amended on February 8, 2010, to provide for an average of 1,400 checks per month.

46. The Tribunal recognizes that this e-mail certainly has the potential to fuel Forrest Green’s doubts to the effect that the incumbent may have had an advantage if it somehow knew that 1,700 checks were more realistic than 1,400.

47. In the GIR, there is a statement that the CBSA procurement officer contacted Forrest Green the very same day, by telephone, in order to rectify the e-mail error, verbally stating that the correct number should in fact read 1,400 instead of 1,700.

48. Forrest Green denies ever having such a conversation.

49. The Tribunal is not impressed by the fleeting nature of this issue.

50. This e-mail was a central consideration in the Tribunal’s decision to initiate the present inquiry, as it clearly spoke of numbers which were different from those found in the final iteration of the RFP.

51. When confronted with verbal conversations, which are neither further documented nor otherwise referred to by either party, except for argumentative purposes in their submissions, it is very difficult, if not impossible, for the Tribunal to properly anchor the facts in its deliberative process.

52. It is unfortunate that the facts are so uncertain on such a central issue.

53. In any event, after a thorough review of the information on file, the Tribunal finds that there is no evidence which can be adduced that the CBSA based its evaluation on criteria other than those contained in the RFP.

54. The Tribunal has stated in the past 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.¹⁴

55. With respect to Forrest Green’s allegation that the incumbent had an unfair advantage, the Tribunal notes that the CBSA used a competitive procurement process and that it was proper, in this case, for the CBSA not to reveal proprietary information belonging to the incumbent. As mentioned above, the RFP was clear. The initial and secondary query processes were well explained and non-ambiguous. Again, the onus is on the bidder to ensure that it understands the requirements.

56. In light of the above, the Tribunal finds that the CBSA evaluated Forrest Green’s proposal in accordance with the provisions of the RFP. Therefore, the complaint is not valid.

Costs

57. The Tribunal awards the CBSA its reasonable costs incurred in responding to the complaint.

58. In determining the amount of the cost award for this complaint case, the Tribunal considered section 30.16 of the CITT Act, along with the Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline), which contemplates classification of the level of complexity of cases based on three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.

59. The procurement was moderately complex; there were various questions posed to the CBSA regarding the requirements in the RFP; and two amendments were issued. The complaint was of low complexity, as it involved only the issue of the evaluation process. The complaint proceedings were also of low complexity, as there were no motions and no interveners. Considering these three factors, the Tribunal’s preliminary view is that this complaint case has an overall complexity level corresponding to the first level of complexity referred to in Appendix A of the Guideline. The Tribunal’s preliminary indication of the amount of the cost award is $1,000.

DETERMINATION OF THE TRIBUNAL

60. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.

61. Pursuant to section 30.16 of the CITT Act, the Tribunal awards the CBSA its reasonable costs incurred in responding to the complaint, which costs are to be paid by Forrest Green.

62. The Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated in the Guideline. The Tribunal retains jurisdiction to establish the final amount of the award.

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

² . S.O.R./93-602 [Regulations].

³ . S.O.R./91-499 [Rules].

⁴ . According to the CBSA in its GIR, the decrease in credit checks was based on the fact that the CBSA had already conducted a large number of credit checks between December 23, 2009, and February 7, 2010, because of its operational needs.

⁵ . According to the CBSA, the maximum value of the contract awarded to Equifax was based on its budget and not on the volume of credit checks performed.

⁶ . According to the CBSA in its GIR, at para.12, the contracting officer explained to Forrest Green in a telephone conversation on or about March 23, 2010, that she had made an error when she quoted 1,700 queries in her e-mail, as she referred in error to the RFP issued on December 23, 2009, and not to amendment No. 2 to the RFP, which contained the updated 1,400 queries.

⁷ . Confidential comments on the GIR at para. 50.

⁸ . 2002 FCA 284 (CanLII).

⁹ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat < http://www.ait-aci.ca/index_en/ait.htm> [AIT]. Annex 1001.1b-1 of the North American Free Trade Agreement, Annex Kbis-01.1-3 of the Canada-Chile Free Trade Agreement and Annex 1401.1-4 of the Canada-Peru Free Trade Agreement, which all use the Common Classification System for classifying services, exclude all classes of services under Category L, “Financial and Related Services”. Annex 4 of Canada’s Appendix 1 to the Agreement on Government Procurement, which provides a listing of services that Canada offers for coverage, does not include any financial services. As such, the procurement is excluded from these trade agreements. Both parties are in agreement that only the AIT applies.

¹⁰ . Confidential complaint, e-mail from the CBSA to Forrest Green.

¹¹ . 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).

¹² . See, for example, Re Complaint Filed by Info-Electronics H P Systems Inc. (2 August 2006), PR-2006-012 (CITT).

¹³ . See, for example, Re Complaint Filed by MTS Allstream Inc. (5 August 2005), PR-2004-061 (CITT) at para. 67.

¹⁴ . See, for example, Re Complaint Filed by Excel Human Resources Inc. (Operating as excelITR) (25 August 2006), PR-2005-058 (CITT) at para. 30.