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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

LES ENTREPRISES ÉLECTRIQUES YVAN DUBUC LTÉE

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.

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. EP077-103432/B) by the Department of Public Works and Government Services (PWGSC) for the rental and maintenance of a generator.

3. Les Entreprises Électriques Yvan Dubuc Ltée (Dubuc) alleged that the tender documentation was not clear concerning the obligation to provide supporting documents with its proposal and that PWGSC should have contacted it and asked for information before rejecting its proposal.

4. On May 11, 2010, PWGSC issued a Request for Proposal (RFP) for the rental and maintenance of a 450-kW generator for a 30-month period. Bids closed on June 4, 2010.

5. On July 8, 2010, PWGSC sent a letter to Dubuc stating that its proposal did not meet all the mandatory requirements of the RFP. According to the letter, the supporting documents relating to the size of the circuit breaker, the maintenance and the service contract for the generator were not clear. The letter also indicated that a contract in the amount of $182,619.90, excluding taxes, had been awarded to GAL Power Systems.

6. According to the complaint, Dubuc made an objection to PWGSC on July 9, 2010. However, the complaint does not mention the nature of the objection, the remedy requested or if PWGSC responded to the objection.

7. On July 15, 2010, Dubuc filed its complaint with the Tribunal.

8. 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 conducted 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 Chapter Kbis of the Canada-Chile Free Trade Agreement ⁶ or Chapter 14 of the Canada-Peru Free Trade Agreement ⁷ applies. In this case, all trade agreements apply except the AGP, since the value of the procurement is below the applicable monetary threshold under that agreement.⁸

9. 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.”

10. Article 1013(1)(h) of NAFTA provides that “[w]here an entity provides tender documentation to suppliers, the documentation shall contain . . . the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders . . . .”

11. Article 1015(4)(a) of NAFTA also provides that, “to be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation . . . .”

12. The CCFTA and the CPFTA also contain provisions similar to those found in NAFTA noted above.

13. Article 2.1 of Part 2 of the RFP reads as follows:

THE TECHNICAL/DESCRIPTIVE DOCUMENTS REQUESTED AT ANNEX B MUST BE RECEIVED WITH THE BID. FAILURE TO DO SO WILL RENDER THE BID NON-RESPONSIVE.

[Translation]

14. Article 1 of Part 3 of the RFP reads as follows:

SECTION I: TECHNICAL BID (2 COPIES)

In their technical bids, bidders must explain and demonstrate how they intend to meet the requirements listed in Annex B – Minimum Performance Requirements

[Translation]

15. Article 1(b) of Part 4 of the RFP reads as follows:

All bids must be completed in full and provide all the information requested in the bid solicitation to enable a complete evaluation.

[Translation]

16. Annex B of the RFP reads as follows:

Bidders must state for each minimum performance requirement listed below if the offered product “meets” or “does not meet” the criteria and provide supporting documents for each case. Bidders are required to indicate the article number in their supporting document, showing clearly that the specifications meet or exceed the minimum requirements or writing N/A if the documentation is not available.

[Translation]

17. Items 3, 5 and 6 of the minimum performance requirements in Annex B of the RFP respectively require the “provision of a maintenance contract” [translation], a “600-A circuit breaker” [translation] and “emergency services 24 hours a day, 7 days a week” [translation].

18. In Info-Electronics H P Systems Inc.,⁹ the Tribunal stated the following:

23. 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. The Tribunal has also made it clear that the bidder bears the onus to seek clarification before submitting an offer. 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.

[Footnotes omitted]

19. According to the Tribunal, the tender documents in this case are clear. Bidders were required to explain and demonstrate how they intended to meet the requirements listed in Annex B of the RFP and to provide supporting documents for each of these requirements, as failure to do so would render their bids non-responsive. Even though Dubuc’s technical bid indicated that it met the criteria stated at items 3, 5 and 6 of the minimum performance requirements in Annex B of the RFP, the Tribunal notes that the bid did not contain any supporting documents relating to those requirements or any explanation and demonstration of the manner in which Dubuc intended to meet those requirements.

20. Concerning Dubuc’s assertion that PWGSC should have contacted it to obtain information before rejecting its proposal, the Tribunal notes that, although a procuring entity can, in some circumstances, seek clarifications on a particular aspect of a proposal, it is not under any duty to do so.¹⁰ Furthermore, it is important to establish a distinction between, on the one hand, a “clarification” and, on the other, a substantive “revision” to a proposal.¹¹ In this case, the Tribunal is of the view that allowing Dubuc to provide supporting documents and explanations relating to items 3, 5 and 6 of the minimum performance requirements in Annex B of the RFP after the bid closing date would constitute a substantive revision of its proposal and, therefore, would not be permitted.

21. Upon review, the Tribunal finds that the complaint contains no evidence that the evaluators did not properly apply themselves in evaluating Dubuc’s proposal and determining that it did not meet all the mandatory requirements of the RFP. Therefore, the Tribunal finds that the complaint does not disclose a reasonable indication that the procurement has not been conducted 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]. Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.

⁷ . Free Trade Agreement between Canada and the Republic of Peru, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-... (entered into force 1 August 2009) [CPFTA].

⁸ . The monetary threshold for procurements subject to the AGP, which is $221,300 for goods and services, was not reached in this case.

⁹ . Re Complaint Filed by Info-Electronics H P Systems Inc. (2 August 2006), PR-2006-012 (CITT).

¹⁰ . See Re Complaint Filed by IBM Canada Limited, PricewaterhouseCoopers LLP and the Centre for Trade Policy and Law at Carleton University (10 April 2003), PR-2002-040 (CITT) at 15.

¹¹ . See Re Complaint Filed by Bell Mobility (14 July 2004), PR-2004-004 (CITT) at 8-9.