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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

FLINT PACKAGING PRODUCTS LTD.

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.

André F. Scott
André F. Scott
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. 45045-100024/A) by the Department of Public Works and Government Services (PWGSC) on behalf of Statistics Canada for the purchase of boxes of varying sizes and pallet sheets for the 2011 Census.

3. Flint Packaging Products Ltd. (Flint) alleged that PWGSC improperly evaluated its proposal.

4. On April 21, 2010, PWGSC issued a Request for Proposal (RFP) for boxes for the 2011 Census. The bid closing date was June 2, 2010.

5. On June 14, 2010, PWGSC advised Flint by e-mail that its proposal had been rejected as it did not comply with all the mandatory requirements of the solicitation. More specifically, PWGSC indicated that one of the sample boxes submitted by Flint as part of its proposal did not comply with the requirements of the solicitation. PWGSC also indicated that a contract in the amount of $395,377.24, excluding taxes, had been awarded to Crownhill Packaging Ltd.

6. According to the complaint, Flint made an objection to PWGSC on June 15, 2010, during a telephone conversation and again during subsequent conversations that took place between June 15 and 20, 2010. On July 6, 2010, Flint sent an e-mail to PWGSC which summarized the conversations that had taken place, reiterating its objection.

7. On July 8, 2010, Flint sent an e-mail to PWGSC enquiring as to the status of its objection. According to the information contained in the complaint, there ensued a telephone conversation on July 9, 2010, during which PWGSC advised Flint that, since its proposal had failed to meet all the mandatory requirements of the solicitation, it would not be issued a contract. On July 14, 2010, PWGSC sent an e-mail to Flint reiterating previous conversations, specifically, that one of its sample boxes had failed to comply with the requirements of the solicitation and that it therefore would not be issued a contract.

8. On July 27, 2010, Flint filed its complaint with the Tribunal.

9. 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) states that “[a] potential supplier who has made an objection regarding a procurement relating to a designated contract 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.”

10. 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 relevant 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.

11. The Tribunal finds that Flint knew, or reasonably should have known, the basis of its complaint on June 14, 2010, when it learned that its proposal had been rejected because one of the sample boxes did not comply with the mandatory requirements of the solicitation. The Tribunal further finds that Flint first made an objection to PWGSC on June 15, 2010, during a telephone conversation and that the objection was therefore made in a timely manner. While Flint may only have received a written denial of relief from PWGSC on July 14, 2010, the Tribunal considers that Flint received a firm denial of relief from PWGSC on July 9, 2010, during a telephone conversation. In this regard, the Tribunal notes that, in its e-mail of July 14, 2010, PWGSC makes multiple references to the July 9, 2010, telephone conversation and reiterates that Flint’s proposal failed to comply with the requirements of the solicitation and that it would not be issued a contract. Therefore, in order to meet the requirements of subsection 6(2) of the Regulations, Flint would have had to file its complaint with the Tribunal not later than July 23, 2010 (i.e. 10 working days from July 9, 2010). As Flint only filed its complaint with the Tribunal on July 27, 2010, the Tribunal considers that the complaint was not filed in a timely manner.

12. Even if the complaint had been filed in a timely manner, the Tribunal would not have determined that it discloses, as required by paragraph 7(1)(c) of the Regulations, a reasonable indication that the procurement has not been conducted in accordance with 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 and Chapter 14 of the Canada-Peru Free Trade Agreement,⁷ which are all applicable in this case.

13. In rejecting Flint’s proposal, PWGSC indicated that one of the sample boxes provided by Flint failed to meet the mandatory requirement to have a thickness of 8.8 mm. In its complaint, Flint submitted that had its sample been measured in an uncrushed area of the box, i.e. not at the edges or the scores (folds), it would have met the requirement. It added that it is impossible for a sheet with scores to meet this requirement throughout the sheet.

14. The Tribunal notes that, in its e-mails of June 14 and July 14, 2010, PWGSC clearly stated that the thickness of Flint’s sample “. . . reached a maximum of 7 mm” [emphasis added]. This implies that Flint’s sample failed to meet the requirement to have a thickness of 8.8 mm, regardless of where the measurements were taken. In the absence of any additional evidence (other than Flint’s allegation that its sample met the requirement), the Tribunal is unable to determine that there is a reasonable indication that the procurement has not been conducted in accordance with the applicable trade agreements.

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

DECISION

16. 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>.

⁵ . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm>.

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). 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-... chapter-chapitre-14.aspx> (entered into force 1 August 2009).