---

---

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • DECISION

---

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

VECTOR AEROSPACE HELICOPTER SERVICES INC.

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 procurement (Solicitation No. W8485-112481/B) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the repair and overhaul of turboprop engines. The Request for Proposal (RFP) for this solicitation describes the requirement as being for “. . . Operation and Maintenance (O&M), Repair and Overhaul (R&O), modification and/or reduction to spares, at the Contractor’s plant or by Mobile Repair Party (MRP), as well as for Technical Investigations and Engineering Support (TIES) Services, and Advance Accountable Spares (AAS) for the CT64 engine, associated components and accessories of the CC115 Buffalo aircraft.”

3. Vector Aerospace Helicopter Services Inc. (Vector), which was the incumbent service provider, alleged the following:

• the Canadian content requirements of the RFP could not have been met by the successful bidder;
• PWGSC’s evaluation of proposals did not adequately take into consideration Vector’s proven record of success and the risk of transitioning to a new service provider; and
• PWGSC’s evaluation of proposals should have taken into consideration the high transition costs that would result from awarding the contract to a new service provider.

4. On September 27, 2010, PWGSC issued an RFP (Solicitation No. W8485-112481/A) for the repair and overhaul of turboprop engines. Bidding closed on November 30, 2010.

5. On January 27, 2011, PWGSC advised Vector that the proposal that it submitted in response to the RFP, as well as that of the only other bidder, was found to be non-responsive. It further advised Vector that, because the requirement remained substantially the same, it had decided to re-issue the solicitation (Solicitation No. W8485-112481/B) under the same terms and conditions. However, it added that only the two original bidders would be invited to submit proposals. Bidding closed on February 17, 2011.

6. According to PWGSC’s letter dated May 11, 2011, Vector was informed, on February 25, 2011, that it would not be awarded a contract, as its bid was not the lowest compliant bid. Vector was also informed at that time that the contract would be awarded to DAC Aviation International Ltd. (DAC). However, according to the complaint, Vector was so informed on March 22, 2011.³

7. According to the complaint, on March 31, 2011, Vector’s existing contract with PWGSC expired.

8. According to the letter included in the complaint and dated May 11, 2011, PWGSC officially informed Vector that a contract had been awarded to DAC on May 9, 2011. It advised Vector that it had not achieved the lowest cost per point under the evaluation methodology described in the RFP and provided it with a table that compared the number of points that it received, its bid price and its cost per point with those of DAC.

9. On May 24, 2011, Vector filed its complaint with the Tribunal.

10. Vector’s first ground of complaint is that, considering DAC’s bid price and the cost parameters given to all bidders in the RFP, the Canadian content requirements of the RFP could not possibly have been met by DAC.

11. According to Vector, had DAC’s bid met the Canadian content requirements, its cost per point would have been higher than that of Vector. In order to support these assertions, Vector formulated a number of premises and presented calculations to estimate the minimum bid price that would have been necessary to meet the Canadian content requirements stipulated in the RFP.

12. 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,⁴ Chapter Five of the Agreement on Internal Trade,⁵ the Agreement on Government Procurement,⁶ Chapter Kbis of the Canada-Chile Free Trade Agreement ⁷ or Chapter Fourteen of the Canada-Peru Free Trade Agreement ⁸ applies. In this case, only the AIT applies.

13. 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.”

14. The Canadian content provisions, as referred to by Vector, which can be found at Article 1.1 of Part 5 of the RFP entitled “CERTIFICATIONS”, provide as follows:

The certifications listed below should be completed and submitted with the bid. Failure to submit may cause the bid to be rejected as this requirement is subject to a preference for Canadian goods and/or services.

Certification required with the Bid: Canadian Content Certification A3066T 2010-01-11

This procurement is conditionally limited to Canadian services.

Subject to the evaluation procedures contained in the bid solicitation, bidders acknowledge that only bids with a certification that the services offered are Canadian services, as defined in clause A3050T, may be considered.

As the engine is manufactured by General Electric Aviation Engines in the USA, Clause 3050T is modified to read: “no less than 70 percent of the total bid price, with the exclusion of Advance Accountable Spares (AAS), must consist of Canadian goods and services”.

Failure to provide this certification completed with the bid will result in the services offered being treated as non-Canadian services.

15. However, Article 1.1 of Part 4 of the RFP, entitled “EVALUATION PROCEDURES AND BASIS OF SELECTION”, provides as follows:

The general conditions regarding evaluations of proposals are as follows:

. . .

(e) The evaluation team will determine first if there are three (3) or more bids with a valid Canadian Content certification. In that event, the evaluation process will be limited to the bids with the certification; otherwise, all bids will be evaluated.

[Emphasis added]

16. The above provisions, which were unchanged from the original RFP, make it clear that the procurement was only “. . . conditionally limited to Canadian services” and that the Canadian content requirement was “[s]ubject to the evaluation procedures contained in the bid solicitation . . . .”

17. As the evaluation procedures clearly state, unless there are three or more bids with a valid Canadian content certification, all bids will be evaluated. Since PWGSC only received two bids in response to the first and second solicitations, the evaluation was not, at any point in time, limited to bids with a valid Canadian content certification.

18. Therefore, even if DAC’s bid failed to include the Canadian content certification mentioned in Part 5 of the RFP or included a certification that was not valid, it could still have been evaluated by PWGSC. In these circumstances, the Tribunal is of the view that the question as to whether or not DAC’s bid met the Canadian content requirements of the RFP is irrelevant. Consequently, the Tribunal finds that the complaint, on this ground, does not disclose a reasonable indication that the procurement was not conducted in accordance with the AIT.

19. Vector’s second and third grounds of complaint are to the effect that PWGSC’s evaluation of proposals did not take into consideration certain factors, such as (a) Vector’s proven record of success, and (b) the risks and costs associated with making a transition to a new service supplier.

20. 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.”

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

22. These provisions make it clear that 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.

23. In the Tribunal’s view, Vector became aware, or reasonably should have become aware, of its second and third grounds of complaint when it received a copy of the RFP or shortly thereafter. In other words, Vector should have known, upon reading the RFP, which requirements and factors would be examined by PWGSC for evaluation purposes.

24. PWGSC issued the second RFP on January 27, 2011, and Vector submitted a bid in response to this RFP on February 16, 2011. Therefore, Vector should reasonably have known the basis of these two grounds of complaint by February 16, 2011, at the latest, and it would have had until March 3, 2011 (i.e. 10 working days after February 16, 2011)⁹ to either object to PWGSC or file a complaint with the Tribunal.

25. As the complaint was only filed with the Tribunal on May 24, 2011, the Tribunal considers that the complaint, in respect of these two grounds, was not filed in a timely manner.

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

DECISION

27. Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.

---

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

² . S.O.R./93-602 [Regulations].

³ . See complaint, sections 3H and 5F.

⁴ . 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).

⁵ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].

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

⁷ . 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.

⁸ . 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).

⁹ . The Tribunal considers that “Family Day” in the province of Ontario is a holiday and therefore not a “working day” under the Regulations.