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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • EVALUATION OF SIMPLEXGRINNELL’S PROPOSAL
  • 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

TYCO INTERNATIONAL OF CANADA O/A SIMPLEXGRINNELL

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.

Stephen A. Leach
Stephen A. Leach
Presiding Member

Dominique Laporte
Dominique Laporte
Secretary

1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act¹ 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. W3537-11E014/A) by the Department of Public Works and Government Services (PWGSC) for the inspection, repair, maintenance and materials for fire safety maintenance of various Department of National Defence (DND) locations in Alberta.

3. Tyco International of Canada o/a SimplexGrinnell (SimplexGrinnell) alleged that its bid was improperly declared non-compliant and that it could have clarified its proposal, had it been asked to do so.

4. 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 the following trade agreements applies: 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 Agreement⁶ or Chapter Fourteen of the Canada-Peru Free Trade Agreement⁷. In other words, the Tribunal must examine the complaint to determine if there is a reasonable indication that the procuring entity conducted the procurement in a manner that violated one of the applicable trade agreements. In this case, all but the AGP apply.

5. 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.”

6. Article 1013 of NAFTA provides that the tender documents “. . . shall contain all information necessary to permit suppliers to submit responsive tenders . . . [and] shall also include . . . the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders . . . .” In addition, Article 1015(4)(a) of NAFTA indicates 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 and have been submitted by a supplier that complies with the conditions for participation”. The CCFTA and the CPFTA contain similar provisions.

EVALUATION OF SIMPLEXGRINNELL’S PROPOSAL

7. PWGSC issued a Request for Proposal (RFP) for the inspection, repair, maintenance and materials for fire safety maintenance at various DND locations in Alberta, with a bid closing date of June 6, 2011. Bidders were required to attend mandatory site visits for the 10 locations encompassed by the RFP. According to the RFP, these visits were scheduled between May 9 and 13, 2011. On May 17, 2011, PWGSC issued amendment No. 001, which answered questions submitted by bidders, amended the statement of work, amended the basis of payment and extended the date by which any further questions had to be submitted.

8. With respect to the mandatory criteria at issue, Annex B of the RFP, “Basis of Payment”, as amended by amendment No. 001, provided the following:

1.1 It is MANDATORY that bidders submit prices/rates for the period of the proposed contract in the following pricing schedules. This section, when completed, will be considered the bidder’s Financial Proposal.

1.2 Provide pricing for ALL 10 locations in Alberta. PRICING must be firm all inclusive lot or unit pricing for each line item, GST extra. Pricing MUST include ALL costs associated with providing the service in accordance with the Statement of Work, Annex A attached.

. . . 

1.4 Offerors must provide pricing as per unit of issue requested. It is the responsibility of the offeror to provide conversion to the unit of issue requested. Failure to do so will render the offer non-responsive without further consideration.

. . . 

The financial evaluation will be calculated as follows:

1. For each line item the lot/unit price will be multiplied by the estimated quantity = extended price.

2. The extended price for each item will be added = subtotal

3. The three subtotals will be added together to give the total evaluated price by location. (Contract Period subtotal + 1st Option Year Pricing + 2nd Option Year Pricing = “Total Evaluated price by Location”)

4. The “Total Evaluated price by Location” will be added to equal the TOTAL BID FOR EVALUATION.

[Emphasis added]

9. Annex B then contained 10 pricing schedules, one for each location, which required bidders to provide pricing for a three-year period for a number of scheduled service tasks and for services on an as-and-when-requested basis. Regarding the services to be provided on an as-and-when-requested basis, bidders were instructed to fill in a table for each location similar to the one shown below.

		Unit of Issue	Est. Qnty	CONTRACT PRICING	OPTION YEAR 1 PRICING	OPTION YEAR 2 PRICING
For services performed within the normal work hours of 0800 to 1600 hours, Monday through Friday except statutory holidays.
1.1	Certified Technician Hourly Rate	Hour	45	$	$	$
1.2	Labourer Hourly Rate	Hour	45	$	$	$
For services performed outside the normal work hour. Work must be approved by the DND Project Authority in advance.
1.3	Certified Technician Hourly Rate	Hour	20	$	$	$
1.4	Labourer Hourly Rate	Hour	20	$	$	$

10. SimplexGrinnell submitted a bid by the due date for the receipt of bids. On June 28, 2011, SimplexGrinnell was advised by PWGSC that the contract had been awarded to another company and that its bid did not comply with all the mandatory requirements of the solicitation. Specifically, PWGSC advised SimplexGrinnell that its bid was non compliant as follows:

. . . Non-compliant pricing submitted - did not provide firm unit prices - cannot evaluate.

1.2 and 1.4 - Labourer hourly rate - put N/A

1.1 and 1.3 - put ranges for hourly rate

11. SimplexGrinnell did not provide the Tribunal with a complete copy of its proposal. The complaint contained a “sample” excerpt from its bid, which included the completed pricing table for one of the locations encompassed by the RFP. The Tribunal notes that, regarding items 1.1 and 1.3 of the above table, SimplexGrinnell’s bid, for that particular location, contained a price range for each year with an asterisk noting the following: “VARIES BY TRADE (FIRE ALARM, SPRINKLER ETC)”. SimplexGrinnell also filled in “N/A” for all three years for items 1.2 and 1.4.

12. In its complaint, SimplexGrinnell submitted that its rates vary depending on the task to be performed and that, as all its technicians are certified, it has no “Labourer” rate. SimplexGrinnell further submitted that it could have clarified its response had it been given the opportunity to do so, but that PWGSC had not made such a request.

13. In the Tribunal’s view, item 1.2 of Annex B of the RFP clearly required that bidders provide PWGSC with a single price for each line item in each pricing schedule. The Tribunal also notes that items 1.1 and 1.4 of Annex B of the RFP advised bidders that it was mandatory that the pricing schedules be completed, in the unit of measure requested, and that failure to do so would render a bid “. . . non-responsive without further consideration”. In light of these consequences, before a potential supplier changes the format of a mandatory table in the tender documents, in the Tribunal’s view, it would be prudent for that supplier to submit a question of clarification in that regard to the procuring entity. The Tribunal can find no evidence in the complaint that such a question was submitted.

14. As SimplexGrinnell’s proposal did not contain a firm “. . . all inclusive lot or unit pricing for each line item . . .”, as required by the RFP, but rather a range of prices, the Tribunal finds that PWGSC’s decision to declare SimplexGrinnell’s proposal non-responsive in accordance with the provisions of the RFP was reasonable. As such, the Tribunal finds that the complaint does not disclose a reasonable indication that the evaluation of SimplexGrinnell’s proposal was not carried out in accordance with the applicable trade agreements.

15. With respect to SimplexGrinnell’s suggestion that PWGSC should have requested a clarification, the Tribunal is of the opinion that a request for clarification is at the discretion of PWGSC. In any event, a clarification, in this case, could not have corrected the error since correcting the bid price to a firm unit price would have amounted to a substantive modification to the proposal after bidding had closed.

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

DECISION

17. 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].