ARMORWORKS ENTERPRISES CANADA, ULC
ARMORWORKS ENTERPRISES CANADA, ULC
File No. PR-2011-005
Decision made
Tuesday, May 10, 2011
Decision and reasons issued
Tuesday, May 17, 2011
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
ARMORWORKS ENTERPRISES CANADA, ULC
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.
Pasquale Michaele Saroli
Pasquale Michaele Saroli
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. W8476-112799/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the provision of ballistic neck protectors.
3. ArmorWorks Enterprises Canada, ULC (ArmorWorks) alleged that “DND [PWGSC] issued a material specification instead of a performance specification.”
4. 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) 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.”
5. 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.
6. On January 17, 2011, PWSGC issued the Request for Proposal (RFP). The original bid closing date was February 18, 2011. On February 3, 2011, PWGSC issued amendment No. 003, which extended the bid closing date to February 25, 2011.
7. On February 17, 2011, ArmorWorks asked PWGSC if the ballistic requirements could be met with the required fabric. On February 21, 2011, PWGSC advised ArmorWorks that DND was confident that the ballistic requirements could be met on a consistent basis. That same day, ArmorWorks advised PWGSC that the only known Canadian manufacturer of a compliant fabric was refusing to sell the material other than to one particular manufacturer. It therefore requested that the bid closing date be extended in order to qualify another supplier.
8. On February 22, 2011, PWGSC advised ArmorWorks that it understood that the situation had been resolved and that the closing date would not change. ArmorWorks advised PWGSC that it still required time for testing and that it was also pursuing other suppliers outside Canada. It therefore again requested that the bid closing date be extended. Later that day, PWGSC agreed to extend the bid closing date, and issued amendment No. 007, which extended the date to March 11, 2011.
9. On March 3, 2011, a testing firm, Biokinetics, advised ArmorWorks that it could only do the testing on April 20, 2011. ArmorWorks advised PWGSC of the situation and again requested that the bid closing date be extended.
10. On March 7, 2011, PWGSC advised ArmorWorks that it was of the view that there had been ample time to schedule the required testing, as the requirement had been issued on January 17, 2011. As the goods were required in Afghanistan as soon as possible, DND was not willing to prolong the solicitation period for an additional six weeks.
11. On March 8, 2011, ArmorWorks requested that PWGSC amend the RFP by removing the requirement for physical samples and allowing for those items to be sent upon request by PWGSC. On March 9, 2011, PWGSC issued amendment No. 009, which extended the bid closing date to March 14, 2011; it did not however amend the testing requirements.
12. On March 11, 2011, PWGSC advised ArmorWorks that there would be no further extensions to the bid closing date. ArmorWorks raised its concerns about the availability of the fabric. It also requested information on the process for filing a complaint.
13. On March 14, 2011, at 8:14 a.m., PWGSC suggested to ArmorWorks that it wait until the evaluation had been completed before filing a complaint, adding that it would advise ArmorWorks before awarding a contract. Bids closed at 2:00 p.m.
14. According to ArmorWorks, PWGSC awarded a contract to Pacific Safety Products Inc. on April 21, 2011.
15. On May 5, 2011, ArmorWorks filed its complaint with the Tribunal.
16. ArmorWorks’ complaint relates to the fact that a material specification was used instead of a performance specification. The Tribunal is of the view that ArmorWorks should reasonably have become aware of its basis of complaint after it had read the solicitation documents which were issued on January 17, 2011. As ArmorWorks asked a question relating to the fabric requirements on February 17, 2011, the Tribunal is of the view that it had to have been aware of its basis of complaint by that date, at the latest.
17. In its complaint, ArmorWorks indicates that it objected on February 17, 2011, about the use of a material specification rather than a performance specification. However, its February 17, 2011, e-mail reads as follows:
Annex B para 4.3.3
Can the technical authority confirm that it is known that the V50 requirements can be consistently achieved for all the listed projectiles using the required ballistic material, given the maximum areal density of 3.350 g/m2?
18. In its e-mail of March 11, 2011, ArmorWorks stated the following:
Our position is that the customer specified the material that must be used in the ballistic solution, the incumbent has an advantage because they have the material available on the shelf and everyone else has to get / develop and test it. Being as the supplier of this existing material would not sell to anyone else but one manufacturer we feel this is unfair.
[Emphasis added]
19. Having reviewed the complaint and related correspondence on the record, the Tribunal is of the view that ArmorWorks’s March 11, 2011, e-mail can reasonably be considered to be an objection to the specification in the solicitation documents.
20. As the Tribunal has already found that ArmorWorks should reasonably have become aware of its basis of complaint by February 17, 2011, its objection of March 11, 2011, falls outside the 10-working-day period prescribed by the Regulations (which required that the objection be made by March 3, 2011).
21. That PWGSC, in its e-mail of March 14, 2011, suggested that ArmorWorks wait until after the evaluation had been completed before filing a complaint is of no consequence since, in the absence of a timely objection, the complaint itself would have had to have been filed with the Tribunal within 10 working days from the date on which it first became aware, or reasonably should have become aware, of its ground of complaint (again by March 3, 2011). The complaint was not filed with the Tribunal until May 5, 2011.
22. The Federal Court of Appeal, in IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd.,3 stated that potential suppliers “. . . 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.”
23. Accordingly, the Tribunal finds that the complaint was filed outside the time limit established in the Regulations and is therefore time-barred by operation of law.
24. Therefore, the Tribunal will not inquire into the complaint and considers the matter closed.
DECISION
25. 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 . 2002 FCA 284 (CanLII).