APM DIESEL 1992 INC.
APM DIESEL 1992 INC.
File No. PR-2011-052
Decision made
Wednesday, February 15, 2012
Decision issued
Friday, February 17, 2012
Reasons issued
Wednesday, March 7, 2012
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
APM DIESEL 1992 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.
Serge Fréchette
Serge Fréchette
Presiding Member
Dominique Laporte
Dominique Laporte
Secretary
The statement of reasons will be issued at a later date.
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 Request for a Standing Offer (RFSO) (Solicitation No. W1985-115441/B) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the provision of repair services for military vehicles.
3. APM Diesel 1992 Inc. (APM) alleged that the amendment of a mandatory criterion of the invitation to tender, in comparison with previous procurements for the provision of the same kind of services, concerning the maximum time to travel by car from the facilities of potential suppliers to those of DND in the east end of Montréal, was meant to exclude it from the procurement and that it was therefore not treated fairly during the procurement process. APM also alleged that the amendment of the criterion adversely affected all potential suppliers doing business in its region.
4. In particular, APM submitted that, in the past, for the same kind of contract, the maximum time to travel from the facilities of potential suppliers to those of DND was 90 minutes. It alleged that reducing that maximum time to 60 minutes in the solicitation at issue was aimed at preventing it from bidding. Furthermore, in APM’s view, this amendment is not objective, and the “travel” clause, as amended, does not allow for a fair evaluation of the travel time for all suppliers. According to APM, successfully completing the trip in 60 minutes depends on many factors, including the following: the driver, the traffic, the road conditions, the weather and accidents.
5. 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.”
6. 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.
7. On August 25, 2011, PWGSC issued an RFSO, Solicitation No. W1985-115441/A, for the provision of repair services for military vehicles. However, on October 19, 2011, PWGSC notified APM that the bidding process had been cancelled because PWGSC was of the opinion that certain mandatory criteria and certain clauses of the RFSO needed to be clarified. TPSGC also notified APM that a new solicitation for the same requirement would be issued the following week.
8. Indeed, on October 27, 2011, PWGSC issued the solicitation at issue in this complaint. The bid closing date was November 23, 2011. On November 15, 2011, PWGSC issued an amendment to the RFSO which provided additional guidance with regard to the method used to determine the travel time from the facilities of potential suppliers to those of DND. This amendment provided as follows:
If deemed necessary by Canada, an assessment could be made in order to verify the time required to travel the proposed route. This assessment will be based on ground travel, in a commercial vehicle, outside of rush hours, taking care to abide by the traffic regulations in force, in particular, the permissible maximum speeds on the various segments of the route.
[Translation]
9. Furthermore, articles 1.3 and 1.4 of Part 5 of the RFSO stipulated that offerors had to provide a route and certify that they were capable of travelling from their facilities to those of DND, located at 6769 Notre-Dame East, Montréal, in 60 minutes or less. The RFSO also provided that a bid would be declared non-responsive if it were determined that an offeror had made false statements, knowingly or not.
10. On January 19, 2012, PWGSC informed APM that its proposal had been declared non-responsive and provided reasons for the rejection. PWGSC advised APM that, on the basis of the assessments made pursuant to Part 5 of the RFSO, all the means used to verify the information provided by APM indicated that the time required to travel the proposed route exceeded 60 minutes.
11. On January 25, 2012, APM asked PWGSC to explain the process for challenging the decision. On January 30, 2012, APM objected, in writing, to PWGSC’s rejection of its proposal. On February 9, 2012, PWGSC responded to the objection by restating that all the means used to verify the information provided by APM with regard to the travel time from its facilities to those of DND indicated that the time required to travel the proposed route exceeded 60 minutes, that is, that it was 67 minutes, according to the most generous estimate. PWGSC, therefore, upheld its decision, since APM’s bid failed to meet a mandatory requirement of the RFSO.
12. On February 13, 2012, APM filed its complaint with the Tribunal.
13. The Tribunal noted that, in its complaint and in its objection, APM did not allege that PWGSC overestimated the time required to travel the proposed route from its facilities to those of DND. Rather, APM objected to the amendment of the mandatory requirement relating to the maximum travel time in comparison with previous procurements for the provision of the same kind of services. In this regard, APM alleged that, in the past, the relevant provision of invitations to tender for the provision of the same services contemplated a maximum travel time of 90 minutes. According to APM, this amendment was meant to exclude it from the procurement. Furthermore, APM alleged that the method used to calculate the travel time was not fair and objective.
14. The Tribunal is of the opinion that APM knew the basis of its complaint at the latest on November 15, 2011, when PWGSC issued the amendment to the RFSO. At that time, APM had already become aware of the mandatory criteria contained in the tender documents and knew that the maximum travel time had been reduced to 60 minutes. Furthermore, it knew or reasonably should have known how PWGSC would verify the travel time on the proposed route, that is, by estimating the travel time required by a commercial vehicle, outside of rush hour, and by abiding by the traffic regulations in force. If APM believed that the reduction of the maximum travel time to 60 minutes or the way in which the time required to travel the proposed route was assessed adversely affected it, or was not fair, it should have made an objection to PWGSC or filed a complaint with the Tribunal within 10 working days after that date. In other words, an objection should have been made or a complaint filed at the latest on November 29, 2011, in order to meet the time limits set out in section 6 of the Regulations. In this case, APM did not make an objection until January 30, 2012, and did not file its complaint until February 13, 2012.
15. The Tribunal is of the opinion that if a potential supplier believes that the criteria set out in an invitation to tender are overly stringent and not impartial, it must file a complaint in a timely manner. The procurement review process does not provide for grievances to be accumulated and then presented only when a proposal is rejected. In this regard, in IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd.,3 the Federal Court of Appeal stated the following:
[18] In procurement matters, time is of the essence. . . .
. . .
[20] . . . Therefore, potential suppliers are required not to wait for the attribution of a contract before filing any complaint they might have with respect to the process. They 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. . . .
[21] The Tribunal has made it clear, in the past, that complaints grounded on the interpretation of the terms of a [Request for Proposal] should be made within ten days from the moment the alleged ambiguity or lack of clarity became or normally ought to have become apparent.
16. Therefore, the Tribunal is of the opinion that APM did not make its objection to PWGSC or file its complaint with the Tribunal within the prescribed time limits and determines that the complaint was therefore filed late.
17. Even if the complaint were not time-barred, the information before the Tribunal does not disclose a reasonable indication, within the meaning of paragraph 7(1)(c) of the Regulations, that the procurement has not been conducted in accordance with the relevant trade agreements, that is, the North American Free Trade Agreement,4 the Agreement on Internal Trade,5 the Agreement on Government Procurement,6 the Canada-Chile Free Trade Agreement,7 the Canada-Peru Free Trade Agreement8 or the Canada-Colombia Free Trade Agreement,9 as the case may be.
18. The Tribunal stated, in a previous decision, that, “. . . while PWGSC has the right to establish the parameters of a [Request for Proposal], it must do so reasonably. PWGSC does not have licence to establish conditions that are impossible to meet.”10 Furthermore, the Tribunal has stated repeatedly that the federal government has the right to define its procurement requirements, to the extent that they meet its operational requirements.11
19. In view of the circumstances, the Tribunal is of the opinion that the requirement for a maximum travel time of 60 minutes from the facilities of potential suppliers to those of DND is not unreasonable and reflects legitimate operational requirements. Indeed, the complaint does not establish that PWGSC formulated the procurement in such a way as to exclude certain suppliers or that the maximum travel time of 60 minutes is an unreasonably stringent criterion if one considers that the repairs and inspections of military vehicles that are required in this RFSO must undeniably meet the needs of unforeseeable and varied missions. In fact, this criterion is neutral and applies objectively to all potential suppliers. Even if this kind of criterion inherently provides an advantage or a disadvantage for certain suppliers depending on the location of their facilities, these chance events merely reflect the ordinary course of business and are not, in themselves, unfair or discriminatory.
20. As for APM’s argument that a 90-minute travel time had been deemed acceptable in previous similar procurements, in the Tribunal’s view, a procuring entity has the right to define its own procurement requirements and, when it prepares a solicitation, it does not need to incorporate the terms and conditions of a previous solicitation. Bidders must treat each solicitation independently and the terms and conditions of a previous solicitation are not determinative of the terms and conditions of a new solicitation.12 Therefore, PWGSC was not obliged to allow for a travel time of 90 minutes in the RFSO at issue. The complaint does not disclose a reasonable indication that the reduction of the travel time to 60 minutes was meant to exclude or disadvantage certain potential suppliers. It is reasonable to conclude that this amendment simply reflected a re-evaluation of the procuring entity’s procurement needs.
21. In light of the above, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.
DECISION
22. 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 (Can LII) at paras. 18-21.
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>.
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 . Free Trade Agreement between Canada and the Republic of Colombia, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-... (entered into force 15 August 2011).
10 . Re Complaint Filed by MTS Allstream Inc. (5 August 2005), PR-2004-061 (CITT) at para. 67.
11 . Re Complaint Filed by Inforex Inc. (24 May 2007), PR-2007-019 (CITT); Re Complaint Filed by FLIR Systems Ltd. (25 July 2002), PR-2001-077 (CITT); Re Complaint Filed by Aviva Solutions Inc. (29 April 2002), PR-2001-049 (CITT).
12 . Re Complaint Filed by The Spallumcheen Band (26 April 2001), PR-2000-042 (CITT).