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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

WEIR CANADA INC.

AGAINST

DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA

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

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 procurement (Solicitation No. W8482-116492/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defense (DND) for the repair, overhaul and testing of a variety of pump assemblies or subassemblies used in various fluid systems on board DND ships.

3. Weir Canada Inc. (Weir) filed a complaint with the Tribunal on September 4, 2012, alleging that PWGSC failed to conduct a fair and unbiased procurement process because the Request for Proposal (RFP) contained certain requirements that were unjustifiably biased in favour of particular Original Equipment Manufacturer (OEM) goods and OEM bidders, with the effect of excluding Weir’s bid. Specifically, Weir alleged that the following requirements under the RFP were unjustifiably biased in favour of OEM goods and OEM bidders:

(1) certification of the supply of OEM parts (Requirement No. 1); and

(2) the bidder must be an OEM or under a contract pertaining to technical data and repair/overhaul specifications with an OEM (Requirement No. 2).

4. Weir asked the Tribunal to issue a postponement of award of contract order and recommend that PWGSC terminate the existing procurement process and issue a new solicitation without the offending requirements.

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.”

6. Subsection 6(2) of the Regulations states that a potential supplier who 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.”

7. 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 will have 10 working days to file a complaint with the Tribunal after it has actual or constructive knowledge of the denial of relief by the government institution.

8. PWGSC issued the RFP on May 30, 2012, and the solicitation was published on MERX³ on May 31, 2012.

9. On June 19, 2012, Weir wrote to Curtiss-Wright, an OEM supplier with which it had partnered when they were awarded similar DND contracts in 2001 and 2006, asking for a letter confirming that it would supply OEM parts in support of Weir’s bid on the RFP. On July 6, 2012, Curtiss-Wright responded to Weir by e-mail, stating that it would not be able to provide the requested letter.

10. This news prompted Weir to object to Requirement No. 1, which it did on July 17, 2012—far outside the 10-working-day limit prescribed in subsection 6(2) of the Regulations.

11. On August 21, 2012, Weir received final confirmation from Curtiss-Wright that it would not provide a letter of agreement in support of Weir’s bid. Weir then wrote to PWGSC again, on August 22, 2012, reiterating its objection regarding Requirement No. 1 and, for the first time, objecting to Requirement No. 2.

12. As stated by the Federal Court of Appeal in IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd., “[i]n procurement matters, time is of the essence. . . . 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.”⁴ Furthermore, the Tribunal has previously taken the view that, “. . . where there has been a clear denial of relief in respect of an objection made by a complainant, it is not open to the complainant to keep the issue alive and delay final disposition of the matter through successive reiterations of essentially the same concerns.”⁵

13. Strictly speaking, upon the publication of the RFP, Weir, as the incumbent supplier, should have read it and should have known the grounds of its complaint. Indeed, by its own admission, Weir was “concerned” about Requirement Nos. 1 and 2 at the time of the issuance of the RFP.⁶ Accordingly, Weir should have objected to PWGSC or filed its complaint with the Tribunal within 10 working days of May 31, 2012.

14. However, it seems clear that the only reason Weir failed to object at the time was because it assumed (wrongly, as it turned out) that it could meet the requirements of the RFP by partnering with Curtiss-Wright.

15. Should Weir’s assumption that it could count on Curtiss-Wright to meet the requirements of the RFP change the time line to object to PWGSC or file a complaint with the Tribunal? In other words, should Weir have objected or filed a complaint before it knew whether it could, with the help of Curtiss-Wright, meet the requirements of the RFP?

16. The Tribunal finds that a proper interpretation of section 6 of the Regulations is that a complainant’s assumption regarding its ability to meet requirements which it finds objectionable is irrelevant. Once a complainant knows or ought to know the basis of its complaint, it should take action. Therefore, Weir should have reasonably objected or filed a complaint within 10 working days of May 31, 2012, and should not have waited to see if Curtiss-Wright would agree to support its bid.

17. In any event, even if section 6 of the Regulations could be construed such that the relevant time line is when Weir knew that it could not meet the requirements of the RFP which it found objectionable, then Weir reasonably ought to have objected to PWGSC or filed a complaint with the Tribunal within 10 working days of July 6, 2012. That would make the objection to Requirement No. 2 late considering it was not made until August 22, 2012, and the complaint was not filed until September 4, 2012. Similarly, even though the objection with respect to Requirement No. 1 would be timely, having been made on July 17, 2012, it is nonetheless late because there was a clear denial of relief to this objection on August 9, 2012, when PWGSC issued Amendment No. 006, but the complaint was not filed until September 4, 2012.

DECISION

18. 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 . Canada’s electronic tendering system.

⁴ . 2002 FCA 284 (CanLII) at paras. 18, 20.

⁵ . Re Complaint Filed by Stonehaven Productions Inc. (16 March 2012), PR-2011-060 at para. 11.

⁶ . Complaint, Annex “A”, Detailed Statement of Facts and Arguments at para. 16.