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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • BACKGROUND
  • ANALYSIS
  • 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

VERREAULT NAVIGATION 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.

Daniel Petit
Daniel Petit
Presiding Member

Eric Wildhaber
Eric Wildhaber
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.

BACKGROUND

2. The complaint relates to a procurement (Solicitation No. F3019-13R405/A) by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of Fisheries and Oceans (DFO), for the performance of work on the Canadian Coast Guard Ship (CCGS) Pierre Radisson in accordance with the DFO – Coast Guard technical specifications titled “Drydocking Spring 2013” dated December 2012 and all drawings pertaining thereto.

3. Verreault Navigation Inc. (Verreault) alleged that PWGSC did not follow the invitation to tender (ITT) process and unfairly declared its proposal non-compliant by concluding that its proposal had not met all the mandatory requirements of the ITT. As a remedy, Verreault requested that PWGSC review its decision and award it the contract because, in its opinion, it was the lowest bidder.

4. The solicitation was posted on MERX³ on January 16, 2013. The deadline for the receipt of bids was February 19, 2013.

5. On February 19, 2013, Verreault submitted a proposal in response to the solicitation.

6. On March 5, 2013, PWGSC notified Verreault that its proposal had been rejected because it did not meet all the mandatory requirements of Part 4 of the evaluation procedures and selection method under paragraph 4.1.1 of the list of mandatory requirements, in particular, “Element 7 – Preliminary Work Schedule” [translation], as per clause 6.9 of Part 6 of the ITT. According to PWGSC, Verreault submitted, with its proposal, the preliminary schedule of a project other than that of CCGS Pierre Radisson.

7. On the same day, Verreault wrote to PWGSC, requesting that it review its decision concerning the preliminary planning and also attached the preliminary schedule relevant to the CCGS Pierre Radisson project which, by its own admission, should have been attached to its proposal.

8. On March 8, 2013, counsel for Verreault submitted a formal objection to PWGSC on behalf of Verreault, notifying it that the error committed by Verreault was only a clerical error in the designation of the said ship appearing in the preliminary schedule. In his letter, counsel for Verreault maintained that there was no doubt that Verreault's proposal pertained to the CCGS Pierre Radisson project. Counsel for Verreault also alleged that PWGSC had breached the ITT process, because it had not reviewed the schedule with Verreault during the preliminary meeting, as was provided in clause 6.9 of the ITT, and thus alleged that this clerical error undoubtedly would have been detected and corrected before the closing date. In that letter, counsel for Verreault clearly requested relief from PWGSC and called on it to remedy the situation and reverse its decision:

We respectfully request that you remedy the unjust situation described above and award the above-mentioned contract to our client, which deserves said contract on all [points].

In the alternative, we will have [no other] choice than to request the assistance, without further notice or delay, of the Office of the Procurement Ombudsman and/or file a complaint [with] the Canadian [International] Trade Tribunal.

Needless to say, we wish to avoid resorting to these measures and we remain at your complete disposal to find a viable solution for all parties.

[Translation]

9. On March 14, 2013, Verreault filed its complaint to the Tribunal. However, the Tribunal notes that, in the documents supplied by Verreault with its complaint, nothing indicates that PWGSC has yet responded to its objection to the evaluation of its proposal and to PWGSC's decision to declare its proposal non-compliant.

ANALYSIS

10. 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) 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.”

11. 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.

12. If a complainant objects to the government institution within the designated time, as is the case here, 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.

13. The Tribunal finds that, since Verreault has not yet received a final response from PWGSC, it has not yet received a denial of relief with respect to its ground of complaint, as contemplated by subsection 6(2) of the Regulations. Therefore, the Tribunal finds that Verreault's complaint was filed prematurely.

14. The Tribunal's decision does not however preclude Verreault from filing a new complaint when PWGSC responds to its objection or fails to do so within a reasonable amount of time. In the event that Verreault files a new complaint, it must do so within the time limits specified in the Regulations.

DECISION

15. 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 service.