AGRI-SX INC.
AGRI-SX INC.
File No. PR-2012-051
Decision made
Wednesday, March 27, 2013
Decision issued
Wednesday, March 27, 2013
Reasons issued
Tuesday, April 9, 2013
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
AGRI-SX 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
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.
BACKGROUND
2. The complaint relates to a procurement (Solicitation No. T3200-110026/A) by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of Transport, for the provision of a system for the dispersion of birds comprising 25 scare cannons for the Sept-Îles and Îles-de-la-Madeleine airports.
3. Agri-SX Inc. (Agri-SX) alleged the following:
- the solicitation is restricted abnormally to one type of bird scaring device, the gas cannon, leaving no room for any other technical choice;
- certain mandatory technical criteria set out in the solicitation are prejudicial to the dispersion of birds in airports;
- there is no request for a warranty of effectiveness in the solicitation, and such a clause would have been necessary;
- the gas cannons requested are very noisy and will be unusable at the Îles-de-la-Madeleine airport;
- most Quebec airports benefit from a bird-free environment thanks to the patented system developed and offered by Agri-SX, and this system should not be replaced by former methods that have proved their deficiencies.
4. The solicitation was posted on MERX3 on January 17, 2013. The deadline for the receipt of bids was February 26, 2013.
5. On February 20, 2013, Agri-SX, according to its statements, after having responded to requests to analyze the contents of the call for tenders, sent the Office of the Procurement Ombudsman a document it describes as a “study” [translation], in which it raised what it called technical anomalies in the requirements of the solicitation. In fact, Agri-SX raised in this document almost the same grievances as those described in its complaint to the Tribunal.
6. On February 25, 2013, Agri-SX submitted a proposal in response to the solicitation. However, Agri-SX acknowledged in its proposal that it did not comply with one of the mandatory technical criteria of the solicitation, namely, the requirement that the system be used with a wireless control to activate the gas cannons.
7. On March 1, 2013, PWGSC informed Agri-SX that its proposal had been declared non-responsive because it did not meet all the requirements of the solicitation, in particular, the requirement that the system be used with a wireless control to activate the gas cannons. In this letter, PWGSC also informed Agri-SX that a contract had been awarded to another bidder, Margo Supplies Ltd.
8. On March 8, 2013, Agri-SX filed a complaint with the Office of the Procurement Ombudsman, requesting the cancellation of the procurement. According to the documents filed by Agri-SX with the Tribunal, this complaint was received by the Office of the Procurement Ombudsman on March 11 and, on March 13, the Office of the Procurement Ombudsman informed Agri-SX that it had no jurisdiction to review the case.
9. On March 14, 2013, Agri-SX filed its complaint with the Tribunal. However, the complaint was deemed deficient because it did not comply with the requirements of subsection 30.11(2) of the CITT Act. On March 15, 2013, the Tribunal sent a letter to Agri-SX, requesting additional information and documents. On March 18 and 21, 2013, Agri-SX provided the additional information to the Tribunal. In accordance with subrule 96(1) of the Canadian International Trade Tribunal Rules4, the complaint was therefore considered to have been filed on March 21, 2013.5
ANALYSIS
10. All Agri-SX's grounds of complaint concern the requirements of the solicitation which, according to Agri-SX, would be inadequate and would not allow the deployment of an effective bird dispersion system. In fact, Agri-SX essentially submitted that the call for tenders should have included other requirements and should have allowed it to propose other technical means than those requested to ensure adequate dispersion of birds. Its grievances are based on the claim that a system based on the use of gas cannons would not be suitable for the Sept-Îles and Îles-de-la-Madeleine airports and, more specifically, that the requirement that the system must be used with a wireless control to activate the gas cannons is useless and should be removed from the list of mandatory criteria.
11. 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.”
12. 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.”
13. These provisions make it clear that 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. Where 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.
14. 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.”6
15. Therefore, if Agri-SX had some concerns regarding the requirements for the products and services to be supplied or if it had reasons to believe that they were inadequate, it had the responsibility to raise the question or request changes from PWGSC, or to complain to the Tribunal within the prescribed periods, before submitting its proposal or being informed of the results of the evaluation of the proposals.
16. In the Tribunal's view, Agri-SX became aware, or reasonably should have become aware, of its grounds of complaint when it reviewed the solicitation documents, which were issued on January 17, 2013. Indeed, the mandatory requirements of the solicitation are apparent on the face of the document and are devoid of ambiguity. After reading the solicitation and reviewing the list of mandatory technical criteria, Agri-SX was thereupon able to determine that the requirements of the call for tenders describing the Department's operational requirement and the type of services required were different from the bird dispersion system that it usually offers and intended to propose. Therefore, Agri-SX should have become aware of its grounds of complaint when it read the call for tenders for the first time.
17. The complaint and the documents filed by Agri-SX do not indicate exactly when Agri-SX became aware of the solicitation. It can be presumed that its officers probably read the solicitation for the first time shortly after January 17, 2013, at the time it was issued. In the additional documents filed with the Tribunal on March 18, 2013, Agri-SX submitted, however, that it became aware of all its grounds of complaint much later, on February 20, 2013.
18. However, there is reason to doubt the veracity of this assertion because February 20, 2013, was the very date on which Agri-SX filed with the Office of the Procurement Ombudsman the document it describes as a “study”, in which it raised, inter alia, nearly the same grounds of complaint as those described in its complaint to the Tribunal. In the Tribunal's opinion, in order to be able to file this document on February 20, Agri-SX needed to have studied and analyzed the contents of the solicitation before that date. Moreover, the “study” in question indicated that the analysis of the call for tenders by Agri-SX was “completed” [translation] on February 20, 2013, which proves that it had begun before that date. In addition, the Notice of Proposed Procurement/Tender Notice (NPP) filed by Agri-SX with the Tribunal, which clearly describes the need of the purchasing entity and sets out the mandatory technical criteria, seems to have been printed from MERX by Agri-SX on January 23, 2013.7
19. In any event, even accepting Agri-SX's claim that it was on February 20, 2013, that it actually became aware of its grounds of complaint, the Tribunal must conclude that the complaint was filed late, for the following reasons.
20. If February 20, 2013, is considered the relevant date for the purposes of section 6 of the Regulations, then Agri-SX had, at the latest, until March 5, 2013 (i.e. 10 working days after February 20, 2013), to either make an objection to the relevant government institution or file a complaint with the Tribunal. Yet Agri-SX did not make an objection to PWGSC's contracting authority. The relevant contracting authority for this procurement and the agent responsible at PWGSC are clearly stated in Article 5.1 of the solicitation.
21. The only correspondence between Agri-SX and PWGSC's contracting authority is the March 1, 2013, letter in which PWGSC informed Agri-SX that its proposal had been rejected and that a contract had been awarded to another bidder. As such, Agri-SX did not raise its grievances against the requirements of the solicitation with the relevant government institution nor did it request relief before submitting its proposal in response to the solicitation.
22. In the absence of an objection to the relevant government institution and since Agri-SX filed its complaint with the Tribunal only on March 21, 2013,8 the Tribunal finds that the complaint was filed outside the time limit prescribed by subsection 6(1) of the Regulations.
23. Although this is unnecessary to dispose of the complaint, the Tribunal considers it appropriate to add that the “study” filed on February 20, 2013, with the Office of the Procurement Ombudsman is not an objection to the relevant government institution pursuant to subsection 6(2) of the Regulations. Indeed, the Office of the Procurement Ombudsman is not the relevant contracting authority for the procurement in question and does not have the authority to define or review the requirements of a solicitation. In other words, the Ombudsman has no jurisdiction to deal with grievances that can occur before a contract is awarded, during the bid submission period, and, therefore, is not the institution that could have granted relief or responded to Agri-SX's grievances in this instance.
24. In any case, even if the Tribunal found that the complaint was filed in a timely manner, on the merits, other legal obstacles would prevent its acceptance for inquiry.
25. Subsection 7(1) of the Regulations sets out three conditions which must be met before the Tribunal may conduct an inquiry in respect of a complaint. The third condition is that the information provided by the complainant discloses a reasonable indication that the procurement has not been carried out in accordance with whichever of Chapter Ten of the North American Free Trade Agreement,9 Chapter Five of the Agreement on Internal Trade,10 the Agreement on Government Procurement,11 Chapter Kbis of the Canada-Chile Free Trade Agreement,12 Chapter Fourteen of the Canada-Peru Free Trade Agreement,13 or Chapter Fourteen of the Canada-Colombia Free Trade Agreement14 applies. All the trade agreements apply in this case.
26. However, no provision of these trade agreements prevents the contracting authority, in principle, from defining its needs and determining the types of required goods or services that it wishes to procure. In this regard, the Tribunal's jurisprudence also indicates that the federal government has great latitude to define its needs.
27. For example, in File No. PR-2011-028,15 the Tribunal stated as follows:
19. It is well established in Tribunal jurisprudence that a government institution is entitled to define and satisfy its legitimate operational requirements. However, while a government institution has the right to establish the parameters of the solicitation, it must do so reasonably, as it does not have licence to establish conditions that are impossible to meet. Thus, the prerogative of the procuring entity to define its procurement needs is circumscribed by “reasonableness”.
20. The Tribunal has also held that a government institution, in satisfying its legitimate operational requirements, need not structure a procurement to accommodate any particular supplier. In its recent decision in Daigen Communications, the Tribunal noted that, as long as a procurement is not deliberately constructed to preclude certain suppliers or to direct the procurement to a favoured supplier, a government institution may choose to procure a combination of services by way of a single solicitation, even though this might have the effect of excluding some suppliers.
21. Moreover, as the Tribunal has stated in the past, the fact that certain bidders have competitive advantages regarding a particular tendering process is simply part of the ordinary ebb and flow of business; if a bidder is at a disadvantage, it does not necessarily follow that the procurement process is discriminatory.
[Footnotes omitted]
28. The complaint does not contain any indication that the requirements of the solicitation would have prevented Agri-SX from submitting a compliant proposal nor that it favoured a potential supplier in particular. Moreover, considering the information submitted, the Tribunal is of the opinion that these requirements do not seem unreasonable, biased or unduly restrictive.
29. Ultimately, the Tribunal finds that nothing in this instance suggests that PWGSC's operational requirements for the required bird dispersion services were unreasonable or illegitimate, or that PWGSC formulated the mandatory requirements of the call for tenders in a way to favour or to put at a disadvantage a given supplier.
30. Therefore, the Tribunal finds that the information provided does not disclose a reasonable indication that the procurement has not been conducted in accordance with the relevant trade agreements.
31. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint.
DECISION
32. 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 . Canada's electronic tendering service.
4 . S.O.R./93-602 [Regulations].
5 . Subrule 96(1) of the Rules reads as follows: “A complaint shall be considered to have been filed (a) on the day it was received by the Tribunal; or (b) in the case of a complaint that does not comply with subsection 30.11(2) of the Act, on the day that the Tribunal receives the information that corrects the deficiencies in order that the complaint comply with that subsection” [emphasis added].
6 . 2002 FCA 284 (CanLII) at paras. 18, 20.
7 . See date in the lower right corner of the NPP filed by Agri-SX with the Tribunal on March 18, 2013.
8 . As mentioned earlier, in accordance with subrule 96(1) of the Rules, the complaint must be considered to have been filed on March 21, 2013.
9 . 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).
10 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm>.
11 . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm>.
12 . 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.
13 . 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-... chapter-chapitre-14.aspx> (entered into force 1 August 2009).
14 . 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).
15 . 723186 Alberta Ltd. (12 September 2011) (CITT).