FLAMAN MANAGEMENT PARTNERS LTD.
FLAMAN MANAGEMENT PARTNERS LTD.
File No. PR-2012-045
Decision made
Wednesday, March 6, 2013
Decision issued
Thursday, March 7, 2013
Reasons issued
Monday, March 11, 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
FLAMAN MANAGEMENT PARTNERS LTD.
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.
Stephen A. Leach
Stephen A. Leach
Presiding Member
Gillian Burnett
Gillian Burnett
Acting 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.
SUMMARY OF THE COMPLAINT
2. Flaman Management Partners Ltd. (FMP) filed a complaint regarding a procurement (Solicitation No. EN578-055605/E) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence for Supply Arrangements (SAs) and Standing Offers (SOs) for the provision of Task-based Informatics Professional Services (TBIPS).
3. FMP alleged that the mandatory financial requirements of the solicitation discriminate against small firms for the following reason: in order to qualify as a Tier 1 supplier, bidders must provide proof of total cumulative value billed for informatics professional services of at least $1 million (SOs) and $1.5 million (SAs) within the last three years immediately prior to the closing date. According to FMP, the minimum billing thresholds are excessive and increasingly difficult for small firms to achieve given the recent economic downturn and reduced spending by governments and private sector organizations resulting in fewer opportunities for service providers.
4. FMP asked the Tribunal to issue a postponement of contract award order and recommend that PWGSC provide relief by (1) allowing bidders who previously met the mandatory minimum billing threshold and were issued an SA/SO under the last refresh solicitation for TBIPS be “grandfathered” or exempt from the application of this requirement for an additional three-year period in this solicitation, or (2) by eliminating or significantly reducing the requirement. FMP also asked that PWGSC postpone the bid closing date by two weeks following a decision to grant either form of relief.
TRIBUNAL'S ANALYSIS
Time Limit for Filing the Complaint
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. The Tribunal considers that FMP, as a previously qualified supplier, should have known the grounds of its complaint upon reading the Request for Supply Arrangements and Standing Offers (RFSA/SO), which clearly sets out the mandatory minimum billing threshold requirements.3 PWGSC issued the solicitation on January 18, 2013, and it was published on MERX4 on January 21, 2013. The bid closing date (amended) is March 25, 2013. FMP made an objection to PWGSC on February 3, 2013, which appears timely.
9. FMP submitted that it received a denial of relief from PWGSC in its response to Question No. 47 in Amendment No. 005 to the solicitation, issued on February 14, 2013. On February 16, 2013, FMP reiterated its objection to PWGSC and also filed a complaint with the Office of the Procurement Ombudsman. On March 1, 2013, PWGSC provided its response in Amendment No. 009 to the solicitation (Question No. 130) by rejecting FMP's request and upholding the mandatory minimum billing threshold requirement.
10. On the basis of the documentary evidence filed with the complaint,5 the Tribunal accepts that FMP received a clear denial of relief from PWGSC in response to its objection on February 14, 2013. In order to meet the requirements of section 6 of the Regulations, FMP had until February 28, 2013, to file a complaint with the Tribunal. However, FMP did not file this complaint with the Tribunal until March 5, 2013, that is, after the expiry of the prescribed time limit.
11. In IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd.,6 the Federal Court of Appeal reviewed the Tribunal's approach on this issue and confirmed its validity as follows:
[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 an RFP should be made within ten days from the moment the alleged ambiguity or lack of clarity became or normally ought to have become apparent.
12. Furthermore, the Tribunal has previously taken the view that where there has been a clear denial of relief in relation to 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.
13. The Tribunal concludes that the complaint was not filed in a timely manner.
DECISION
14. 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 . RFSA/SO, Attachment B entitled “Standing Offer Technical Evaluation” and Attachment C entitled “Supply Arrangement Technical Evaluation”.
4 . Canada's electronic tendering system.
5 . RFSA/SO, Amendment No. 005, Q&A 47.
6 . 2002 FCA 284 (CanLII).