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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, c. 47 (4th Supp.).

BY

VALCOM CONSULTING GROUP INC.

AGAINST

THE 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.

Serge Fréchette
Serge Fréchette
Presiding Member

Dominique Laporte
Dominique Laporte
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.

2. The complaint relates to a request for bids for supply arrangements and standing offers (Solicitation No. EN578-055605/E) by the Department of Public Works and Government Services (PWGSC) for the provision of task-based informatics professional services to, inter alia, all federal government departments and Crown corporations.

3. Valcom Consulting Group Inc. (Valcom) alleged that PWGSC improperly declared its bid non-responsive and, therefore, disqualified it, on the basis that certain elements of Valcom's bid were not received electronically, through the Data Collection component (DCC), as required by the instructions included in the solicitation documents.

4. On January 18, 2013, PWGSC issued this solicitation. The solicitation documents included instructions to bidders on the manner for submitting bids. In particular, they required that certain aspects of a bidder's bid be submitted only by electronic transmission, through the DCC.

5. Valcom alleged that it submitted the appropriate aspects of its bid through the DCC on April 4, 2013. Valcom submitted hard copies of other aspects of its bid, as required, on April 5, 2013.

6. From August 2013 to October 2013, there appears to have been correspondence from PWGSC to Valcom, requesting certain clarifications and confirmations of aspects of Valcom's bid.

7. On December 17, 2013, PWGSC wrote to Valcom to inform it that its bid was non-responsive and had therefore been disqualified because certain elements of Valcom's bid were not received electronically. The letter invited Valcom to submit any further questions to PWGSC in writing.

8. On December 20, 2013, Valcom wrote to PWGSC to protest this decision, alleging that it had submitted elements of its bid through the DCC, as required, and requested that its bid be re-instated. No further correspondence was included in the complaint. On January 3, 2014, Valcom filed its complaint with the Tribunal.

9. 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” [emphasis added].

10. In other words, 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. By “actual knowledge of the denial of relief”, the Regulations contemplate explicit rejection of a complainant's requested relief (for example, in a written reply rejecting the complainant's position). In past instances, the Tribunal has interpreted “constructive knowledge of the denial of relief” as other non-explicit situations, including where, after the passage of a reasonable period of time, the complainant's position has yet to be addressed by the government institution.

11. The Tribunal finds that, as prescribed by subsection 6(2) of the Regulations, Valcom made an objection to PWGSC within 10 working days from the date on which it became aware of PWGSC's decision to disqualify its bid. However, as of the date on which the complaint was filed, Valcom's objection of December 20, 2013, appeared to be pending before PWGSC, as no “denial of relief” or copy of any response was provided to the Tribunal. Therefore, in this case, in the absence of a denial of relief, as prescribed by subsection 6(2), the Tribunal does not have jurisdiction to commence an inquiry, and the complaint is determined to be premature.

12. The Tribunal's decision does not preclude any future complaint on the grounds objected by Valcom should PWGSC proceed to dismiss Valcom's objection of December 20, 2013, or if it fails to respond within a reasonable amount of time. In the event that Valcom does file a new complaint, it must do so within the time limits prescribed by subsection 6(2) of the Regulations. In that event, Valcom may request that the documentation already filed with the Tribunal be joined to the new complaint.

DECISION

13. 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, c. 47 (4th Supp.) [CITT Act].

² . S.O.R./93-602 [Regulations].