File No. PR-2018-054 Ascent Helicopters Ltd.

Decision made Thursday, January 17, 2019 Decision issued Friday, January 18, 2019 Reasons issued Thursday, January 31, 2019

 

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

ASCENT HELICOPTERS INC.

AGAINST

THE DEPARTMENT OF NATIONAL DEFENCE

DECISION

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.

The statement of reasons will be issued at a later date.

 

STATEMENT OF REASONS

[1]  Subsection 30.11(1) of the Canadian International Trade Tribunal Act [1] 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 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]  The complaint concerns a Request for Proposals (RFP) (Solicitation No. W2215-195004/A) issued by the Department of National Defence (DND) on October 22, 2018, for the provision of exclusive services of one (1) float equipped helicopter with pilot for the movement of personnel and equipment in support of Canadian Armed Forces and United States Navy operations on the Nanoose Range at the Canadian Forces Maritime Experimental and Test Ranges, Nanoose Bay, British Columbia. The contract period is from January 1, 2019, to March 31, 2022.

[3]  On November 16, 2018, Ascent Helicopters Ltd. (Ascent) submitted a bid in response to the solicitation and on December 19, 2018, was informed that its bid had been deemed non-compliant in that it did not meet the condition of holding a valid organization security clearance.

[4]  Ascent sent its complaint to the Tribunal on January 7, 2019. However, the complaint did not comply with subsection 30.11(2) of the CITT Act, and additional information was required before it could be considered to have been filed. On January 8, 2019, pursuant to subsection 30.12(2) of the CITT Act, the Tribunal requested that Ascent provide the required information. The Tribunal received the complete complaint on January 11, 2019.

[5]  In its complaint, Ascent submits that the bid period did not allow for sufficient time to obtain a valid security clearance, as per the terms of the RFP. Ascent argues that the timeframe between the issuance of an RFP and the submission deadline should be adequate to allow for the completion of the security clearance process.

ANALYSIS

[6]  On January 17, 2019, the Tribunal decided not to conduct an inquiry into the complaint, pursuant to subsection 30.13(1) of the CITT Act.

[7]  Pursuant to sections 6 and 7 of the Regulations, the Tribunal may conduct an inquiry if the following conditions are met:

• the complaint has been filed within the time limits prescribed by section 6; [3]
• the complainant is a potential supplier; [4]
• the complaint is in respect of a designated contract; [5] and
• the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements. [6]

[8]  For the following reasons, the Tribunal finds that this complaint has not been filed within the time limits prescribed by section 6 of the Regulations. Therefore, the complaint does not meet the first condition for the initiation of an inquiry.

The complaint is not timely

[9]  Ascent’s allegation is that the bid period did not allow for sufficient time to obtain a valid security clearance, as per the mandatory terms of the RFP. Ascent’s allegation is that the bid period did not allow for sufficient time to obtain a valid security clearance, as per the mandatory terms of the RFP. More specifically, it submits that the timeframe between the issuance of the RFP and the closing date for the submission of proposals was too short to allow bidders to complete the process required to obtain the security clearance required by the RFP. As a result, Ascent claims that the procurement process was neither open nor fair.

[10]  Section 6.1.1. of the RFP provides that the bidder must hold a valid organization security clearance as indicated in Part 7 – Resulting Contract Clauses:

6.1.1 At the date of bid closing, the following conditions must be met:

(a) the Bidder must hold a valid organization security clearance as indicated in Part 7 - Resulting Contract Clauses;

. . .

7.1 Security Requirements

7.1.1 The following security requirements (SRCL and related clauses provided by the Contract Security Program) apply and form part of the Contract.

7.1.1.1 The Contractor/Offeror must, at all times during the performance of the Contract/Standing Offer, hold a valid Facility Security Clearance at the level of SECRET, issued by the Canadian Industrial Security Directorate (CISD), Public Works and Government Services Canada (PWGSC).

[11]  According to Ascent, the RFP referred to a website outlining the security clearance process, which indicated that the process would take up to six months. It also required a sponsor by a source approved by the Government of Canada. The reference to the website outlining the process for obtaining the required security clearance is indeed mentioned twice in the RFP. However, the bidding period lasted only 25 days, that is, from the date of the issuance of the RFP on October 22, 2018, to the bid closing date of November 16, 2018.

[12]  As such, Ascent’s ground of complaint pertains to the mandatory terms of the RFP. Its grievance is that the security requirements set out in the RFP were too stringent and that by allowing insufficient time for potential suppliers to obtain the required security clearance, the procuring entity essentially and inappropriately engaged in sole-source contracting.

[13]  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) provides 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”.

[14]  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 to file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time and the government institution denies it relief, 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.

[15]  The Tribunal is of the opinion that if a potential supplier believes that the criteria set out in an invitation to tender are overly stringent and not impartial, as is claimed in the case at hand, it must file a complaint in a timely manner. The procurement review process does not provide for grievances to be accumulated and then presented only when a proposal is rejected. In this regard, in IBM Canada Ltd v. Hewlett Packard (Canada) Ltd., [7] the Federal Court of Appeal stated the following:

[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 a [Request for Proposal] should be made within ten days from the moment the alleged ambiguity or lack of clarity became or normally ought to have become apparent.

[16]  The Court added that a bidder must not adopt a “wait and see attitude” and make its challenge once the procurement process is over. It stated that this “is precisely the type of attitude that the procurement process and Regulations seek to discourage.”

[17]  Since Ascent’s issue with this procurement process stems from the mandatory criteria set out in the RFP, it could therefore not wait for the rejection of its proposal before making an objection to the relevant government institution, or filing a complaint with the Tribunal. It was incumbent on Ascent to do so within 10 working days after the day it became aware or reasonably should have become aware of the security requirements set out in the RFP and of the particulars of the process to obtain the required security clearance, including the time it could take to complete the process.

[18]  In such situation, there is authority for the Tribunal to consider, in the absence of evidence to the contrary, that a complainant became aware, or reasonably should have become aware, of its grounds of complaint in relation to the mandatory requirements of a solicitation on the date the tender documents were issued. [8] Following this reasoning, Ascent should reasonably have known about the alleged impossibility to meet the security requirements as early as October 22, 2018. It would then have had until November 5, 2018, to either object to DND or file a complaint with the Tribunal, which it failed to do.

[19]  However, in this case, the process to obtain the required security clearances was not spelled out in the RFP. As previously mentioned, the RFP referred prospective bidders to a website where they could learn about the security clearance application process. Thus, Ascent had to review more than the terms of the RFP to become aware of its ground of complaint. The information filed with the complaint does not indicate exactly when Ascent became aware of the fact that the security clearance process could take up to six months. In these circumstances, the Tribunal is prepared to give Ascent the benefit of the doubt and find that it is reasonable that the basis of the complaint likely became known to Ascent sometime after October 22, 2018.

[20]  Ascent submitted its proposal on November 16, 2018, and did not raise its concerns about the terms of the RFP with DND. According to the complaint, at the time of the submission of its proposal, Ascent only possessed two of the three types of security clearances required by the RFP. Thus, when Ascent submitted its proposal, it knew that it did not comply with the security requirements of the RFP and that it needed more time to complete the security clearance process to obtain the facility security clearance it was missing, as required by the RFP. In light of these facts, the Tribunal can only conclude that Ascent became aware, or reasonably should have become aware, of its grounds of complaint before it submitted its bid. Put another way, the Tribunal finds that the basis of the complaint became known or reasonably should have become known to Ascent on November 16, 2018 (the bid closing date), at the latest.

[21]  On November 21, 2018, DND sent an e-mail to Ascent inquiring about the missing security clearance. Ascent alleges that a telephone conversation occurred that day, following which an e-mail was sent on November 23, 2018, in which Ascent outlined its concerns with the requirement to have certain security clearances while the RFP did not provide sufficient time to obtain them. It included a request that a DND representative sponsor it for its application, as required by the mandated security clearance process. On November 26, 2018, DND told Ascent that, while it would be willing to sponsor Ascent for future requirements, the solicitation process at issue was closed and as such, it could not sponsor it for this process.

[22]  On November 28, 2018, Ascent replied to DND and complained that the process was not a fully open one, to which DND responded simply by stating that it would only discuss Ascent’s issue upon completion of the process, which was still in the evaluation phase. On the same date, Ascent replied and reiterated its position that the process was neither open nor fair. It also formally requested an extension to allow it to submit a bid that could comply with the RFP’s security requirements.

[23]  The Tribunal finds that Ascent’s November 28, 2018, e-mails to DND constitute an objection to DND which was made within 10 working days after the day on which the basis of the complainant reasonably became known to Ascent (i.e. November 16, 2018), as prescribed by subsection 6(2) of the Regulations.

[24]  On November 30, 2018, DND responded to Ascent’s request by stating that it could not discuss Ascent’s concern and that bidders would be invited to a debrief session once the evaluation process was complete and bidders were informed of the results of the process. Accordingly, the Tribunal finds that DND made it clear that it would not alter the terms of the RFP to give additional time to Ascent for it to obtain the required security clearances, or otherwise extend the time period to submit proposals. As such, the Tribunal finds that DND denied the relief sought by Ascent on November 30, 2018. Ascent had actual or constructive knowledge of this denial of relief on that date.

[25]  Accordingly, pursuant to subsection 6(2) of the Regulations, Ascent had 10 working days after November 30, 2018, to file its complaint with the Tribunal, that is, until December 14, 2018. However, the Tribunal did not receive the complaint until January 7, 2019, and was not considered filed until January 11, 2019, when certain information to correct the deficiencies in the incomplete complaint was received. [9] This complaint was therefore filed outside the time limit established in the Regulations.

[26]  The Tribunal also notes that even if it were to consider that the basis of the complaint only became known to Ascent on the date on which it received its letter of regret from DND (i.e. on December 19, 2018), the complaint would still not have been filed within the prescribed time limit. In that hypothetical scenario, Ascent would have had to file its complaint with the Tribunal by January 8, 2019, to comply with section 6 of the Regulations. As previously outlined, the complaint was only considered filed on January 11, 2019.

[27]  As such, the Tribunal finds that this complaint was not filed within the time limits prescribed by the Regulations.

DECISION

[28]  Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.