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 (4^th Supp.).

BY

CFM SERVICES INC.

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

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.

Georges Bujold                       
Georges Bujold
Presiding Member

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.

2.                  This complaint relates to a Request for Proposal (RFP) (Solicitation No. W6854-190146/A) issued on January 29, 2019, by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the provision of quality testing of transformer oil and other various electrical testing, as well as additional testing on an as and when required basis to ensure that the transformers located at CFB Borden, Ontario, are functional.

3.                  The complainant, CFM Services Inc. (CFM), alleges that its bid was improperly declared non‑responsive and requests that the Tribunal declare its bid compliant with the RFP and that it be awarded the contract.

4.                  Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint because it was not filed within the time limits prescribed by Section 6 of the Regulations. The reasons for this decision follow.

BACKGROUND OF THE COMPLAINT

5.                  On May 9, 2019, CFM received a letter from PWGSC informing it that its proposal had been rejected as it did not meet all the mandatory requirements of the RFP. In this case, the second mandatory technical criterion specified that bidders were required to provide a written list of three contracts outlining certain details such as a contract number. CFM neglected to include the number of the contract in its first example. In its complaint filed with the Tribunal, CFM states that it had not included a number because there was none.

6.                  On May 10, 2019, CFM made an objection to PWGSC and, on the same day, received a letter from the government institution informing it that it had been denied relief.

7.                  CFM sent a letter to the Tribunal dated May 10, 2019, providing certain information and indicating that it wished to submit a complaint. However, the Tribunal was of the opinion that the complaint lacked the necessary information for it to be considered properly filed pursuant to subsection 30.13(2) of the CITT Act, which provides, among other things, that a complainant must include all information and documents relevant to the complaint that are in the complainant’s possession.

8.                  That same day, the Tribunal sent a letter to the complainant asking that the necessary information be provided so that the complaint could be considered properly filed. This letter was a notice pursuant to subsection 30.12(2) of the CITT Act, specifying the deficiencies to be corrected to properly file the complaint. Having received no response, the Tribunal made two follow-up telephone calls to the complainant on May 13 and 21, 2019.

9.                  On May 30, 2019, still having received no response from CFM, the Tribunal followed up in writing. That same day, the complainant sent certain information to the Tribunal but omitted to include the information and documents requested by the Tribunal in its letter of May 10, 2019. Again on May 30, 2019, the Tribunal wrote to the complainant requesting that the missing information be provided. On the same day, CFM provided the necessary documents and the complaint was considered properly filed.

ANALYSE

10.              Pursuant to sections 6 and 7 of the Regulations, having determined that a complaint complies with subsection 30.11(2) of the CITT Act, the Tribunal may conduct an inquiry if the following four conditions are met:

(i)   the complaint has been filed within the time limits prescribed by section 6 of the Regulations;

(ii)  the complainant is a potential supplier;

(iii) the complaint is in respect of a designated contract;

(iv) the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements.

11.              Subsection 6(2) of the Regulations provides that a potential supplier that 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.”

12.              In the present case, the clock began to run on May 10, 2019, and CFM therefore had until May 27, 2019, to file its complaint.

13.              Although CFM filed information with the Tribunal on May 10, 2019, with regard to this complaint, the complaint was incomplete and did not meet the requirements prescribed pursuant to subsection 30.11(2) of the CITT Act. As mentioned above, on May 10, 2019, the Tribunal stated the deficiencies to be corrected in its letter to CFM, specifying the additional information and documents required for the complaint to be compliant. As it had not received a response from CFM, the Tribunal followed up several times, but CFM did not file all the required information until May 30, 2019.

14.              A complaint is not considered to have been filed until all the information and documents required pursuant to section 30.11 of the CITT Act have been filed with the Tribunal. This conclusion complies with paragraph 96(1)(b) of the Canadian International Trade Tribunal Rules, which provide as follows:

A complaint shall be considered to have been filed . . . 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.

15.              In this case, that day was May 30, 2019, i.e. after the expiry of the time limits prescribed by section 6 of the Regulations, which provides that CFM had until May 27, 2019, at the latest, to file its complaint. For these reasons, as the complaint was filed outside the prescribed time limits, the Tribunal cannot conduct an inquiry into the complaint.

DECISION

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

Georges Bujold                       
Georges Bujold
Presiding Member