File No. PR-2018-069 Sunny Jaura d.b.a. Jaura Enterprises

Decision made Wednesday, April 3, 2019 Decision issued Thursday, April 4, 2019 Reasons issued Monday, April 15, 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

SUNNY JAURA d.b.a. JAURA ENTERPRISES

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

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 (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.                  This complaint concerns a Request for Proposal (Solicitation No. W0134-13R016/A) (the RFP) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) on October 22, 2012, with a closing date of November 6, 2012, for the provision of hotel and accommodation services in Salina, Kansas, United States.

3.                  Although the complainant, Sunny Jaura d.b.a. Jaura Enterprises (Jaura), submitted a compliant bid, the contract was awarded to the lowest compliant bidder, Fairfield/AmericInn (Fairfield), on November 14, 2012. At the time, Jaura did not object to the contract award decision.

4.                  In April 2017, Jaura submitted an Access to Information and Privacy (ATIP) request regarding this procurement. Jaura obtained information pursuant to this request on March 25, 2019. The information package contained, inter alia, Fairfield’s proposal.

5.                  On March 27, 2019, Jaura filed this complaint with the Tribunal. In Jaura’s view, Fairfield’s bid did not comply with the technical requirements of the RFP and, therefore, PWGSC improperly awarded the contract to a non-compliant bidder.

ANALYSIS

6.                  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]

7.                  The applicable trade agreement in this case is the Agreement on Internal Trade, which was in force at the relevant time.[7]

8.                  For the reasons set out below, the Tribunal has decided not to conduct an inquiry into the complaint. The Tribunal finds that the information filed by the complainant does not disclose a reasonable indication that the government institution, in this case PWGSC, did not conduct the procurement in accordance with the AIT.

Timeliness

9.                  At the outset, the Tribunal will briefly address the timeliness of this complaint, given the length of time that has passed since this procurement was conducted.

10.              While the RFP was published on October 19, 2012, closed on November 6, 2012, and resulted in the award of a contract on November 14, 2012, the Tribunal accepts that Jaura only became aware of the basis of this complaint on March 25, 2019, when it received the information package pursuant to its ATIP request.

11.              There is no evidence before the Tribunal that Jaura knew, or reasonably should have known, of the contents of Fairfield’s bid, which is the basis of this complaint, prior to that date. As the complaint was filed within 10 working days after that date, as required by subsection 6(1) of the Regulations, the Tribunal finds that this complaint is not time-barred.[8]

Reasonable indication of breach

12.              Pursuant to paragraph 7(1)(c) of the Regulations, the Tribunal may conduct an inquiry if, all of the other conditions set out above being met, the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreement.

13.              At issue in this complaint is Article 506(6) of the AIT, which requires government institutions to clearly state the criteria for evaluating proposals in a procurement process and to evaluate the proposals in accordance with the criteria set forth:

Article 506: Procedures for Procurement

. . .

6.         In evaluating tenders, a Party may take into account not only the submitted price but also quality, quantity, transition costs, delivery, servicing, the capacity of the supplier to meet the requirements of the procurement and any other criteria directly related to the procurement that are consistent with Article 504. The tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria.

14.              Jaura argues that by awarding the contract to Fairfield, which in Jaura’s view was a non-compliant bidder, PWGSC did not evaluate the bids based on the criteria set out in the tender documents, as required by Article 506(6).

15.              The relevant provisions of the RFP instructed bidders as follows:

PART 3 – BID PREPARATION INSTRUCTIONS

. . .

Section I:          Technical Bid

In their technical bid, bidders should explain and demonstrate how they propose to meet the requirements and how they will carry out the Work.

. . .

PART 4 – EVALUATION PROCEDURES AND BASIS OF SELECTION

1.         Evaluation Procedures

(a)        Bids will be assessed in accordance with the entire requirement of the bid solicitation including the technical and financial evaluation criteria.

1.1        Technical Evaluation

1.1.1     Mandatory Technical Criteria

Bidders are required to comply with all the mandatory criteria below to be considered responsive, a bid must meet all of the mandatory requirements of this bid solicitation. Bidders that submit proposals that are determined to be non-responsive will receive no further consideration.

. . .

M.2      Accommodations must include all services required at Annex A – Statement of Requirement.

. . .

PART 6 – RESULTING CONTRACT CLAUSES

. . .

2.         Statement of Work

The Contractor must provide the services described at Annex A – Statement of Work.

. . .

STATEMENT OF REQUIREMENT

. . .

3.3        Required Services

The Contractor will provide CF personnel with the following services:

. . .

b.         Bar size refrigerator, microwave, kettle and/or coffee maker;

. . .

d.         Air conditioning;

. . .

j.          Weekly cleaning service with linen change;

. . .

m.        Full bathroom in each unit.

6.         Safe, Clean and Comfortable

As a minimum, rates must be for the provision of safe, clean and comfortable accommodation.

. . .

7.         On-site Visit:

Canada shall maintain option to conduct an on-site inspection as part of the bid evaluation.

16.              Jaura alleges that Fairfield’s technical bid failed to demonstrate that it met the above-cited required services set out in paragraph 3.3 of the Statement of Requirement in the RFP. Specifically, Jaura argues that Fairfield’s bid does not mention a kettle or coffee maker, air conditioning, weekly cleaning service, or full bathroom in each unit, or confirm that it will provide safe, clean and comfortable accommodations, and, as such, Fairfield submitted a non-compliant bid.

17.              In support of its allegation, Jaura refers to the Tribunal’s decision in a past complaint that Jaura brought before the Tribunal, Sunny Jaura d.b.a Jaura Enterprises v. the Department of Foreign Affairs, Trade and Development.[9] In that case, the Tribunal found the complaint valid on the grounds that the evaluators failed to ensure that the winning bidder’s proposal demonstrated compliance with the technical criteria, as required by the terms of that solicitation.

18.              However, the relevant requirements in the RFP in the present complaint are different than those at issue in File No. PR-2018-020. Fundamentally, the relevant provisions of the RFP do not set out stringent bid preparation instructions requiring bidders to demonstrate compliance with all requirements in their technical bids, as was the case in File No. PR-2018-020.

19.              Indeed, the terms of the solicitation in File No. PR-2018-020 unequivocally required that bidders demonstrate compliance with the technical requirements in their proposal, as follows:

The Bidder must provide the necessary documentation to support compliance with the requirements as stated in Annex A – Statement of Work.

. . .

For Mandatory Technical Criteria below, the Bidder and its proposed resource(s) must demonstrate compliance with all the criteria.[10]

[Emphasis added]

20.              By contrast, Section I of Part 3 of the RFP in the present complaint merely provides that “in their technical bid, bidders should explain and demonstrate how they propose to meet the requirements and how they will carry out the Work” (emphasis added). The Tribunal finds that this provision does not set out a clear obligation mandating bidders to demonstrate in their technical bids, with supporting documentation, how they complied with the mandatory criteria.   

21.              This difference in language – i.e. the use of “should” as opposed to “must” – is also evident within the RFP itself. Unlike Section I, Section II of Part 3 of the RFP made it mandatory for bidders to submit their financial bid in a specific format. It provides that “bidders must submit their financial bid in accordance with Annex C” (emphasis added). In the Tribunal’s view, the difference in the wording of these provisions indicates that the requirements for the technical bid are more flexible than those for the financial bid.

22.              Given the above, Section I of Part 3 of the RFP at issue leaves room for interpretation as to what exactly was required in the technical bid. The use of the word “should” as opposed to “must” suggests that bidders could comply with this provision without necessarily demonstrating compliance with all the detailed technical criteria in their proposals. The Tribunal finds that this provision may therefore be reasonably interpreted as requiring bidders to generally explain and demonstrate how they intended to meet the requirements.

23.              This interpretation is consistent with the fact that the RFP included an option for on-site inspections, which were in fact carried out for every bid. In this regard, the Tribunal notes that there is no indication that in File No. PR-2018-020 the procuring entity had the option to conduct on-site inspections. Therefore, in that case, the procuring entity chose to determine whether a proposal was compliant with the technical requirements solely on the basis of the review of the information provided with the bids.

24.              The evaluation procedures are not the same in this case. It was only after PWGSC conducted such inspections of the bidders’ properties that PWGSC decided whether a proposal was compliant with the RFP. In other words, the evaluation procedures contemplated that more than merely the contents of the bid would be examined in order to determine if a proposal would be considered technically responsive.

25.              Moreover, the fact that PWGSC indicated that it could conduct an on-site inspection “as part of the bid evaluation” supports the conclusion that Section I of Part 3 of the RFP did not make it mandatory to demonstrate compliance in the technical bid with all the detailed requirements in the Statement of Requirement. In this way, the RFP contemplated, and conveyed to bidders, that bid evaluation may go beyond a review of the technical bids submitted.

26.              This is further supported by the fact that PWGSC carried out site visits for every bid prior to contract award, treating each bidder in the same manner and conducting its evaluation in accordance with the procedures set out in the RFP. Simply put, PWGSC visited the proposed accommodations and was in a position to determine, after having conducted its inspections, which ones included all the services listed in the Statement of Requirement.

27.              As such, contrary to what is apparently alleged by Jaura, nowhere in the RFP is it expressly indicated that bidders were required to submit a bid demonstrating that they meet or exceed all of the requirements listed in the Statement of Requirement, or that only those bidders whose proposal was deemed compliant on its face could potentially be contacted for an on-site inspection.

28.              For this reason, Part 4 of the RFP (evaluation procedures and basis of selection) must be read together with the provision allowing PWGSC to conduct on-site evaluations. Accordingly, the Tribunal finds that compliance with all of the mandatory criteria of this RFP could be achieved by way of a submitted bid and PWGSC’s findings after an on-site evaluation of the proposed accommodations.

29.              The Tribunal notes that this conclusion is not in conflict with article 1.1.1 of the RFP. Article 1.1.1 provides, inter alia, that “bidders are required to comply with all the mandatory criteria below to be considered responsive.” Article 1.1.1 also states that “bidders that submit proposals that are determined to be non-responsive will receive no further consideration.” In view of the Tribunal’s conclusion that the technical bid may include the accommodations offered for review at the site visit, this provision can be reasonably interpreted to mean that a proposal that is determined by the evaluators to be technically non-responsive after the inspection will not be considered further (that is, the financial bid will not be evaluated).

30.              In summary, given the terms of the RFP, the Tribunal finds that it was permissible and appropriate for PWGSC to evaluate the proposals and assess their compliance against the mandatory technical criteria on the basis of the documents provided with each bid and its conclusions following a visual inspection of the accommodations proposed by each bidder. In short, the evidence indicates that PWGSC’s conduct was in accordance with the evaluation procedures set out in the RFP.

31.              For these reasons, the Tribunal finds that there is no reasonable indication that PWGSC breached Article 506(6) of the AIT by finding Fairfield’s proposal to be compliant with the RFP after a review of Fairfield’s submitted bid and an on-site evaluation. The terms of the RFP did not require PWGSC to eliminate bidders from contention based on the submitted proposals alone. There is also insufficient evidence for the Tribunal to conclude that, as a matter of fact, the accommodations proposed by Fairfield and inspected by PWGSC did not comply with all the technical criteria.[11] Finally, Jaura did not allege that Fairfield’s bid was otherwise non-responsive.

32.              Accordingly, the Tribunal finds that this complaint does not disclose a reasonable indication of a breach of the applicable trade agreement. 

DECISION

33.              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