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

SOFTSIM TECHNOLOGIES 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. Since the complainant has not yet received a definitive response to its objection to the government institution, the Tribunal cannot consider this matter at this time.

Jean Bédard                            
Jean Bédard, Q.C.
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 (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 concerns a Request for Proposal (RFP) issued by the Department of National Defence (DND) on July 9, 2018, for the provision of four network support specialists to assist the Carling Campus Project organization by participating in IT network equipment installation, IT support, receiving IT equipment, accounting for IT equipment, documentation and processes.

3.                  On August 15, 2018, the DND informed SoftSim Technologies Inc. (SoftSim) that its bid was not the lowest compliant bid and that the contract was awarded to Maverin Inc. The information on file indicates that on August 20, 2018, SoftSim e-mailed the DND objecting to this result on the basis that the winning bidder would not have secured the availability of the resources that it proposed in its bid (purportedly in violation of clause 5.3(a) of the RFP).

4.                  In this regard, an e-mail from the DND dated August 23, 2018, indicates that the DND is reviewing SoftSim’s complaint and will respond as soon as possible. SoftSim sent a further e-mail to the DND on August 27, 2018, in which it reiterated the basis of its complaint and confirmed that all four of its proposed team members are available. There is no information on file indicating that SoftSim received a response to its second e-mail.

5.                  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.”

6.                  The objection process affords the parties an opportunity to resolve their dispute without having to come before the Tribunal. Like any alternative dispute resolution process, this deserves to be encouraged. Accordingly, once an objection has been made, the Tribunal will let that process run its course before considering a complaint.

7.                  In the present case, the information on file indicates that SoftSim has not yet been denied relief, as its objection is still under review by the DND. Given the circumstances at hand, SoftSim does not have actual knowledge and cannot be deemed as having constructive knowledge of a denial of relief by the DND within the meaning of subsection 6(2) of the Regulations. For those reasons, the Tribunal cannot consider this matter at this time.

8.                  The Tribunal’s decision does not preclude SoftSim from filing a new complaint within 10 working days of receiving, as the case may be, a denial of relief from the DND. Furthermore, if the DND fails to respond to SoftSim’s concerns within 30 days of the DND’s e-mail dated August 23, 2018, the Tribunal could construe the DND’s silence as a constructive denial of relief. In that case, SoftSim would then be able to file a new complaint with the Tribunal within 10 working days of that date. In any case, SoftSim may request that documents already filed with the Tribunal be joined to the new complaint.

9.                  If SoftSim files a new complaint, the Tribunal will decide anew whether to inquire into the complaint.

DECISION

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

Jean Bédard                            
Jean Bédard, Q.C.
Presiding Member