File No. PR-2019-063 Toromont Material Handling, a division of Toromont Industries Ltd.

Decision made Tuesday, March 10, 2020 Decision issued Wednesday, March 11, 2020 Reasons issued Thursday, March 26, 2020

 

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

TOROMONT MATERIAL HANDLING, A DIVISION OF TOROMONT INDUSTRIES LTD.

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.

 

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 relates to a request for proposal (RFP) (Solicitation No. 21120-195048/C) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Correctional Service of Canada for the provision of personal electric carrier carts.

[3]  The complainant, Toromont Material Handling, a division of Toromont Industries Ltd. (Toromont), alleged that PWGSC improperly deemed its bid non-compliant with the mandatory requirements of the RFP. As a remedy, Toromont requested that the designated contract be terminated and awarded to it. Toromont did not request any costs.

BACKGROUND

[4]  The RFP was issued on September 24, 2019, with a bid closing deadline of November 4, 2019. Toromont submitted its bid on November 3, 2019. [3]

[5]  On February 5, 2020, PWGSC sent a request for clarification to Toromont. [4] Toromont was requested to identify where in its bid it had demonstrated compliance with points 7 and 8 of the mandatory criteria, which provided as follows:

7	Must have a fully enclosed rigid cabin with two (2) windowed doors (Cabin must not be soft vinyl, nylon or canvas material)
8	Must have a full windshield [5]

[6]  On February 7, 2020, Toromont replied that compliance with points 7 and 8 was demonstrated at pages 6 and 7 of its technical bid. [6] Page 6 of Toromont’s technical bid is the second page of a two-page brochure for the personal electric carrier cart it was proposing to supply, the Cushman Hauler® 800X. Page 7 is a document prepared by Toromont entitled “Technical Requirements – Compliance Sheet”. [7] According to Toromont, the information provided in these two pages confirmed the inclusion of a cab and full windshield in the bid.

[7]  On February 13, 2020, PWGSC informed Toromont that its bid was not successful. In the letter, PWGSC stated that Annex A to the RFP required that “[b]idders must provide technical documentation, photos, and/or brochures, to clearly demonstrate Bidder’s compliance with the specifications detailed within this solicitation . . . .” PWGSC explained that Toromont had not provided documentation that clearly demonstrated its compliance with points 7 and 8 of the mandatory criteria, and that accordingly its bid was found to be non-compliant. [8]

[8]  On February 13, 2020, Toromont notified PWGSC that it wished to exercise its option to engage the recourse mechanism, but provided no details as to the reason for its objection to PWGSC’s decision. [9]

[9]  On February 14, 2020, PWGSC sent a follow-up email inviting Toromont to a debriefing meeting and providing further information regarding the reasons Toromont’s bid was considered non-compliant with points 7 and 8 of the mandatory criteria. [10] PWGSC referred to clause 4.1.1.1 of the RFP, which provided as follows:

4.1.1 Technical Evaluation

4.1.1.1 Bidders must submit, with their bid, the followings [sic] documents:

1) Annex “A” – Specifications – Personal Electric Carrier Cart; and

2) Bidders must demonstrate their compliance with all technical evaluation criteria detailed in Annex “A” – Specifications – Personal Electric Carrier Cart, by providing substantial information describing completely and in detail how each requirement is met or addressed. Simply repeating the statement contained in the bid solicitation is not sufficient. [11]

[Emphasis added]

[10]  PWGSC explained that the compliance sheet at page 7 of Toromont’s technical bid simply repeated statements from the bid solicitation document, that these statements were not considered sufficient to demonstrate compliance, and that no other substantial information regarding points 7 and 8 was provided. PWGSC further explained that Toromont’s response to its clarification request of February 5, 2020, also did not identify where in Toromont’s bid “technical documentation, photos, and/or brochures, to clearly demonstrate compliance” with points 7 and 8 of the mandatory criteria, in accordance with Annex A to the RFP, could be found.

[11]  On February 14, 2020, Toromont accepted the invitation for a debriefing meeting, and also provided an explanation for its objection. [12] Toromont stated that the brochure included in the bid referred to the carrier carts having a “ROPS (roll-over protective structures)-certified cab”, which Toromont stated would fully meet points 7 and 8 of the mandatory criteria. Toromont also stated that it was clear from its bid that a full cab and windshield were included in the bid price.

[12]  On February 19, 2020, PWGSC held a debriefing meeting with Toromont. According to Toromont, at the meeting PWGSC acknowledged that “ROPS-certified cab” was included in its bid, but stated that this term needed further explanation. In addition, PWGSC stated that this feature alone did not demonstrate compliance with points 7 and 8 of the mandatory criteria. [13]

[13]  On February 20, 2020, Toromont sent additional information regarding ROPS standards to PWGSC. Toromont noted that this was an industry standard and not a manufacturer-specific feature which would require further explanation, and stated that this standard has been included in other bid specifications for similar vehicles. [14]

[14]  On February 21, 2020, PWGSC replied that ROPS certification was not a mandatory requirement of this solicitation. Since the standard did not form part of the RFP and was not included in Toromont’s bid, PWGSC could not take it into account in evaluating Toromont’s bid. Further, with respect to the fact that the standard had been included in other bids, PWGSC recalled that bidders should not cross-reference between solicitations as each solicitation is a stand-alone document with its own individual requirements. [15]

[15]  On February 25, 2020, Toromont informed PWGSC that it would proceed with the recourse mechanism. [16]

[16]  On March 4, 2020, Toromont filed its complaint with the Tribunal.

ANALYSIS

[17]  Pursuant to sections 6 and 7 of the Regulations, the Tribunal may conduct an inquiry into a complaint only if certain conditions are met. In particular, paragraph 7(1)(c) of the Regulations provides that the information provided must disclose a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements. In this case, the Tribunal finds that the complaint does not disclose a reasonable indication that actions taken by PWGSC breached the relevant trade agreements. [17]

[18]  The trade agreements require procuring entities to evaluate bids in accordance with the essential criteria specified in the tender documentation. The trade agreements also generally provide that, to be considered for contract award, a tender must conform to the essential requirements set out in the tender documentation, and that procuring entities must award contracts in accordance with the criteria and essential requirements specified in the tender documentation. [18]

[19]  When assessing whether these procedures were followed, the Tribunal shows deference to evaluators and interferes only if an evaluation is unreasonable, e.g. if the evaluators have not applied themselves in evaluating a bidder’s proposal, wrongly interpreted the scope of a requirement, ignored vital information provided in a bid, based their evaluation on undisclosed criteria, or otherwise failed to conduct the evaluation in a procedurally unfair way. [19]

[20]  Finally, it is well-established that bidders bear the onus of demonstrating that their bids meet the mandatory criteria of a solicitation at the time of bid closing. [20] The Tribunal has also made it clear that bidders bear the responsibility of preparing their bids diligently in accordance with the instructions in the solicitation, taking care to ensure that the information provided clearly demonstrates compliance. [21]

[21]  In accordance with clause 4.1.1.1 and Annex A to the RFP, bidders were required to provide substantial and detailed information, including technical documentation, photos, and/or brochures, to demonstrate compliance with the mandatory criteria of the bid. The RFP further provided that repeating statements found in the requirements, without providing additional information to substantiate those statements, would not be considered sufficient.

[22]  In its bid, Toromont provided a “Technical Requirements – Compliance Sheet” that largely reproduced the criteria listed in Annex A. Next to point 7, the bidder indicated “Yes, Cab included”; next to point 8, the bidder indicated “yes”. Toromont also provided a two-page brochure in support of its technical bid. The photos in the brochure show a vehicle with an open cab and a half windshield, which would not satisfy points 7 and 8 of the mandatory criteria. [22]

[23]  It is true that, under the “Options and Accessories” heading on page two of the brochure, “ROPS-certified cab” is listed. However, despite Toromont’s statements to the contrary, it was not clear from the bid that this option was included. Furthermore, no information regarding ROPS certification was provided with the bid; Toromont submitted this information to PWGSC after the debriefing meeting. Accordingly, the evaluators had no way of knowing that adherence to this standard would require the inclusion of a hard cab and a full windshield.

[24]  Accordingly, it was reasonable for PWGSC to find that the photos and technical documentation submitted with the bid did not clearly demonstrate compliance with points 7 and 8 of the mandatory criteria, and to disqualify Toromont’s bid on that basis. As a result, the Tribunal finds that there is no reasonable indication that PWGSC breached the trade agreements in its evaluation of Toromont’s bid.

DECISION

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