File No. PR-2020-006 Terrapure Environmental

Decision made Tuesday, May 19, 2020 Decision and reasons issued Wednesday, May 20, 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

TERRAPURE ENVIRONMENTAL

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 because it is premature.

 

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]  This complaint relates to a Request for Standing Offer (RFSO) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence, for the provision of all labour, materials, tools, equipment, transportation and supervision required to perform Shipboard Generated Hazardous Waste Removal Services in HMC Dockyard and onboard HMC Ships/Submarines within the Halifax Region Municipality (Solicitation No. W3554-206280/A).

[3]  Terrapure Environmental (Terrapure) claims that PWGSC failed to evaluate its bid in accordance with the terms of the solicitation. Specifically, Terrapure challenges PWGSC’s conclusion that the bid did not meet a mandatory technical criterion requiring proof of a quality management system. Terrapure requests that it be awarded the designated contract.

[4]  For the reasons that follow, the Tribunal is of the opinion that the complaint is premature. As such, the Tribunal has decided not to conduct an inquiry into the complaint.

BACKGROUND

[5]  On April 30, 2020, PWGSC informed Terrapure that it would not be awarded a standing offer because it had not met the mandatory technical criterion requiring proof of a quality management system.

[6]  On May 11, 2020, Terrapure requested a debriefing meeting with PWGSC and highlighted the reasons for which it believed its bid was compliant with the mandatory criterion at issue.

[7]  Terrapure filed certain complaint documents with the Tribunal on May 12, 2020. The same day, the Tribunal requested that Terrapure file its correspondence with PWGSC, as well as all solicitation documents.

[8]  On May 14, 2020, Terrapure filed the requested solicitation documents. On May 15, 2020, the Tribunal requested again that Terrapure file its correspondence with PWGSC.

[9]  On May 15, 2020, Terrapure filed the requested correspondence. The Tribunal considered the complaint to be filed at this time. This correspondence included an email from PWGSC, dated May 15, 2020, indicating that it was willing to offer a debriefing meeting the following week.

[10]  On May 19, 2020, the Tribunal decided not to conduct an inquiry into the complaint.

ANALYSIS

[11]  Pursuant to sections 6 and 7 of the Regulations, after receiving a complaint that complies with subsection 30.11(2) of the CITT Act, the Tribunal must determine whether the following four conditions are met before it launches an inquiry:

• (i) the complaint has been filed within the time limits prescribed by section 6 of the Regulations; [3]

• (ii) the complainant is a potential supplier; [4]

• (iii) the complainant is in respect of a designated contract; [5] and

• (iv) the information provided discloses a reasonable indication that the procurement has not been conducted in accordance with the relevant trade agreements. [6]

[12]  For the following reasons, the Tribunal finds that the complaint was not filed within the time limits prescribed by section 6 of the Regulations.

The complaint is premature

[13]  Pursuant to section 6 of the Regulations, a potential supplier must either raise an objection with the procuring government institution or file a complaint with the Tribunal no 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 supplier. [7]

[14]  Terrapure made a timely objection to PWGSC within this window of 10 working days. PWGSC informed Terrapure that its bid was non-compliant on April 30, 2020, and Terrapure objected on May 11, 2020 (i.e. seven working days later).

[15]  A potential supplier who has made a timely objection to the procuring government institution and is denied relief 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. [8]

[16]  In the Tribunal’s view, PWGSC has not yet denied relief to Terrapure. On May 15, 2020, PWGSC notified Terrapure that it would be available for a debriefing meeting the following week. Given that the complaint was filed before the debriefing meeting took place, Terrapure does not yet know whether PWGSC will deny the relief it seeks. The Tribunal therefore considers the complaint to be premature and will not conduct an inquiry at this time. [9]

Timeframe for any future complaint

[17]  Once the debriefing meeting has taken place, Terrapure may file another complaint with the Tribunal within 10 working days of this meeting, if it still considers itself to have been aggrieved.

[18]  Alternatively, if PWGSC does not conduct a debriefing meeting within a reasonable timeframe, Terrapure may also file a new complaint with the Tribunal. In the circumstances, the Tribunal would consider a reasonable delay to be 30 days from the issuance of these reasons, after which time Terrapure may construe the lack of debrief to be a denial of relief. Terrapure would then have 10 working days (starting June 19, 2020) to file a new complaint with the Tribunal.

[19]  In either case, if Terrapure decides to file a new complaint, it may request that documents already filed with this complaint be joined to the new complaint.

DECISION

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