File No. PR-2020-005 KI Design

Decision made Thursday, May 14, 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

KI DESIGN

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]  This complaint was filed by KI Design on May 13, 2020, regarding a Request for Proposal (RFP) (Solicitation No. 08082-190570/A) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Foreign Affairs, Trade and Development for the provision of digital media monitoring services.

[3]  KI Design claims that PWGSC awarded the contract to a non-compliant bidder; that PWGSC failed to evaluate its bid in accordance with the terms of the solicitation; and that PWGSC did not treat its bid fairly, on the basis that PWGSC disqualified its bid for failing to meet mandatory requirements that, according to KI Design, the winning bidder also failed to meet. KI Design seeks to have the designated contract terminated, its bid re-evaluated or the designated contract awarded to KI Design.

ANALYSIS

[4]  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]

[5]  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

[6]  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]

[7]  KI Design raised an objection with PWGSC, the procuring government institution, well within this timeline. On April 28, 2020, PWGSC informed KI Design that its bid had been unsuccessful and that a contract would be awarded to another bidder. KI Design raised its objection to PWGSC the next day, on April 29, 2020.

[8]  On April 29, 2020, in response to KI Design’s objection, PWGSC stated that a re-evaluation of KI Design’s bid was an option and sought its comments on the initial evaluation “before engaging in the re-evaluation”. On May 1, 2020, PWGSC provided KI Design with a copy of the evaluation and stated that the evaluation committee and additional reviewers would re-evaluate KI Design’s bid once PWGSC received its comments.

[9]  On May 8, 2020, KI Design provided PWGSC with detailed comments, which also form the basis of the present complaint before the Tribunal. Based on the submissions before the Tribunal, PWGSC has not yet provided a response to KI Design.

[10]  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]

[11]  In the Tribunal’s view, KI Design has not yet received a denial of relief from PWGSC.

[12]  In previous cases, the Tribunal has held that a complainant has not received denial of relief where it has a reasonable basis to believe that the procuring government institution will reconsider its decision. [9] In the present case, PWGSC has demonstrated a clear intent to re-evaluate KI Design’s bid and remains, to the Tribunal’s knowledge and at this time, engaged in that endeavour.

[13]  The Tribunal therefore considers the complaint to be premature and declines to conduct an inquiry.

[14]  The Tribunal’s decision does not preclude KI Design from filing a new complaint within 10 working days of receiving denial of relief from PWGSC.

[15]  Alternatively, if PWGSC fails to respond to the objection within 30 days of the issuance of these reasons, i.e. June 19, 2020, KI Design may construe PWGSC’s silence as denial of relief. In that case, KI Design may file a new complaint with the Tribunal within 10 working days of that date.

[16]  In either case, where KI Design choses to go forward with a new complaint, it may request that the documents filed in the present complaint be joined to the new complaint.

DECISION

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