File No. PR-2020-020 Marine International Dragage (M.I.D.) Inc.

Decision made Thursday, July 30, 2020 Decision issued Tuesday, August 4, 2020 Reasons issued Wednesday, August 19, 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

MARINE INTERNATIONAL DRAGAGE (M.I.D.) INC.

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 given that the complainant has not yet received a response to its objection from the government institution.

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 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, filed on July 28, 2020, by Marine International Dragage (M.I.D.) Inc. (M.I.D.), relates to an invitation to tender (ITT) (Solicitation No. EE517-210222/A) issued by the Department of Public Works and Government Services (PWGSC) for the removal of concrete structures located at the bottom of the Richelieu River, in Lacolle, Quebec.

[3]  M.I.D. maintains that the procurement process was marred by a conflict of interest, as the contract was awarded to the company that had prepared the plans and specifications for the work requested. M.I.D. therefore maintains that this company was privy to privileged information concerning the work. M.I.D. also points out that the winning bidder’s business registration number is no longer valid.

[4]  For the reasons set out below, the Tribunal considers that the complaint is premature and has therefore decided not to conduct an inquiry into the complaint.

PROCUREMENT PROCESS

[5]  The ITT was issued on June 15, 2020, with a closing date of July 2, 2020. The information sheet for the ITT that appears on buyandsell.gc.ca indicates that this procurement is subject to the Canadian Free Trade Agreement.

[6]  The ITT comprised technical specifications describing the work to be done. Appendix A of theses specifications contains an underwater inspection technical report prepared by MVC Océan Inc. The report essentially lists the concrete structures to be removed, giving their dimensions and describing their condition as well as the nature and quality of the surrounding river bed. Certain information contained therein is redacted.

[7]  Two amendments to the ITT were issued on June 17 and 18, 2020. These amendments contain PWGSC’s responses to three questions asked by the bidders. Questions 1 and 2 inquire whether the firm having performed the inspection is allowed to submit a bid for the removal. PWGSC responds to these questions by stating that “[s]ince all inspection results were made public, Canada was not considering prohibiting the firm that conducted the inspection from bidding. Note that Canada may revise this position under the terms of clause GI17 (2012-07-16) Conflict of Interest – Unfair Advantage of the solicitation”.

[8]  M.I.D. filed its bid in response to the ITT on July 1, 2020. On July 20, 2020, the contract was awarded to 9031-3560 Québec Inc., whose legal name is MVC Océan.

[9]  On July 27, 2020, the complainant sent two emails to PWGSC. In the first email, the complainant notes that the business registration number 9031-3560 Québec Inc. has been removed from the business register of Quebec. The complainant also claims that MVC Océan is in conflict of interest, as it is the firm having prepared the ITT. It claims that the technical specifications accompanying the ITT contained redacted sections and that when it requested access to this information, it was told that it was the costs estimated by MVC Océan. The complainant also notes that the impropriety of allowing MVC Océan to participate as a bidder was stressed in the questions directed to PWGSC during the procurement process. The complainant challenges the validity of the contract award and states that it will file a complaint with the appropriate organizations.

[10]  In a second email sent to PWGSC on the same day, the complainant requested that the contract awarded to 9031-3560 Québec Inc. (MVC Océan) be cancelled and awarded to M.I.D.

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;

  (ii)  the complainant is a potential supplier;

  (iii)  the complaint is in respect of a designated contract; and

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

[12]  Pursuant to section 6 of the Regulations, a potential bidder may file an objection with the government institution involved in the procurement process or file a complaint with the Tribunal within 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier.

[13]  The Tribunal considers that the emails sent by the complainant to PWGSC on July 27, 2020, 7 days after the contract award, constitute an objection within the meaning of section 6 of the Regulations.

[14]  Pursuant to subsection 6(2) of the Regulations, a potential supplier who has made a timely objection to the 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 it has actual or constructive knowledge of the denial of relief.

[15]  At the time of the filing of the complaint with the Tribunal, PWGSC had yet to respond to M.I.D.’s objection. Therefore, PWGSC had not yet denied relief to the complainant. For this reason, on July 30, 2020, the Tribunal decided not to conduct an inquiry into the complaint because it was premature. The Tribunal’s decision was issued on August 4, 2020.

[16]  The Tribunal’s decision did not prevent M.I.D. from filing a complaint at a later time, i.e. within 10 working days after the day on which it received a denial of relief from PWGSC, should such a denial be received. After receiving a response to its objection, M.I.D. sent a new complaint to the Tribunal on August 6, 2020. The Tribunal has registered this complaint under File No. PR-2020-023.

DECISION

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