File No. PR-2020-046 Tangle Ridge Custom Crushing Ltd.

Decision made Wednesday, September 23, 2020 Decision and reasons issued Thursday, September 24, 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

TANGLE RIDGE CUSTOM CRUSHING 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 REQUEST FOR PROPOSAL AND COMPLAINT

[2]  This complaint was submitted by Tangle Ridge Custom Crushing Ltd. (Tangle Ridge) regarding a Request for Proposal (RFP) issued by the Department of Public Works and Government Services (PWGSC) for the remediation of contaminated soil along the Alaska Highway in British Columbia.

[3]  The RFP was issued on July 8, 2020, and closed on July 31, 2020, at 2:00 p.m. PDT. [3]

[4]  On August 31, 2020, Tangle Ridge received an email from PWGSC stating that Tangle Ridge’s bid was not responsive to the mandatory requirements of the RFP because Tangle Ridge listed another bidder as a subcontractor as part of its bid and, contrary to the terms of the RFP, was unable to demonstrate that it had obtained written permission from that subcontractor to do so prior to bid closing.

[5]  Subsequently, on September 2, 2020, Tangle Ridge sent a letter dated September 1, 2020, to PWGSC requesting reconsideration of PWGSC’s decision of non-compliance on the grounds that it was not clear to Tangle Ridge that written permission from the subcontractor named in its bid needed to be provided prior to bid closing. PWGSC denied relief on September 10, 2020, maintaining that Tangle Ridge’s bid was not responsive to the mandatory requirements of the RFP.

[6]  On September 18, 2020, Tangle Ridge filed the present complaint. According to Tangle Ridge, the procurement process administered by PWGSC was not open, transparent and competitive, and PWGSC’s decision that Tangle Ridge’s bid was non-compliant with the mandatory requirements of the RFP was unfair.

ANALYSIS

[7]  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.

[8]  For the following reasons, the Tribunal finds that the complaint discloses no reasonable indication that PWGSC breached its obligations under the applicable trade agreements.

No reasonable indication of breach

[9]  In the Tribunal’s view, the RFP clearly set out that where a bidder listed a subcontractor as part of its bid, the bidder was required to obtain written permission from that subcontractor to do so, prior to bid closing. To this point, paragraphs 3 and 4 of S109 of the RFP read as follows:

3. An arrangement whereby Canada contracts directly with a Contractor who may retain subcontractors to perform portions of the services is not a joint venture arrangement. A Subcontractor may, therefore, be proposed as part of the bidder team by more than one Bidder. The Bidder warrants that it has written permission from such Subcontractors to propose their services in relation to the services to be performed.

4. Notwithstanding paragraph 3 above, in order to avoid any conflict of interest, or any perception of conflict of interest, a Bidder shall not include in its submission another Bidder as a member of its team, as a Subcontractor. . . .

[Emphasis added]

[10]  It was incumbent on Tangle Ridge to exercise due diligence in the preparation and delivery of its bid to ensure that it understood and was compliant with all the instructions in the RFP. [4] Based on the evidence provided, Tangle Ridge failed to do so because it did not obtain written permission from a subcontractor that was another bidder to be included in Tangle Ridge’s bid as a subcontractor prior to bid closing. Indeed, the evidence on file is that Tangle Ridge only obtained written confirmation of its subcontractor’s willingness to participate in the solicitation in issue after bid closing. To be sure, proof of that willingness could be given after bid closing, but the solicitation required that permission be obtained in writing prior to bid closing, not after. Accordingly, the Tribunal finds no indication that PWGSC erred in rejecting Tangle Ridge’s proposal.

[11]  For the reasons set out above, the Tribunal finds that Tangle Ridge has not established a reasonable indication that PWGSC failed to carry out the procurement in accordance with its obligations under the applicable trade agreements.

DECISION

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