File No. PR-2020-097 Hawktree Solutions

Decision made Wednesday, March 31, 2021 Decision issued Wednesday, April 7, 2021 Reasons issued Wednesday, April 21, 2021

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

HAWKTREE SOLUTIONS

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.

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.

OVERVIEW OF THE COMPLAINT

[2] This complaint relates to an Invitation to Qualify (ITQ) by the Department of Public Works and Government Services (PWGSC) for the provision of nitrile glove manufacturing in Canada (Solicitation No. 2730081600).

[3] Hawktree Solutions (Hawktree) contests PWGSC’s evaluation of its bid, arguing that it should have received additional points on several rated criteria.

[4] For the reasons below, the Tribunal finds that Hawktree’s complaint has not disclosed a reasonable indication that a trade agreement has been breached. As such, the Tribunal will not conduct an inquiry.

BACKGROUND

[5] Hawktree submitted its bid on January 25, 2021, in joint venture with Blue Sail Medical Co. Ltd. [3]

[6] In a letter dated February 22, 2021, PWGSC notified Hawktree that its bid had not been selected. [4] Upon receipt of this letter on March 1, 2021, Hawktree requested a debrief. [5]

[7] On March 15, 2021, PWGSC provided Hawktree with a written debrief, detailing the evaluation of its bid. [6]

[8] On March 17, 2021, Hawktree objected to certain aspects of the evaluation detailed in the debrief. [7]

[9] On March 19, 2021, PWGSC addressed Hawktree’s objections and indicated that Hawktree’s score remained unchanged. [8]

[10] Hawktree filed its complaint on March 19, 25, and 26, 2021. The Tribunal considered the complaint to be complete as of March 26, 2021.

[11] On March 31, 2021, the Tribunal decided not to conduct an inquiry into the complaint.

ANALYSIS

[12] For the Tribunal to inquire into a complaint, there must be a reasonable indication that the procurement has not been conducted in accordance with the relevant trade agreements. [9] As Hawktree is domiciled in Canada, the Canadian Free Trade Agreement applies [10] in this case. [11]

[13] Hawktree argues that, according to the terms of the solicitation, its bid should have received full points. [12] While Hawktree did not specify which provision of the trade agreements would have been breached, its arguments have a nexus with Article 507.3(b) of the CFTA, which requires that a procuring entity “base its evaluation on the conditions that the procuring entity has specified in advance in its tender notices or tender documentation.”

[14] In reviewing a procurement evaluation, the Tribunal uses the reasonableness standard, meaning that the Tribunal shows deference to the evaluators’ expertise and makes recommendations only if the decision is not supported by a tenable explanation. [13] A procurement evaluation “is unreasonable where the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise failed to conduct the evaluation in a procedurally fair manner.” [14]

[15] The Tribunal finds that Hawktree’s arguments do not raise a reasonable indication that the evaluation was unreasonable in light of the solicitation’s criteria. After closely reviewing Hawktree’s bid against the evaluation criteria set out in the ITQ, the detailed evaluation set out in the debrief, Hawktree’s objections to the debrief, and PWGSC’s response to these objections, the Tribunal fails to see grounds to substitute its judgment for that of the evaluators, as the evaluation appears to be both reasonable and procedurally fair.

[16] The following paragraphs review the criteria where Hawktree feels it should have received a higher score.

Facilities criterion

[17] The facilities criterion required that, in order to receive full points, the bidder must demonstrate successful implementation of at least two production facilities within the last 10 years. [15]

[18] xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [16]

[19] Having reviewed Hawktree’s bid, the Tribunal finds PWGSC’s conclusion reasonable. The relevant sections of the bid contained mere statements without supporting information or precise dates.

Timeline criterion

[20] The timeline criterion required that bidders “[d]escribe in detail a comprehensive overview of the steps needed to ramp up to production.” [17] To receive the full 10 points, bidders had to submit a business plan with “sufficient evidence” of a likely production start date less than a year from contract award. Five points were available for a likely production start date of 13-18 months from contract award.

[21] xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx. [18]

[22] Given the lack of clarity and supportive evidence provided in support of this criterion in Hawktree’s proposal, the Tribunal finds PWGSC’s evaluation reasonable.

Risk analysis and contingency planning criterion

[23] In order to receive full points, this criterion required that bidders provide “a thorough risk assessment analysis outlining the major factors at play and a contingency plan to mitigate ALL risks listed in the risk assessment analysis”, demonstrated by “at least one (1) detailed previous project, completed within the last 10 years from the ITQ closing date, similar in size and scope related to the establishment of a new production line.” [19]

[24] xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [20]

[25] In the Tribunal’s view, while Hawktree’s bid does identify several risks, it often does so without thorough analysis of the risk or mitigation strategies. Therefore, it was reasonable for PWGSC to assess Hawktree’s bid on the basis of the level of detail and analysis it provided.

Relevant experience of proposed management team criterion

[26] This criterion required that bidders provide “a description of the roles and responsibilities of each member of the proposed team to be involved in the establishment and operation of the manufacturing facility(ies)”, as well as relevant experience for each management resource. [21] Bidders would receive full points for demonstrating the following: “Management’s team experience including quality assurance described (>10 years), Organizational chart, resumes, and explanation of management’s level of involvement throughout previous project is provided. Also, at least three (3) of the key management team members have at least five (5) years each of experience relevant to manufacturing.”

[27] xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [22]

[28] The Tribunal notes that the solicitation required a description of the roles and responsibilities of each member of the team, which, in the Tribunal’s view, Hawktree did not provide. The Tribunal finds reasonable the evaluation of the bid by PWGSC against this criterion.

Relevance of core business line in Canada criterion

[29] This criterion allocated points for “established experience as a supplier for manufacturing products in Canada”, and awarded full points for “[e]xtensive experience (>10 years) manufacturing products using components found in nitrile gloves or expertise in chemical manufacturing related to rubber.” [23]

[30] xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [24]

[31] In the Tribunal’s view, Hawktree has failed to provide evidence of experience in “chemical manufacturing related to rubber” that is “in Canada”, as the criterion requires. Upon a close review of Hawktree’s bid, the Tribunal was unable to identify clearly the extent and length of Hawktree’s experience in manufacturing products in Canada. The Tribunal therefore finds reasonable PWGSC’s assessment.

Conclusion

[32] For all of the reasons above, PWGSC’s evaluation of Hawktree’s bid was reasonable and there is no indication of a breach of the trade agreements. Therefore, the Tribunal will not inquire into Hawktree’s complaint.

DECISION

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