File No. PR-2020-100 Providence Group

Decision made Thursday, April 1, 2021 Decision and reasons issued Friday, April 9, 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

PROVIDENCE GROUP

AGAINST

THE DEPARTMENT OF FOREIGN AFFAIRS, TRADE AND DEVELOPMENT

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.

OVERVIEW

[2] This complaint relates to a Request for Proposals (RFP) by the Department of Foreign Affairs, Trade and Development (DFATD) for the provision of consulting and professional services in relation to the Canada-Ukraine Trade and Investment Support (CUTIS) Project (Solicitation No. 2020-P001339).

[3] The complainant, Providence Group, alleges that DFATD failed to clearly identify the requirements of the procurement and the criteria to be used in the evaluation of bids, with the result that Providence Group was unfairly denied being awarded the contract. Providence Group requests that its bid be re-evaluated and that it be awarded the contract.

[4] For the reasons below, the Tribunal finds that the value of the procurement in question is less than the applicable monetary threshold under any of the trade agreements. Accordingly, the Tribunal cannot accept the complaint for inquiry.

BACKGROUND

[5] DFATD published the RFP in late 2020 with a closing date of December 23, 2020. [3]

[6] Providence Group submits that it submitted its proposal in compliance with the closing date. [4]

[7] On February 25, 2021, DFATD informed Providence Group that its proposal did not comply with mandatory evaluation criterion M2 and was therefore rejected on the basis of non-compliance. That same day, Providence Group requested a debriefing.

[8] On March 5, 2021, DFATD debriefed Providence Group via telephone regarding the evaluation and rejection of its proposal.

[9] On March 7, 2021, DFATD sent Providence Group a follow-up email confirming its position that the evaluation was conducted fairly and providing information on potential recourse to the Tribunal and the Office of the Procurement Ombudsman.

[10] On March 21, 2021, Providence Group requested further information regarding the evaluation of proposals, specifically the number of other bidders and the number of proposals that respectively passed and failed criterion M2.

[11] On March 22, 2021, DFATD confirmed that Providence Group’s was the only evaluated proposal.

[12] On March 26, 2021, Providence Group submitted the present complaint to the Tribunal.

[13] On April 1, 2021, the Tribunal decided not to conduct an inquiry into Providence Group’s complaint.

ANALYSIS

[14] Subsection 7(1) of the Regulations sets out the conditions which must be met in order for the Tribunal to decide to conduct an inquiry. Paragraph 7(1)(b) requires that the complaint be “in respect of a designated contract”.

[15] Section 30.1 of the CITT Act defines “designated contract” as follows:

designated contract means a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution and that is designated or of a class of contracts designated by the regulations; (contrat spécifique)

[16] Subsection 3(1) of the Regulations provides as follows:

3 (1) For the purposes of the definition designated contract in section 30.1 of the Act, any contract or class of contract concerning a procurement of goods or services or any combination of goods or services, as described in Article II of the Agreement on Government Procurement, in Article Kbis-01 of Chapter Kbis of the CCFTA, in Article 1401 of Chapter Fourteen of the CPFTA, in Article 1401 of Chapter Fourteen of the CCOFTA, in Article 16.02 of Chapter Sixteen of the CPAFTA, in Article 17.2 of Chapter Seventeen of the CHFTA, in Article 14.3 of Chapter Fourteen of the CKFTA, in Article 19.2 of Chapter Nineteen of CETA, in Article 504 of Chapter Five of the CFTA, in Article 10.2 of Chapter Ten of CUFTA or in Article 15.2 of Chapter Fifteen of the TPP, that has been or is proposed to be awarded by a government institution, is a designated contract.

[17] The trade agreement provisions referred to at subsection 3(1) of the Regulations impose monetary thresholds which must be met for a procurement to be covered under their respective chapters. [5] The thresholds in effect for each trade agreement, for the period January 1, 2020, through December 31, 2021, including any adjustment for inflation, are published by the Treasury Board of Canada Secretariat in Contracting Policy Notice 2019-4 Trade Agreements: Thresholds Update. [6]

[18] Both the complaint and the solicitation make clear that the procurement was for services, namely to conduct a summative evaluation of the implementation of the CUTIS Project. As such, the Tribunal finds that the monetary thresholds for services are applicable in determining whether the procurement is covered under the trade agreements. As DFATD is a federal department, the thresholds for federal entities (as opposed to those for Crown corporations or other government enterprises) apply to this analysis.

[19] The lowest monetary threshold under the trade agreements for services procured by a federal entity is $100,000, under the Canada-Korea Free Trade Agreement, followed by $105,700 under the Canadian Free Trade Agreement. [7]

[20] Both the complaint and the solicitation make clear that the maximum value of the procurement is $70,000. This amount is below the monetary threshold for services procured by federal entities under any of the trade agreements.

[21] The Tribunal therefore finds that the procurement process in question does not relate to a designated contract as defined at section 30.1 of the CITT Act and subsection 3(1) of the Regulations.

[22] For the above reasons, the Tribunal finds that Providence Group’s complaint is not in respect of a designated contract and therefore does not meet the condition for inquiry set out at paragraph 7(1)(b) of the Regulations. Accordingly, the Tribunal cannot accept the complaint for inquiry.

DECISION

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