File No. PR-2021-003 9359-6716 Québec Inc. o/a Prestige Pelouse et Fleurs

Decision made Thursday, April 22, 2021 Decision issued Tuesday, April 27, 2021 Reasons issued Wednesday, May 5, 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

9359-6716 Québec Inc. O/A Prestige pelouse et fleurs

AGAINST

THE PARKS CANADA AGENCY

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.

SUMMARY OF THE COMPLAINT

[2] The complaint relates to a Request for Quotation (RFQ) (Solicitation No. 5P300-20-0130-A) by the Parks Canada Agency (PCA) for lawn care and landscaping at the Fort Lennox National Historic Site.

[3] 9359-6716 Québec Inc. o/a Prestige Pelouse et Fleurs (Prestige Pelouse) alleges that PCA improperly awarded the designated contract to the winning bidder. Specifically, Prestige Pelouse claims that the winning bidder’s price is to low, which amounts to unfair competition.

[4] As a remedy, Prestige Pelouse requests that the designated contract be cancelled and the bids be re-evaluated. Prestige Pelouse also requests that it be awarded the designated contract.

BACKGROUND

[5] On February 24, 2021, PCA issued an RFQ for the above-mentioned services. The bidding period closed on April 6, 2021. Prestige Pelouse submitted a proposal in response to the RFQ.

[6] The solicitation documents provide that the responsive bid with the lowest evaluated price will be recommended for award of a contract. [3]

[7] On April 14, 2021, PCA informed Prestige Pelouse by letter that the designated contract had been awarded to Adams Tonte de parterre enr. (Adams).

[8] On April 16, 2021, Prestige Pelouse filed the present complaint with the Tribunal.

ANALYSIS

[9] 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; [4]

ii. the complainant is a potential supplier; [5]

iii. the complaint is in respect of a designated contract; [6] and

iv. the information provided discloses a reasonable indication that the procurement has not been conducted in accordance with the relevant trade agreements. [7]

[10] The Tribunal is of the view that the complaint was filed within the prescribed time limits. Prestige Pelouse would have become aware of the basis of its ground of complaint when PCA announced that the contract had been awarded to Adams, i.e. on April 14, 2021. Prestige Pelouse filed its complaint on April 16, 2021, which is within 10 working days of April 14, 2021.

[11] The Tribunal also finds that the complainant is a potential supplier and the complaint is in respect of a designated contract.

[12] However, for the reasons that follow, the Tribunal is of the view that the complaint does not raise a reasonable indication of a breach of the applicable trade agreements.

[13] Article 515 of the Canadian Free Trade Agreement (CFTA), which applies here, requires the procuring entity to award contracts in accordance with, and solely based upon, the criteria and essential requirements specified in the tender documentation. [8]

[14] Prestige Pelouse alleges that the winning bidder, Adams, engaged in unfair competition and that, as a result, PCA incorrectly evaluated the bids. Specifically, Prestige Pelouse argues that Adams’ financial bid is too low considering its own costs.

[15] In support of its allegations, Prestige Pelouse made a list of the expenses it would have to engage in order to provide the services. Prestige Pelouse also alleges that the wages of qualified workers have increased because of the labour shortage.

[16] However, in the present case, the complaint does not disclose in what way the winning bidder’s bid and the contract that, as a result, it was awarded would be in any way non-compliant with the tender requirements.

[17] As stated above, clause 4.1.3 of the solicitation documents provides that the responsive bid with the lowest evaluated price will be recommended for award of a contract [9] .

[18] The Tribunal has repeatedly held that accepting a significantly lower bid does not in and of itself indicate a failure of the procuring entity to follow the requirements of the trade agreements. [10] As such, the mere fact that the financial bid is very low and does not allow, according to the complainant, a satisfactory execution of the awarded contract does not constitute a ground of complaint that in itself can lead to a breach of the provisions of the applicable trade agreements.

[19] The basis upon which bids were to be selected in this case was the lowest price. There is no indication that this is not the criterion that was applied when the winning bidder’s bid was evaluated. There is no indication in the solicitation documents that PCA must determine whether the price of the bid is high enough for the execution of the contract. Such a consideration would amount to the application of an unannounced evaluation criterion in the solicitation. [11]

[20] Moreover, in the event that PCA would have assessed that Adams’ bid price was abnormally low, PCA had the possibility, but not the obligation, to verify this with Adams in order to make sure that the price of the bid was high enough for the contract to be completed.

[21] Once PCA determined that Adams was capable of fulfilling the terms of the contract, PCA had the obligation to award Adams the contract. Otherwise, PCA would have breached the obligations of the trade agreements that apply to this case.

[22] Finally, the question of whether the value of the financial bid will allow the winning bidder to fulfill its obligations under the designated contract is a matter of contract administration and, therefore, is not governed by the trade agreements. [12]

[23] As a result, the Tribunal finds that there is no reasonable indication that PCA breached any provision of the applicable trade agreements during bid evaluation.

DECISION

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