File No. PR-2021-002 Royal Indevco Properties Inc.

Decision made Tuesday, April 20, 2021 Decision and 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

ROYAL INDEVCO PROPERTIES 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. The complaint is premature because the complainant has not yet received the formal debriefing it has requested pursuant to the terms of the solicitation.

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 relates to a solicitation, in the form of an Invitation to Offer (ITO), issued by the Department of Public Works and Government Services (PWGSC), for the leasing of property in Nanaimo, British Columbia (Project No. 8100167).

[3] The complainant, Royal Indevco Properties Inc. (RIP), alleges that PWGSC improperly accepted proposals which, at the time of the opening of submissions, were not compliant with the essential requirements of the solicitation. RIP also alleges that PWGSC has failed to disclose to RIP information pertaining to other proposals as required under the terms of the solicitation. RIP requests that the bids be re-evaluated, that it be awarded the contract under the solicitation, and that it be compensated for the costs of preparing its bid and this complaint and/or lost profits and lost opportunity.

[4] For the reasons that follow, the Tribunal finds that the complaint is premature on the basis that the complainant has not yet received the formal debriefing it has requested pursuant to the terms of the solicitation. As such, the Tribunal has decided not to conduct an inquiry into the complaint at this time.

BACKGROUND

[5] On December 23, 2020, PWGSC issued the ITO, inviting bidders to submit an Irrevocable Offer to Lease (IOL) with regard to office space in Nanaimo, British Columbia.

[6] On December 31, 2020, PWGSC issued a Clarification to Offerors containing answers to questions from potential bidders in response to the ITO.

[7] On January 26, 2021, RIP submitted its IOL in response to the ITO.

[8] On April 5, 2021, RIP requested an update from PWGSC regarding the status of the project.

[9] On April 6, 2021, the following email correspondence was exchanged between RIP and PWGSC. PWGSC informed RIP that it was not the successful bidder. RIP responded requesting confirmation that other IOLs received by PWGSC complied, at the time of submission, with the security clearance requirements set out in the ITO. PWGSC replied stating that the ITO required bidders to demonstrate compliance prior to the end of the acceptance period set out in the ITO, i.e. April 14, 2021, and not at the time bids were submitted. RIP contested this interpretation of the solicitation documents and repeated its request. PWGSC maintained that its position was consistent with the terms of the ITO and Clarification to Offerors and declined to provide the requested information pertaining to other proposals.

[10] On April 7, 2021, the following email correspondence was exchanged between RIP and PWGSC. RIP requested that PWGSC disclose certain information contained in the IOLs submitted by other bidders pursuant to section 16 of its IOL. PWGSC again declined to provide the requested information, stating that RIP was not entitled to it under the terms of the solicitation.

[11] On April 14, 2021, RIP filed the present complaint with the Tribunal. On April 15, 2021, the Tribunal requested further information before the complaint could be considered complete.

[12] Also on April 15, 2021, PWGSC sent RIP a regret letter officially informing it that it was not the successful bidder under the solicitation. The same day, RIP replied to PWGSC requesting a formal debriefing pursuant to section 19 of the ITO.

[13] On April 16, 2021, RIP submitted the additional information requested by the Tribunal.

[14] On April 20, 2021, the Tribunal decided not to conduct an inquiry into the complaint.

ANALYSIS

[15] 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; [3]

(ii) the complainant is a potential supplier; [4]

(iii) the complaint is in respect of a designated contract; [5] and

(iv) the information provided discloses a reasonable indication that the procurement has not been conducted in accordance with the relevant trade agreements. [6]

[16] For the following reasons, the Tribunal finds that the complaint was not filed within the time limits prescribed by section 6 of the Regulations.

Timeliness

[17] Pursuant to section 6 of the Regulations, a potential supplier must either raise an objection with the procuring government institution or file a complaint with the Tribunal no later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the supplier. [7] Further, a potential supplier who has made a timely objection to the procuring government institution and is denied relief may file a complaint with the Tribunal within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief. [8]

[18] The exchange of email correspondence between RIP and PWGSC on April 5 through April 7, 2021, might under other circumstances be considered to constitute objections by RIP and corresponding denials of relief on the part of PWGSC. However, RIP requested a formal debriefing on April 15, 2021, only one day after the end of the acceptance period set out in the ITO, and the very same day it received the formal regret letter from PWGSC. Requesting such a debriefing was RIP’s right pursuant to section 19 of the ITO. In fact, section 19 provides that a detailed debriefing can only be provided after the award of a contract. The debriefing does not appear to have taken place yet.

[19] As such, in the Tribunal’s view, it would be unfair to consider that RIP has sought and been denied relief, which denial would have triggered the start of the 10-working-day time limit for submitting its complaint, prior to RIP receiving the detailed debriefing to which it is entitled under the terms of the solicitation and which the Tribunal considers likely to inform the specific grounds of complaint raised by RIP. The Tribunal is careful to note that circumstances will not always require a complainant to wait until after a contract is awarded or a formal debriefing is received to make an objection and/or submit a complaint, and that bidders are expected to remain vigilant and to react as soon as they become aware or reasonably should have become aware of a flaw in the process. [9]

[20] In this case, RIP’s complaint pertains to the interpretation of submission and disclosure requirements set out in the ITO. Because RIP can fully canvas these issues at the debriefing, and because it has already requested that debriefing, the Tribunal considers it appropriate to allow that debriefing to first take place, at which time RIP may make an objection to PWGSC or submit a new complaint to the Tribunal with the benefit of PWGSC’s detailed explanation.

[21] For the foregoing reasons, the Tribunal considers RIP’s complaint to be premature and will therefore not conduct an inquiry at this time.

Timeframe for any future complaint

[22] Once the debriefing takes place, RIP may file another complaint with the Tribunal within 10 working days of the debriefing or, if RIP objects to PWGSC’s explanation given in the debriefing, within 10 working days of PWGSC denying the relief sought by RIP in such an objection. If RIP decides to file a new complaint, it may request that documents already filed with this complaint be joined to the new complaint.

DECISION

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