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

DYNAMIC FACILITY SERVICES 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.

[2] The Tribunal received three complaints from Dynamic Facility Services Ltd. (Dynamic) (Solicitation Nos. W684Q-200129/B, W684Q-200133/A and W684Q-200136/A) on May 27, 2021, all relating to the provision of janitorial services for different portions of Canadian Forces Base Esquimalt, in British Columbia. The procurement was managed by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence. The Tribunal acknowledged receipt of Dynamic’s complaints as filed on May 31, 2021.

[3] The three complaints concern the same issue with Dynamic alleging that PWGSC improperly deducted points in the evaluation of its bids. On May 27, 2021, Dynamic also communicated its objection to PWGSC, requesting that PWGSC investigate Dynamic’s concerns and delay the award of the contracts in the solicitations until a full review and re-evaluation of its bids could take place.

[4] Pursuant to rule 6.1 of the Canadian International Trade Tribunal Rules [3] and in recognition of the common grounds for complaint in Dynamic’s three complaints, the Tribunal will consider the complaints together.

[5] Subsection 6(2) of the Regulations provides that a potential supplier may file a complaint with the Tribunal, provided that it “do so not later than 10 working days after the day on which the basis of the complaint became known.” The potential supplier may also file a complaint following an objection made to the relevant government institution, when relief is denied by that government institution. In this case, the complaint with the Tribunal must be filed “within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier.”

[6] Dynamic made an objection to PWGSC, pursuant to subsection 6(2) of the Regulations, concerning the Request for Proposals in issue on May 27, 2021, within 10 working days of being notified of the results of procurement process on May 13, 2021. When Dynamic filed its complaint, it had not yet received a response from PWGSC, much less a denial of relief.

[7] In the Tribunal’s view, given that Dynamic filed its complaint before having received a denial of relief from PWGSC, the complaint is premature. The Tribunal takes note of Dynamic’s vigilance to the short timelines applicable to procurement complaints; however, it cannot consider that the complaint, as drafted, meets the requirements of the Regulations at this time. For those reasons, the Tribunal will not conduct an inquiry into the complaint.

[8] The Tribunal’s decision does not preclude Dynamic from filing a new complaint within 10 working days of receiving a denial of relief from PWGSC. Alternatively, if PWGSC fails to respond to Dynamics’s concerns within 20 days of the issuance of these reasons, Dynamic may file a complaint with the Tribunal, within 10 working days following the expiration of this time limit, and the Tribunal will then decide whether or not to initiate an inquiry. Upon filing a new complaint, Dynamic may request that the documentation already filed with the Tribunal be joined to the new complaint.

DECISION

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