File PR-2021-054 Nova Scotia Division of the Canadian Corps of Commissionaires

Decision made Monday, November 29, 2021 Decision and reasons issued Monday, December 6, 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

NOVA SCOTIA DIVISION OF THE CANADIAN CORPS OF COMMISSIONAIRES

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 because it is premature, as the complainant has not yet received a response to its objection from the government institution.

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 issued by the Department of Public Works and Government Services (PWGSC) for the provision of commercial security guard services across Canada (solicitation EN578-210714).

[3] In its complaint to the Tribunal, the complainant, Nova Scotia Division of the Canadian Corps of Commissionaires (Commissionaires) requests the following: [3]

1. “Clarification . . . pertaining to procurement action, proposal submission and clarification submission, . . . award decision, . . . consistency and application of PWGSC departmental policies and internal procedures related to procurement . . .”;
2. “Clear communication of the evaluation criteria and selection methodology” along with the scores and “discretionary judgment, if any” used by PWGSC; and
3. A debrief, in writing, of the questions it submitted to PWGSC on November 22, 2021.

BACKGROUND

[4] On August 11, 2021, PWGSC published the solicitation.

[5] Commissionaires submitted a bid on or before the closing date.

[6] On September 28, 2021, PWGSC asked Commissionaires to clarify where in its bid it was “demonstrated that the Executive Level Representative, Account Representative and Regional Supervisor each have a minimum of 5 years of experience within the last 7 years, preceding the bid solicitation closing date providing similar services as per section 3.2.5 of the Statement of Work”, as required by Mandatory Technical Criteria MT4. ^[4] Commissionaires was asked to provide a response by September 30, 2021.

[7] On September 29, 2021, Commissionaires asked PWGSC if providing the CVs of the aforementioned individuals was sufficient to demonstrate their experience. ^[5]

[8] On that same date, PWGSC answered that no additional documents could be submitted, as this would constitute bid repair, and asked that Commissionaires indicate “where in the bid the years of experience were clearly demonstrated”. ^[6]

[9] On September 30, 2021, Commissionaires provided the clarification. [7]

[10] On November 12, 2021, PWGSC sent a regret letter to Commissionaires, advising that its bid did not comply with all the mandatory requirements of the solicitation, namely that the information required by Mandatory Technical Criteria MT4 was not provided. ^[8]

[11] On November 22, 2021, Commissionaires sent PWGSC an email asking for additional information. ^[9]

[12] On November 24, 2021, Commissionaires filed a complaint with the Tribunal.

ANALYSIS

[13] Pursuant to sections 6 and 7 of the Regulations, the Tribunal may conduct an inquiry into a complaint if all of the following conditions are met:

1. the complaint has been filed within the time limits prescribed by section 6 of the Regulations; ^[10]
2. the complainant is a potential supplier; ^[11]
3. the complaint is in respect of a designated contract; ^[12] and
4. the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements. ^[13]

[14] For the following reasons, the Tribunal finds that the complaint is premature.

The complaint is premature

[15] 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. ^[14] However, 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. ^[15]

[16] The Tribunal finds that PWGSC has not yet denied relief to Commissionaires within the meaning of subsection 6(2) of the Regulations. There is no indication on file that PWGSC has provided a response to Commissionaires’ November 22 email requesting additional information. Accordingly, Commissionaires does not yet know whether PWGSC will provide the requested information. PWGSC’s eventual response may be satisfactory to Commissionaires and may allow for the resolution of Commissionaires’ concerns. If PWGSC’s answer is unsatisfactory to Commissionaires, this will nonetheless allow it to formulate grounds of complaint and request a remedy to the Tribunal with greater clarity. For the time being, however, the complaint is premature.

Timeline for any future complaint

[17] The Tribunal’s decision does not preclude Commissionaires from filing a new complaint within 10 working days of receiving a denial of relief from PWGSC, if it still feels aggrieved.

[18] Alternatively, if PWGSC fails to respond to Commissionaires’ correspondence within 30 days of the issuance of the Tribunal’s decision, Commissionaires may consider the lack of response as a denial of relief.

[19] Commissionaires would therefore have 10 working days from the 30th day following the date of issuance of the Tribunal’s decision to file a new complaint with the Tribunal, should PWGSC fail to answer.

[20] In either case, if Commissionaires decides to file a new complaint, it may request that documents already filed with this complaint be joined to the new complaint.

DECISION

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