File PR-2021-043 SupremeX Inc. v. Department of Public Works and Government Services

Determination and reasons issued Wednesday, January 19, 2022

 

TABLE OF CONTENTS

DETERMINATION i

STATEMENT OF REASONS 1

SUMMARY OF THE COMPLAINT 1

PROCUREMENT PROCESS 1

COMPLAINT PROCEEDINGS 2

POSITION OF THE PARTIES 3

SupremeX 3

PWGSC 4

Canada Inc. 4

ANALYSIS 4

Was the evaluation of the corporate experience requirement reasonable? 5

Was the evaluation of the Canadian content certification requirement by PWGSC reasonable? 7

Canada Inc.’s allegations with respect to “collusion, bid rigging and abuse of dominance” 9

COSTS 10

DECISION 10

APPENDIX 1: EXCERPTS OF THE CFTA 12

 

IN THE MATTER OF a complaint filed by SupremeX Inc. pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.);

AND FURTHER TO a decision to conduct an inquiry into the complaint pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN
SUPREMEX INC.	Complainant
AND
THE Department of Public Works and Government Services	Government Institution

DETERMINATION

Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act (CITT Act), the Canadian International Trade Tribunal determines that the complaint is not valid.

Pursuant to section 30.16(1) of the CITT Act, the Tribunal awards the Department of Public Works and Government Services its reasonable costs incurred in responding to the complaint, which costs are to be paid by SupremeX Inc. In accordance with the Procurement Costs Guideline (Guideline), the Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,150. Any party that disagrees with the preliminary level of complexity or the preliminary indication of the amount of the cost award may make submissions to the Tribunal, in accordance with Article 4.2 of the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the cost award.

 

 

Tribunal Panel:	Georges Bujold, Presiding Member
Tribunal Secretariat Staff:	Emilie Audy, Counsel Sarah Perlman, Counsel Kim Gagnon-Lalonde, Registrar Officer
Complainant:	SupremeX Inc.
Counsel for the Complainant:	Jean-François Forget Simon Ledsham
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Jean-Philippe Blais Michael Horn Caroline Zechel
Intervener:	12363623 Canada Inc.
Representative of the Intervener:	Miteshkumar Patel

Please address all communications to:

The Deputy Registrar
Telephone: 613-993-3595
Email: citt-tcce@tribunal.gc.ca

 

STATEMENT OF REASONS

SUMMARY OF THE COMPLAINT

[1] SupremeX Inc. (SupremeX) filed this complaint with the Canadian International Trade Tribunal, pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, ^[1] concerning a Request for Proposal (RFP) (solicitation EN893-220033/A) issued by the Department of Public Works and Government Services (PWGSC) for the provision of envelopes for the Receiver General for Canada cheques.

[2] SupremeX alleged that the successful bidder did not meet the corporate experience requirement or the Canadian content certification requirement and was therefore awarded a contract in violation of the Canadian Free Trade Agreement (CFTA) ^[2] and the terms of the RFP.

[3] The Tribunal accepted the complaint for inquiry in accordance with subsection 30.13(1) of the CITT Act and subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations. [3]

[4] Following its inquiry into the complaint, and for the reasons that follow, the Tribunal finds that the complaint is not valid.

PROCUREMENT PROCESS

[5] On May 26, 2021, PWGSC issued a solicitation for the provision of approximately 30 million envelopes annually for a period of 3 years, with the irrevocable option to extend the contract by 2 additional 1‑year periods, for the Receiver General for Canada cheques. ^[4] The initial closing date was June 15, 2021.

[6] PWGSC published three amendments to the RFP on June 2, 3 and 18, 2021. ^[5] Among other things, amendments 001 and 003 answered questions regarding mandatory technical requirement “M.1 Corporate Experience” and mandatory requirement “5.2.3.1 Canadian Content Certification”, respectively, while amendment 002 extended the closing date to July 2, 2021.

[7] On July 1, 2021, SupremeX submitted its bid. ^[6] PWGSC received five bids in total, including the one from SupremeX, and determined that all bids were responsive to the RFP. PWGSC conducted the technical and financial evaluations of the bids between July 6 and August 4, 2021. ^[7]

[8] On August 5, 2021, PWGSC advised SupremeX that the contract was awarded to 12363623 Canada Inc. (Canada Inc.), with a total price of $2,100,000, excluding applicable taxes. ^[8]

[9] On August 16, 2021, SupremeX objected by email to PWGSC, requesting that Canada Inc. be excluded from the award of the contract and that it be awarded to the next lowest bidder. ^[9]

[10] On August 27, 2021, PWGSC replied to SupremeX’s objection, stating that, after investigating its claim, PWGSC was satisfied that Canada Inc. met the terms of the RFP and subsequent contract. ^[10]

COMPLAINT PROCEEDINGS

[11] On September 13, 2021, SupremeX filed a complaint with the Tribunal.

[12] On September 20, 2021, the Tribunal informed the parties that it had accepted the complaint for inquiry on September 17, 2021. ^[11]

[13] On September 27, 2021, the Tribunal requested SupremeX’s comments regarding a possible joinder of its complaint and the complaint in file PR-2021-042 given that both complaints pertained to the same procurement process and raised similar grounds. ^[12]

[14] On September 29, 2021, SupremeX advised the Tribunal that it would not request a joinder of the complaints. ^[13] On October 1, 2021, the Tribunal informed the parties that it decided to maintain the two proceedings separately in view of each complainant’s preference. [14]

[15] On October 4, 2021, Canada Inc. submitted a request to participate in the proceedings. ^[15] The next day, the Tribunal granted Canada Inc. intervener status. ^[16]

[16] On October 13, 2021, PWGSC requested an extension to the deadline to file its Government Institution Report (GIR), from October 18 to October 28, 2021. ^[17] SupremeX opposed the request on October 14, 2021. ^[18] Having considered the request and SupremeX’s opposition, the Tribunal granted the extension on October 15, 2021. ^[19] As a result, and considering Canada Inc.’s intervention, the Tribunal extended the deadline for the issuance of its determination in respect of the complaint to 135 days after the filing of the complaint, in accordance with paragraph 12(c) of the Regulations

[17] On October 14, 2021, Canada Inc. filed with the Tribunal public comments on the complaint (Response A) without serving SupremeX or PWGSC. ^[20]

[18] On October 15, 2021, Canada Inc. filed with the Tribunal updated public comments on the complaint (Response B) and served them on the other parties. ^[21] The same day, Canada Inc. requested that the Tribunal withdraw Response A. ^[22]

[19] On October 18, 2021, the Tribunal denied Canada Inc.’s request to withdraw Response A, advising that both Response A and Response B would be placed on the record and disclosed to all parties. ^[23]

[20] On October 28, 2021, PWGSC filed its GIR with the Tribunal, in which it also addressed Canada Inc.’s allegations in Response A and Response B.

[21] On November 4, 2021, Canada Inc. advised the Tribunal that it would not submit any comments on the GIR.

[22] On November 12, 2021, SupremeX filed its comments on the GIR and on Canada Inc.’s allegations in Response A and Response B.

POSITION OF THE PARTIES

SupremeX

[23] SupremeX is challenging the award of the contract to Canada Inc. based on the allegation that Canada Inc. did not have the capacity to perform the work described in the Statement of Work, as its bid did not meet the Canadian content certification requirement or the corporate experience requirement. More specifically, SupremeX alleges the following: [24]

(a) Canada Inc. does not have the capacity, the required equipment, or the qualified human resources to operate the equipment to produce the envelopes in Canada, and it lacks a manufacturing location in Canada suitable for a contract of this size and nature;

(b) Canada Inc. has sourced envelopes from SupremeX in the past year due to its inability to produce the products required on other contracts;

(c) On August 11, 2021, four working days before the award of the subject contract, Canada Inc. contacted SupremeX to request that it manufacture the majority of the envelopes for Canada Inc. SupremeX declined this request and intends to decline future similar requests from Canada Inc.; and

(d) SupremeX was made aware through representatives of Canada Inc. that it is affiliated with an envelope-making company based in India through family members and that Canada Inc. actually has no real capability in Canada to produce most of the envelopes pursuant to the contract, as it only has basic and very limited capability to produce a small subset of envelopes.

[24] As such, SupremeX requests that Canada Inc.’s bid be declared non-responsive to the requirements of the RFP, that the contract be rescinded, and that it be awarded to the next lowest bidder.

PWGSC

[25] PWGSC submits that Canada Inc. has demonstrated that it has the capacity to perform the work and meets the Canadian content certification requirement, as described in the RFP, and fully meets the corporate experience requirement. PWGSC further submits that SupremeX misunderstood the Canadian content certification requirement as well as the corporate experience requirement.

[26] According to PWGSC, Canada Inc. confirmed that it would provide Canadian services and supplied information regarding two contracts in response to the corporate experience requirement. PWGSC accepted the information provided as meeting the Canadian content certification and corporate experience requirements, as it is standard practice for PWGSC to rely on the information supplied by bidders unless something on the face of the bid clearly calls into question this information. ^[25]

[27] Following SupremeX’s objection, PWGSC issued a stop work order to Canada Inc. and sought additional information from it. ^[26] Canada Inc. provided documentation supporting its compliance with the Canadian content certification and corporate experience requirements. Satisfied by this information, PWGSC proceeded to lift the stop work order.

Canada Inc.

[28] Canada Inc. submits that it can fully meet the requirements of Canadian content that are applicable to the procurement at issue.

[29] Canada Inc. also alleges that it was warned by SupremeX to stay away from the envelope industry. ^[27] Canada Inc. further alleges that SupremeX and Enveloppe Concept Inc. (ECI) (the complainant in file PR-2021-042) practised bid rigging, as they declined to supply the goods, forced suppliers not to provide raw materials to a new manufacturer, and created an atmosphere of anti‑competition. ^[28] Furthermore, Canada Inc. raises concerns over unethical practices by Rolland Inc., a paper supplier, and notes that it has reached out to the Competition Bureau in that respect.

ANALYSIS

[30] Subsection 30.14(1) of the CITT Act requires that, in conducting an inquiry, the Tribunal limits its considerations to the subject matter of the complaint. At the conclusion of the inquiry, the Tribunal must determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been observed.

[31] Section 11 of the Regulations specifies that the Tribunal must determine whether the procurement was conducted in accordance with the requirements set out in the applicable trade agreements, which, in this instance, includes the CFTA.

[32] The relevant provisions of the CFTA raised by SupremeX are article 507(3) and articles 515(1), (4), (5) and (6). ^[29] The text of these provisions can be found in Appendix 1.

[33] In essence, SupremeX claims that Canada Inc.’s bid was not properly evaluated against the Canadian content certification and corporate experience requirements set out in the RFP and that its bid should therefore have been declared non-responsive. For the following reasons, the Tribunal finds that SupremeX’s allegations are without merit.

[34] In summary, the criteria for evaluating proposals in this procurement process were clearly and explicitly stated, and the evaluation was conducted in a reasonable manner. In fact, the evidence on the record demonstrates that the decision to award the contract to Canada Inc. was the result of an evaluation that strictly adhered to the evaluation methodology described in the RFP and that Canada Inc. met the mandatory technical criteria and provided the requisite certifications. Therefore, PWGSC did not breach any of its obligations pursuant to the CFTA in evaluating Canada Inc.’s bid, and there is no basis for the Tribunal to interfere with the decision to award the contract to this bidder.

Was the evaluation of the corporate experience requirement reasonable?

[35] The mandatory M.1 Corporate Experience criterion set out in section 4.1.1.1 of the RFP prescribes the following:

The Bidder must demonstrate that it has been contractually bound to an external client (outside of the Bidder’s own company) or to external clients* for two (2) contracts to manufacture and print to final format and delivery to the destination address or addresses. Each of these two (2) contracts must have been for a minimum of 500,000 double-window envelopes for each contract.

The Contracts must have been started or completed after April 01, 2014. [30]

[36] SupremeX alleges that PWGSC did not evaluate the corporate experience properly, because it is highly questionable that Canada Inc. actually and materially complies with mandatory technical criterion M.1 Corporate Experience, as Canada Inc. was only incorporated on September 23, 2020. ^[31] SupremeX further alleges that, since Canada Inc.’s incorporation, it has resorted to sourcing envelopes from SupremeX because of its inability to produce envelopes itself. [32]

[37] PWGSC submits that, in order to demonstrate their corporate experience, bidders were required to provide examples of previous contracts that were “started or completed after April 01, 2014” [emphasis in original]. [33] PWGSC notes that, in its technical bid, Canada Inc. provided information on two contracts for which it is contractually bound to manufacture, print and deliver envelopes, and that both contracts met the conditions set forth in the requirement. ^[34] PWGSC further submits that it is standard practice to rely on the information supplied by bidders unless something on the face of the bid clearly calls into question this information. [35] In fact, according to the 2003 (2020‑05‑28) Standard Instructions – Goods or Services – Competitive Requirements of the Standard Acquisition Clauses and Conditions Manual (SACC Manual), [36] which were incorporated by reference into the RFP in section 2.1, [37] PWGSC has no obligation to proceed with any verification. Nonetheless, in light of the allegations made by SupremeX, PWGSC sought additional information from Canada Inc. that further supported its compliance with the corporate experience requirement. [38]

[38] The Tribunal finds that PWGSC’s position on this issue is well founded in law and in fact. As Canada Inc. provided information regarding two contracts, it complied with criterion M.1 Corporate Experience, and PWGSC had no obligation to verify these contracts. As mentioned by PWGSC, the 2003 (2020-05-28) Standard Instructions – Goods or Services – Competitive Requirements of the SACC Manual do not require PWGSC to proceed with any verification. More specifically, paragraph 16 states that “. . . Canada may, but will have no obligation to, . . . a. seek clarification or verification from bidders regarding any or all information provided by them with respect to the bid solicitation; b. contact any or all references supplied by bidders to verify and validate any information submitted by them . . .”. [39]

[39] In Access Corporate Technologies, the Tribunal mentioned that the contracting authority has the right, but not the obligation, to ask for additional information to verify the bidders’ compliance with the certification before or after the award of a contract. [40] In the Tribunal’s view, there is no indication that PWGSC had any reason to question Canada Inc.’s contracts submitted during the bid evaluation phase, and it was entitled to rely on Canada Inc.’s information with respect to its corporate experience.

[40] Regardless of SupremeX’s doubts regarding whether Canada Inc. actually possessed the required corporate experience, what matters is that the information provided in Canada Inc.’s bid fully satisfied the requirements of criterion M.1. Moreover, the concerns raised by SupremeX are extraneous to Canada Inc.’s bid. Even assuming that the evaluators had knowledge of these circumstances at the time of the evaluation, the Tribunal is not convinced that they would have been sufficient to cast doubts on Canada Inc.’s compliance with criterion M.1. Indeed, the Tribunal finds that it was reasonable to interpret this criterion as including experience as a general contractor and that it could be met by Canada Inc. even if it subcontracted the work for the two prior contracts it provided to demonstrate its corporate experience.

Was the evaluation of the Canadian content certification requirement by PWGSC reasonable?

[41] SupremeX alleges that PWGSC did not properly evaluate the Canadian content certification requirement set out in section 5.2.3.1 of the RFP, since Canada Inc. cannot comply with it. ^[41] According to SupremeX, Canada Inc. does not possess the necessary resources to manufacture the envelopes itself and does not have the capabilities (including, inter alia, equipment, human resources and facilities) to produce the required volume of envelopes in Canada. ^[42]

[42] SupremeX further submits that, even if Canada Inc. could produce the envelopes itself, it would face great difficulties in obtaining the required “#24” natural kraft recycled paper (kraft paper). According to SupremeX, the only mill in North America that produces this type of paper, the Rolland Inc. mill in Saint-Jérôme, Québec, will not supply the required paper to Canada Inc. ^[43] Therefore, according to SupremeX, it is doubtful that Canada Inc. will be able to source the required paper, whether in Canada or elsewhere, adding to the difficulty of producing the envelopes in Canada.

[43] Finally, SupremeX submits that members of the family of the sole director of Canada Inc. [44] operate an envelope production business in India and that it is likely that Canada Inc. will turn to this Indian producer for support. ^[45]

[44] PWGSC submits that Canada Inc. certified that it will comply with PWGSC’s Canadian content certification policy set out at section 5.2.3.1 of the RFP, as amended, in its technical bid. ^[46] PWGSC relied on that certification, as it did for all other bids submitted as part of this RFP, and submits that nothing in Canada Inc.’s bid called into question the veracity of its commitment in this regard. However, in light of the allegations made by SupremeX, PWGSC notes that it sought and received additional information from Canada Inc., which went beyond what was required to be submitted in response to the RFP.

[45] Canada Inc. submits that it can fully meet the Canadian content certification requirement and notes that amendment 003 clarified that kraft paper produced outside of Canada can be used, assuming that it is identical to the paper requested in the RFP. ^[47]

[46] The Tribunal is of the view that PWGSC was entitled to rely on Canada Inc.’s certification as it did for all other bids submitted in response to this RFP. As mentioned previously, PWGSC had no obligation to seek verification from Canada Inc., since nothing in the bid called into question its veracity in this regard. Moreover, in Chaussures Régence, the Tribunal concluded that, with respect to the Canadian content certification, PWGSC was not obligated to verify the validity of the certification provided by each bidder and could accept each one at face value:

In the Tribunal’s view, PWGSC, working within the terms of the RFP, was justified in applying the Canadian content provision and in setting aside those proposals that did not have the certification of Canadian content. The Tribunal is also of the view that PWGSC was not obligated to verify the validity of the certification provided by each bidder and could accept each one at face value. Accordingly, the Tribunal is satisfied that there is no evidence to indicate that, once the Canadian content provision was brought into play, the evaluation was conducted in any manner that was in violation of the terms of the RFP. ^[48]

[47] As such, SupremeX’s assessment of Canada Inc.’s capabilities is irrelevant to PWGSC’s evaluation, since Canada Inc. fulfilled the certification requirement of the RFP.

[48] In Tyco Electronics, the Tribunal considered whether the Canadian content certification requirement fell under contract administration. The Tribunal then indicated that it could not “initiate such an inquiry, as to do so would amount to nothing less than, at best, embarking into the realm of contract administration (which is outside of its jurisdiction), or worse, a ‘fishing expedition’.” ^[49] In the current case, it is only after the award of the contract—when the evaluation of the bids was completed and, thus, when the procurement process was completed—that PWGSC was alerted to the possibility that this certification was inaccurate. It then proceeded to complete a verification and promptly issued a stop work order, but these steps were conducted as part of the administration of the contract. Indeed, at that point, Canada Inc. was the contractor and PWGSC was verifying whether it was complying with applicable contractual terms. Therefore, this is a matter that is beyond the Tribunal’s jurisdiction. ^[50] In other words, it is not within the Tribunal’s jurisdiction to assess whether Canada Inc.’s certification was valid.

[49] In any event, even if this issue were not a question of contract administration, SupremeX’s allegation that Canada Inc. is incapable to produce the envelopes in Canada is not borne out by the evidence. In fact, it appears that Canada Inc. not only can produce the “Small Format” envelopes but also has access to the required kraft paper. ^[51] It therefore appears that Canada Inc. will be able to provide Canadian services, as defined in the RFP, which is consistent with the certification that it provided.

[50] Moreover, as noted by PWGSC, it appears that subcontracting is not prohibited for this contract as per SACC Manual clause 2030, paragraph 6 (which is part of the resulting contract clauses as per article 6.2.1 of the RFP). As such, it seems that it would be open to Canada Inc. to subcontract the work, at least in part.

[51] For these reasons, PWGSC’s acceptance of Canada Inc.’s certification and, at any rate, its assessment of Canada Inc.’s capabilities against the Canadian content certification requirement were reasonable, and this ground of complaint is not valid.

Canada Inc.’s allegations with respect to “collusion, bid rigging and abuse of dominance”

[52] In Response B, filed on October 15, 2021, Canada Inc. alleges that SupremeX and ECI were practising “collusion, bid rigging and abuse of dominance”. Canada Inc. states that it reached out to the Competition Bureau under the refusal to deal clause and raised concerns over unethical practices by Rolland Inc.

[53] Canada Inc. notes that SupremeX and ECI appear to have been in communication, as evidenced in their complaints, which it submits amounts to bid rigging. Canada Inc. also notes that both companies have alleged that they are the only companies with the capacity to meet the requirements of the RFP. [52] Canada Inc. submits that this represents a duopoly and invisible monopoly, which is in direct conflict with the Canadian content certification requirement. [53] Canada Inc. further submits that suppliers were forced to not provide the required raw materials to new manufacturers. [54] Finally, Canada Inc. requested that SupremeX and ECI’s owners provide testimony in this case, which it believes would confirm bid rigging and the creation of an atmosphere of anti-competition.

[54] In its reply, SupremeX denies the allegations of collusion, bid rigging and abuse of dominance. SupremeX notes that Canada Inc. did not file any evidence in support of its allegations and that these allegations were never brought forward by Canada Inc. during the bidding process for the RFP. [55] SupremeX submits that these allegations do not form part of the subject matter of the Tribunal’s inquiry and are therefore irrelevant. SupremeX also submits that the Tribunal does not have jurisdiction on these matters and requests that it disregard them entirely.

[55] In its GIR, PWGSC submitted that it was not aware of the allegations of collusion made against SupremeX or of any threatening behaviour toward Canada Inc. ^[56] According to PWGSC, Canada Inc. did not raise any of these issues at bid submission or during the evaluation of the bids.

[56] The Tribunal finds that Canada Inc.’s allegations relate entirely to the purported behaviour of private actors and have nothing to do with PWGSC or its conduct of the procurement process. They are therefore beyond the scope of the Tribunal’s jurisdiction, which is to determine whether PWGSC has conducted the procurement process in accordance with Canada’s obligations under the applicable trade agreements. [57]

[57] In any event, Canada Inc.’s allegations are not supported by cogent evidence and must therefore be dismissed for this reason alone. In fact, the evidence before the Tribunal belies Canada Inc.’s claims of reprehensible behaviour by SupremeX or other industry participants in the course of the procurement process at issue. For example, although Canada Inc. submits that there are two companies able to restrict competition, namely SupremeX and ECI, it seems this is incorrect since, as noted above, there were five responsive bidders in this RFP process. Moreover, while Canada Inc. accused Rolland Inc. of unethical practices in refusing to provide the required kraft paper, Canada Inc. nevertheless appears to be able to get the materials required, as noted above. Finally, as Canada Inc. is the winning bidder, it is unclear what remedy the Tribunal could provide, if any.

[58] It also warrants noting that allegations of bid rigging, abuse of dominance and collusion are serious accusations that can carry hefty penalties and that go well beyond procedural irregularities or failures on the part of federal entities in conducting a procurement process. [58] In the absence of any strong evidence, the Tribunal would caution parties to refrain from making such grave accusations in proceedings before it.

COSTS

[59] Both SupremeX and PWGSC have requested their costs relating to the complaint. Canada Inc. has not requested its costs.

[60] Pursuant to section 30.16 of the CITT Act, the Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint, which costs are to be paid by SupremeX.

[61] In determining the amount of the cost award for this complaint, the Tribunal considered its Procurement Costs Guideline (Guideline), which contemplates the classification of the level of complexity of cases on the basis of three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.

[62] In this case, the solicitation was not particularly complex, the issues raised in the complaint were limited and straightforward, and the complaint proceedings were not overly complicated. Accordingly, the Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, which has an associated flat-rate amount of $1,150.

DECISION

[63] Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.

[64] Pursuant to section 30.16 of the CITT Act, the Tribunal awards PWGSC its costs in the amount of $1,150 for responding to the complaint, which costs are to be paid by SupremeX. Any party that disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award may make submissions to the Tribunal, in accordance with Article 4.2 of the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the cost award.

 

 

APPENDIX 1: EXCERPTS OF THE CFTA

Article 500: Purpose

The purpose of this Chapter is to establish a transparent and efficient framework to ensure fair and open access to government procurement opportunities for all Canadian suppliers.

. . .

Article 507: Conditions for Participation

. . .

3. In assessing whether a supplier satisfies the conditions for participation, a procuring entity shall:

 

(a) evaluate the financial capacity and the commercial and technical abilities of a supplier on the basis of that supplier’s business activities both inside and outside the territory of the Party of the procuring entity; and

(b) base its evaluation on the conditions that the procuring entity has specified in advance in its tender notices or tender documentation.

. . .

Article 515: Treatment of Tenders and Award of Contracts

Treatment of Tenders

1. A procuring entity shall receive, open, and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process, and the confidentiality of tenders.

. . .

Evaluation and Award of Contract

4. To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the tender notices and tender documentation and be from a supplier that satisfies the conditions for participation.

5. Unless a procuring entity determines that it is not in the public interest to award a contract, the procuring entity shall award the contract to the supplier that the procuring entity has determined to be capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the tender notices and tender documentation, has submitted:

(a) the most advantageous tender; or

(b) if price is the sole criterion, the lowest price.

6. If a procuring entity receives a tender from a supplier with a price that is abnormally lower than the prices in other submitted tenders, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.