| File PR-2022-022
SoftSim Technologies Inc.
|
| Decision made |
IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act.
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.
| Randolph W. Heggart
|
| Randolph W. Heggart |
STATEMENT OF REASONS
[1] Subsection 30.11(1) of the Canadian International Trade Tribunal Act
[1]
(CITT Act) provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations
[2]
(Regulations), 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] This complaint concerns two solicitations issued by the Department of Public Works and Government Services (PWGSC). SoftSim Technologies Inc. (SoftSim) bid on a solicitation, which was cancelled without its knowledge. The solicitation was then re-tendered, also without SoftSim’s knowledge. SoftSim alleges that PWGSC ought to have informed SoftSim that the solicitation had been cancelled and re-tendered and that, by failing to do so, PWGSC deprived SoftSim of the opportunity to submit a bid on the new, re-tendered solicitation. As a remedy, SoftSim asks for a new procurement process to be issued or for compensation for lost opportunity and lost profits.
BACKGROUND
[3] On July 14, 2020, PWGSC issued solicitation 24062-180627/D (the Initial Solicitation) for request processing software solutions. The Initial Solicitation sought to award two contracts—one under Tier I and a second under Tier II. SoftSim submitted a bid for both tiers. The solicitation closed on October 14, 2020.
[4] On July 30, 2021, PWGSC informed SoftSim that it had not been awarded a contract under Tier II. PWGSC also informed SoftSim that it hoped to award a contract under Tier I by September of 2021.
[5] Time passed without further communication between SoftSim and PWGSC, except for a short email exchange on September 14, 2021, arising from SoftSim following up on its bid.
[3]
[6] On March 11, 2022, SoftSim learned that the requirement published under the Initial Solicitation had been re-tendered under solicitation EN578-210002/A (the Second Solicitation).
[4]
On that day, SoftSim contacted PWGSC to register its objection, arguing that it should have been notified about the issuance of the Second Solicitation. SoftSim also submitted a bid in response, despite the solicitation having closed on February 11, 2022.
[7] On March 14, 2022, SoftSim and PWGSC corresponded further, through counsel, regarding SoftSim’s objection of March 11, 2022.
[5]
[8] On March 30, 2022, SoftSim contacted PWGSC to inquire again whether results were available for Tier I. For reasons of confidentiality, the Tribunal notes simply that nothing in PWGSC’s response gave any indication that PWGSC would reconsider SoftSim’s objection.
[6]
[9] On June 23, 2022, SoftSim filed the present complaint.
[7]
ANALYSIS
[10] Pursuant to subsections 6(1) and (2) 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. 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.
[11] Based on the information filed in this complaint, the Tribunal finds that SoftSim first became aware of the Second Solicitation on March 11, 2022, and raised its objection to PWGSC that same day, including submitting a bid in response. Furthermore, the Tribunal finds that the correspondence between SoftSim and PWGSC on March 14, 2022, clearly show that SoftSim’s concerns would not be considered or addressed by PWGSC.
[8]
If SoftSim had any second thoughts about this exchange, it was incumbent on SoftSim to file a complaint with the Tribunal within 10 working days of March 14, 2022. SoftSim did not file the present complaint until June 23, 2022, which is beyond the time frame of 10 working days and, consequently, outside the time limits prescribed in section 6 of the Regulations.
[12] Accordingly, the Tribunal finds that this complaint is late and cannot be further considered by the Tribunal.
[9]
DECISION
[13] Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.
| Randolph W. Heggart
|
| Randolph W. Heggart |
[1]
R.S.C., 1985, c. 47 (4th Supp.).
[2]
SOR/93-602.
[3]
Exhibit PR-2022-022-01 at 11; Exhibit PR-2022-022-01.A (protected) at 359–360.
[4]
Exhibit PR-2022-022-01 at 11; Exhibit PR-2022-022-01.A (protected) at 370.
[5]
Exhibit PR-2022-022-01.C at 1; Exhibit PR-2022-022-01.A (protected) at 390–391. In their correspondence, the parties used the term “complaint”
to refer to SoftSim’s email of March 11, 2022. However, the Tribunal considers this email to constitute an objection under subsection 6(2) of the Regulations. These reasons therefore refer to the email as an objection.
[6]
Exhibit PR-2022-022-01.C at 1; Exhibit PR-2022-022-01.A (protected) at 393.
[7]
Further to a request from the Tribunal, SoftSim also submitted supplementary information on June 28, 2022.
[8]
The Tribunal has held that, in the absence of any indication that the matter may be reconsidered by the procuring entity, the mere fact that the parties continued to communicate does not suspend the prescribed deadlines; see Aero Support Canada Inc. (15 March 2016), PR-2015-065 (CITT) at para. 15; Groupe-conseil INTERALIA S.E.N.C. (20 October 2009), PR-2009-052 (CITT) at para. 15; IT/NET Ottawa Inc. (16 July 2009), PR‑2009-023 (CITT) at para. 11.
[9]
SoftSim also claimed that it was the only bidder from the Initial Solicitation that was not informed of the re-tender by PWGSC. SoftSim did not submit any information to indicate when it became aware, or reasonably should have become aware, of this ground of complaint. However, even if this ground of complaint were timely, in the Tribunal’s view this allegation is purely speculative, given that the information provided with the complaint does not include any evidence to support these statements. As such, the Tribunal finds that this allegation would not meet the condition for inquiry set out in section 7 of the Regulations, which requires that information provided by the complainant disclose a reasonable indication that the procurement has not been conducted in accordance with the applicable trade agreements.