IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act.

BY

MIST MOBILITY INTEGRATED SYSTEMS TECHNOLOGY 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 Tribunal cannot consider this matter at this time because an objection is currently pending before the government institution and the complaint is therefore premature.

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.

SUMMARY OF THE COMPLAINT

[2] Mist Mobility Integrated Systems Technology Inc. (MMIST) filed a complaint with the Tribunal on July 27, 2022, with respect to a request for a standing offer (RFSO) (solicitation W6399-22LI26/B), issued by the Department of Public Works and Government Services, which is also known as Public Services and Procurement Canada (PSPC), [3] on behalf of the Department of National Defence, for the provision of Guided Precision Aerial Delivery Systems. The complaint was filed prior to the bid closing date scheduled for August 4, 2022. [4]

[3] MMIST raises a series of serious allegations concerning the integrity of the procurement process involving, among other things, overly prescriptive requirements, systemic behaviour, sole sourcing, improper tailoring of technical specifications, and the procuring entity’s failure to ensure fair and open competition. [5]

ANALYSIS

[4] Under subsection 6(2) of the Regulations, a potential supplier may file a complaint with the Tribunal following an objection made to the relevant government institution but only after 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.”

[5] On July 22, 2022, MMIST made an objection to PSPC. [6] However, this objection has not yet been answered by PSPC. [7]

[6] The way Parliament set out the scheme of the bid challenge mechanism at subsection 6(2) of the Regulations requires the Tribunal to stand down from considering a complaint when an objection is pending in front of a government institution, as it is currently in MMIST’s case. Because MMIST has not yet been “denied relief” regarding the objection that it raised to PSPC, the Tribunal can only determine that the complaint is premature at this time.

[7] The Tribunal notes that MMIST has been vigilant in its attempts at communicating with PSPC to seek resolution of the issues that it has raised. The Tribunal fully understands the pressing nature of MMIST’s objection, given that the solicitation is currently set to close on August 4, 2022. The Tribunal trusts that PSPC will address MMIST’s grievances without delay. If MMIST does not receive a satisfactory answer from PSPC or does not receive a timely answer, it can proceed as indicated below.

[8] If PSPC answers MMIST in the coming days, but MMIST is not satisfied with the answers provided and still wishes to maintain its grievances, it can refile a complaint with the Tribunal. It will have 10 working days from receipt of that “denial of relief” from PSPC to refile such a complaint with the Tribunal. MMIST can ask that the materials already filed be transferred to the new file (i.e. it does not need to refile materials already provided), and it can provide additional evidence in support of its position as it sees necessary. The Tribunal will then examine MMIST’s complaint to determine whether it meets the conditions necessary to initiate an inquiry.

[9] If PSPC does not answer MMIST by the current bid closing deadline of August 4, 2022, MMIST will then, necessarily, be able to consider that PSPC has denied the relief being sought or put differently, that it has received “constructive knowledge of the denial of relief” by the government institution, as envisioned by subsection 6(2) of the Regulations. MMIST will then have 10 working days from August 4, 2022 (or until August 18, 2022) to refile a complaint with the Tribunal. As in the case of the scenario described in the preceding paragraph, MMIST can ask that the materials already filed be transferred to the new file and will be able to file additional evidence. Likewise, the Tribunal will then examine MMIST’s complaint to determine whether it meets the conditions necessary to initiate an inquiry.

[10] In either scenario, if the Tribunal decides to initiate an inquiry it will decide whether an order to postpone the awarding of the contract is warranted, if MMIST makes that request again.

[11] Importantly, the Tribunal notes that the arguments that MMIST set out in its complaint to the Tribunal appear to be more detailed than the ones that it set out in its objection to PSPC. The Tribunal also notes that information on file appears to indicate that PSPC discouraged MMIST from continuing to dialogue with PSPC. [8] The Tribunal further notes that the materials filed by MMIST also appear to show difficulties in the communications between MMIST and PSPC beginning in 2020. [9] Nevertheless, because MMIST is at the “objection” phase of the procurement grievance process, and particularly because time is of the essence in this matter, the Tribunal strongly encourages MMIST to provide all evidence and arguments that it wishes to make in relation to this matter available directly to PSPC. Otherwise, MMIST is inadvertently splitting its efforts at seeing a resolution of this matter between PSPC and the Tribunal. As such, MMIST could consider simply sending to PSPC a full copy of the materials that it has sent to the Tribunal, so that PSPC may consider MMIST’s position in its entirety. MMIST may also wish to provide PSPC with a copy of this decision and statement of reasons, in particular given that August 1, 2022, is a holiday for many officials in the federal public service, and the current bid closing deadline of August 4, 2022, is fast approaching.

[12] Lastly, the Tribunal encourages MMIST to consult the Procurement Inquiries - Guide, available on the Tribunal’s website. [10] In particular, MMIST ought to apprise itself of the section entitled “Tribunal inquiry process”, as well as the subsections entitled “Contract Award and Performance” (specifically in relation to the Tribunal’s power to postpone the award of a contract), and “Remedies and Costs”. The Registry of the Tribunal does not provide advice of legal nature to complainants; however, Registry officials are available to answer other types of questions that parties have concerning the conduct of procurement complaint proceedings at the Tribunal. Parties are encouraged to consult the Registry when in doubt.

DECISION

[13] Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint. The Tribunal cannot consider this matter at this time because an objection is currently pending before the government institution and the complaint is therefore premature.