File PR-2022-023 Higher Standard Sales

Decision made Thursday, July 14, 2022 Decision and reasons issued Tuesday, July 26, 2022

 

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

BY

Higher Standard Sales

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, as it is 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] The complaint by Higher Standard Sales (HSS) relates to a procurement (solicitation W0130-21GC31) issued by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of National Defence (DND), for the acquisition of sea containers.

[3] HSS is concerned that its bid will be deemed unresponsive, as PWGSC has mentioned that no additional information can be added after the closing date of the tender. More specifically, HSS is concerned that it will not meet the following criteria:

• Mandatory technical criteria 9.3.3: These dry cargo containers must be built to meet the ISO 668 and ISO 1496-1 standards.

• Mandatory technical criteria 9.3.6: The serial number on each container must be kept.

[4] HSS submits that section 15 of the Standard Acquisition Clauses and Conditions (SACC) Manual allows the addition of information after the bid closing date. HSS also submits that the amendment to the request for proposal (RFP) removed the serial number requirement [3] and that its bid already indicated that the containers are “ISO containers”.

[5] For the reasons set out below, the Tribunal has decided not to conduct an inquiry into the complaint.

BACKGROUND

[6] The RFP in question was published on Buyandsell.gc.ca [4] (now CanadaBuys) on May 3, 2022, with a closing date of May 27, 2022, at 11:59 p.m. EDT. The contract related to this procurement has not yet been awarded.

[7] On May 20, 2022, an amendment to the RFP was published on SAP Ariba, removing the following sections of technical criteria: “3.5: Containers must be marked for identification and loading, for example NATO stock number 8145-21-AAD-0842.NSN” and “3.6: No Canadian Forces Container Unit (CFCU) number is required, since the container needs to be for storage only and not for shipping.” [5]

[8] On July 5, 2022, HSS received from PWGSC the following clarification request concerning mandatory technical criteria 9.3.3 and 9.3.6: [6]

In order to validate the conformity of your technical bid, could you please confirm where we can find the information of the mandatory technical criteria below in your technical documentation provided with your submission. [sic] (please note that no other documents or information can be added to this email).

Part 9:

Mandatory technical criteria 9.3.3: These dry cargo containers must be built to meet the ISO 668 and ISO 1496-1 standards.

Mandatory technical criteria 9.3.6: The serial number on each container must be kept.

Please return your response by, July 7, 4:00 [p.m.] EDT.

[9] HSS replied by email that it was implied in its bid that the sea containers meet the ISO standards of mandatory technical criterion 9.3.3 and, therefore, it would have been redundant to include this information. HSS further replied that the requirement concerning the serial number was removed by the amendment of May 20, 2022, and attached supporting documentation. [7] PWGSC informed HSS that no additional information can be added after the closing date of the tender. [8]

[10] On June 8, 2022, HSS filed this complaint with the Tribunal. The same day, the Tribunal requested a viewable version of the complaint form and the emails submitted by HSS.

[11] On July 11, 2022, HSS submitted the requested documents. However, the Tribunal remained unable to view the emails.

[12] On July 12, 2022, the Tribunal requested additional information pursuant to subsection 30.12(2) of the CITT Act. The same day, HSS filed the requested documents, and its complaint was then considered to have been filed. [9]

[13] On July 14, 2022, the Tribunal decided not to conduct an inquiry into the complaint at this time.

ANALYSIS

[14] Pursuant to sections 6 and 7 of the Regulations, after receiving a complaint that complies with subsection 30.11(2) of the CITT Act, the Tribunal must determine whether the following four conditions are met before it can conduct an inquiry:

(i) the complaint has been filed within the time limits prescribed by section 6 of the Regulations;

(ii) the complainant is a potential supplier;

(iii) the complaint is in respect of a designated contract; and

(iv) the information provided discloses a reasonable indication that the procurement has not been conducted in accordance with the relevant trade agreements.

[15] For the following reasons, the Tribunal finds that the complaint is premature. Therefore, the Tribunal will not conduct an inquiry at this time.

The complaint is premature

[16] Section 6 of the Regulations provides that 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. [10]

[17] The Tribunal notes that HSS has not raised any objection with PWGSC.

[18] The Tribunal further notes that HSS’s bid has not yet been rejected by PWGSC. In the absence of a clear indication that HSS’s proposal will be rejected, the Tribunal is of the view that the complaint may well be based primarily on speculation and would therefore be premature.

Timeline for any future complaint

[19] The Tribunal’s decision does not preclude HSS from filing a new complaint if and when PWGSC rejects HSS’s bid, within 10 working days of receiving the letter of regret, if it still feels aggrieved. Alternatively, HSS could raise an objection with PWGSC. HSS could then file a new complaint within 10 working days from receiving a denial of relief from PWGSC.

[20] In either case, if HSS 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 because it is premature.