File PR-2022-024 Akimbo Technologies Inc.

Decision made Tuesday, July 19, 2022 Decision and reasons issued Tuesday, August 2, 2022

 

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

BY

AKIMBO TECHNOLOGIES INC.

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

DECISION

With regard to Akimbo Technologies Inc.’s first ground of complaint related to allegations of biased and unqualified evaluators, pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act (CITT Act), the Canadian International Trade Tribunal has decided not to conduct an inquiry into the complaint on the basis that a final judicial decision was already pronounced by the Tribunal.

With regard to Akimbo Technologies Inc.’s second ground of complaint related to allegations of being deprived of the opportunity to be correctly reviewed and compared with the other proposals at the appropriate time for its project to be recommended for funding, pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry on the basis that there is no reasonable indication of a breach of the applicable trade agreements.

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] This complaint was filed by Akimbo Technologies Inc. (Akimbo), with respect to a call for proposals (CFP) (solicitation W7714-217869/A) by the Department of Public Works and Government Services (PWGSC) made on behalf of Defence Research and Development Canada, as part of the Canadian Safety and Security Program, seeking innovative science and technology proposals in response to defence, public safety and security challenges. [3]

[3] Akimbo submitted a bid in response to a challenge entitled “Tech ready and enabled for Disasters: Specific Technology innovations to deal with HILF Events” (Challenge). [4]

[4] In its complaint, Akimbo alleges that its proposal was unfairly evaluated and that, as a consequence, it was deprived of the right to a fair review for successful funding. [5] Specifically, Akimbo submits that:

(i) the evaluators were potentially biased or not qualified; [6] and

(ii) it has been “…deprived of the opportunity to be correctly reviewed and compared with other proposals” [7] at the appropriate time for successful funding in that, had its proposal been reviewed correctly in the first place, it would have been assessed with the other proposals at the same time and the reasons given by PWGSC for not funding the project would not have existed. [8]

[5] As a relief, Akimbo seeks, among other things, to be awarded the designated contract. [9]

BACKGROUND

[6] On March 16, 2021, PWGSC issued the CFP in question on Buyandsell.gc.ca. [10] Several amendments were issued to respond to potential bidders’ questions and extend the solicitation closing date. [11]

[7] The solicitation closed on May 27, 2021, at 2 p.m. EDT. [12] Akimbo submitted a proposal in response to the Challenge on or before the closing date.

[8] On January 28, 2022, PWGSC notified Akimbo by email that the submitted proposal had been found to be non-responsive because it had not achieved the minimum passing score of 85 points for the point-rated criteria. [13]

[9] Akimbo disagreed with the evaluators’ assessment and made an initial objection to PWGSC by email on February 1, 2022. In its correspondence, Akimbo expressed its concerns and inquired about the review process. [14]

[10] On February 2, 2022, in response to Akimbo’s email, PWGSC elaborated on the review process and requested that Akimbo outline, in more detail, its concerns and points of disagreement with the evaluators’ assessment. PWGSC further stated that there was a low probability that the process would result in the proposal being funded, considering that all funding was currently committed. [15]

[11] On February 2, 2022, Akimbo further inquired into the review process. [16] After PWGSC provided additional clarifications, [17] Akimbo indicated that it took issue with the fact that the review of its proposal would be done by the same evaluators as the ones who completed the initial evaluation, rather than by an “independent unbiased group”. [18]

[12] On February 3, 2022, PWGSC replied that the reviewers were unbiased and that the review process was subject to strict transparency and accountability. [19]

[13] On February 10, 2022, Akimbo emailed PWGSC a detailed outline of its points of concern and disagreements, with explanations, for consideration in the review process. [20]

[14] On March 1 and 30, 2022, having received no updates on the review process, Akimbo followed up with PWGSC. [21]

[15] On April 13, 2022, PWGSC informed Akimbo that the evaluators had reviewed its proposal and that it obtained the minimal passing score, thus qualifying for the next step of the procurement process, namely the determination of whether the proposal would be recommended for funding. [22]

[16] On May 2, 2022, PWGSC notified Akimbo by email that its proposal was not selected for funding from the pool of pre-qualified proposals. In support of its decision, PWGSC relied on two distribution of investment (DOI) considerations. As a primary DOI, PWGSC considered the previous years’ investments. PWGSC stated that, with regard to the proposed project, PWGSC had funded projects in a similar subject area in the past. As a secondary DOI, PWGSC considered its program priorities. In that regard, PWGSC stated that other projects were better aligned with the direction the program was headed. [23]

[17] On May 11, 2022, Akimbo asked PWGSC for a follow-up call to discuss and review the evaluators’ response. [24] PWGSC asked Akimbo to specify which responses it needed clarifications on. Akimbo provided this information but received no answer from PWGSC. [25]

[18] On May 13, 2022, Akimbo filed a first complaint with the Tribunal, arguing that the evaluators of its proposal were potentially biased or unqualified and that having its bid reviewed by the same evaluators that did the initial evaluation is a flawed and unfair process. Akimbo further argued that it was deprived of the opportunity of having its bid compared with the other proposals at the appropriate time. [26]

[19] On May 20, 2022, the Tribunal decided not to conduct an inquiry into the complaint. [27] The Tribunal found that the first ground of complaint did not disclose a reasonable indication of a breach of the relevant trade agreements and that the second ground of complaint was premature. [28]

[20] On June 29, 2022, PWGSC sent a letter to Akimbo, notifying it that even if its proposal had been properly evaluated as of January 28, 2022, PWGSC’s findings would have been the same and Akimbo’s proposal would not have been selected.

[21] On July 13, 2022, Akimbo submitted the current complaint to the Tribunal, which was considered filed on the same day. [29]

[22] On July 19, 2022, the Tribunal decided not to conduct an inquiry into the complaint.

ANALYSIS

[23] 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.

[24] With regard to the first ground of complaint, a final judicial decision that prevents it from considering this ground of complaint was already pronounced by the Tribunal.

[25] Additionally, the Tribunal finds that the second ground of complaint does not disclose a reasonable indication that the procurement was conducted in violation of the applicable trade agreements and, as a result, has decided not to conduct an inquiry into this ground of complaint.

A final judicial decision was already pronounced regarding the first ground of complaint

[26] The Tribunal finds that Akimbo’s allegation that the evaluators were potentially biased or not qualified constitutes an attempt to relitigate the same complaint. [30] Indeed, the procurement process that gave rise to the first and current complaints is the same, the relevant parties, namely Akimbo and PWGSC, are the same, and the allegation being made in relation to the evaluators is essentially the same.

[27] As noted above, in Akimbo Technologies, Akimbo had argued that the evaluators of its proposal were potentially biased or unqualified and that having its bid reviewed by the same evaluators that did the initial evaluation is a flawed and unfair process. Likewise, in the current case, Akimbo states that it has various objections to the evaluators’ comments that it finds concerning and, in its opinion, technically wrong. Akimbo further contends that having the same evaluators in charge of the review of its proposal as the ones who initially evaluated it is a flawed and unfair process. [31]

[28] Pursuant to the doctrine of res judicata, where a final judicial decision has been pronounced, a party is estopped from disputing the merits of the decision in a relitigation before the same court. [32]

[29] The first ground of complaint invoked by Akimbo in the current complaint has already been examined in Akimbo Technologies: the Tribunal found that it did not disclose a reasonable indication that the procurement process was not conducted in accordance with the applicable trade agreements. [33] The Tribunal’s prior decision disposed of the matter, which cannot be the subject of a new complaint.

[30] A narrow exception to the doctrine of res judicata allows the Tribunal to consider new evidence that could not, by reasonable diligence, have been produced in the first litigation. The Tribunal notes that Akimbo did not produce such new evidence and, therefore, the exception to the doctrine of res judicata cannot be invoked.

[31] In short, the Tribunal is of the view that the doctrine of res judicata applies to prevent it from considering the first ground of complaint. More specifically, the Tribunal cannot conduct an inquiry into this ground of complaint since it has already made a final determination in Akimbo Technologies that it did not disclose a reasonable indication of a breach of the relevant trade agreements. In light of the foregoing, the Tribunal concludes that it cannot re-examine Akimbo’s first ground of complaint and considers the matter closed.

The second ground of complaint does not disclose a reasonable indication of a breach of the relevant trade agreements

[32] Pursuant to paragraph 7(1)(c) of the Regulations, the Tribunal must determine whether the information provided by the complainant, and any other information examined by the Tribunal, discloses a reasonable indication that the procurement was not conducted in accordance with any of the applicable trade agreements set out in that subsection. The Tribunal has previously described the threshold as follows:

In procurement complaints, the party alleging that a procurement has not been conducted in accordance with the applicable trade agreements must provide some proof to support that claim. This is not to say that the complainant in a procurement dispute under one of the agreements has the burden of proving all necessary facts as a plaintiff generally does in a civil case. . . . However, the complainant must provide sufficient facts or arguments to demonstrate a reasonable indication that a breach of one of the trade agreements has taken place. [34]

[33] While paragraph 7(1)(c) of the Regulations does not impose a high threshold, a party challenging a procurement must provide some evidence in support of its claim. [35] Mere allegations made by a complainant that are unsupported by evidence are insufficient to establish a reasonable indication that the procurement process was conducted in breach of the trade agreements. [36]

[34] Akimbo alleges that, had its proposal been reviewed correctly in the first place and assessed at the same time as the other proposals, the reasons given by PWGSC for not funding the project would not have existed and, therefore, its proposal would have been selected for funding. [37]

[35] Having considered these allegations, as well as the evidence placed on the record, the Tribunal finds that the ground of complaint rests on allegations that are speculative and not supported by evidence. The complainant bears the burden of providing evidence in support of its contentions and putting forward “a factual, tangible foundation, such that it can conclude the complaint discloses a reasonable indication of a breach”. [38] Akimbo has provided no such evidence and has failed to demonstrate that, if its proposal had been reviewed at the same time as the other proposals, it would have been selected by PWGSC.

[36] Furthermore, the Tribunal notes that the selection process for funding as established in this CFP leaves a wide range of discretionary power to the procuring entity and the government institution, based on the factors specified therein. For instance, section 4.2 of the CFP states the following:

DRDC may select one proposal, more than one proposal or no proposal from the pool
of prequalified proposals. The decision to select a proposal is at the sole discretion of
Canada. Proposals which earn the highest overall pass mark may not be the proposals
selected. [39]

[37] PWGSC’s discretionary power in the selection process, as described in the CFP, further emphasizes the speculative nature of Akimbo’s allegation that its proposal would have been selected if it had been reviewed at the same time as the others.

[38] For these reasons, the Tribunal finds that the second ground of complaint does not disclose a reasonable indication that the procurement process was not conducted in accordance with the applicable trade agreements. Simply put, based on the record, the allegations made by Akimbo are not adequately supported by evidence.

DECISION

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