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

BY

982804 ALBERTA LTD O/A ELHART’S ELECTRIC

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 statement of reasons will be issued at a later date.

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 must decide whether to conduct an inquiry into the complaint.

SUMMARY OF THE COMPLAINT

[2] This complaint by 982804 Alberta Ltd o/a Elhart’s Electric (Elhart’s Electric) relates to a request for standing offers (RFSO) (solicitation WS4046199598) issued by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of National Defence, for the provision of commercial electrical services on an “as requested basis” at certain locations in Alberta.

[3] Elhart’s Electric alleges that PWGSC wrongly concluded that its proposal did not comply with requirement 4.1.1.1.2 of the RFSO, which required that bidders submit a certificate of recognition (COR). Elhart’s Electric claims that the Small Employer Certificate of Recognition (SECOR) it submitted should have been deemed compliant and that, if PWGSC did not intend to accept SECORs, the RFSO should have specified it.

[4] As a remedy, Elhart’s Electric requests that a new solicitation be issued and that its bid be re‑evaluated. Elhart’s Electric also requests that it be compensated for loss of revenue.

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

BACKGROUND[3]

[6] The RFSO was published on CanadaBuys on August 31, 2023, with a closing date of September 20, 2023, at 2 p.m. EDT.[4]

[7] On September 20, 2023, Elhart’s Electric submitted its proposal to PWGSC.[5]

[8] According to the complaint, on September 29, 2023, PWGSC wrote to Elhart’s Electric to request that it submit a valid COR by October 4, 2023, pursuant to section 4.1.1 of the RFSO. PWGSC advised that if the COR was not provided in the requested time frame, Elhart’s Electric’s bid would be considered non-responsive.[6]

[9] On October 3, 2023, Elhart’s Electric responded to PWGSC by indicating that its COR could be found in Volume 2, at pages 3 and 4 of its proposal.[7]

[10] On the same day, PWGSC advised Elhart’s Electric that the mandatory technical criteria of the RFSO required a current and valid COR, and that a SECOR was not a COR given that a SECOR audit only requires a self-assessment, whereas a COR audit must be performed by a qualified external auditor. PWGSC also reiterated that if Elhart’s Electric did not provide a valid COR before October 4, 2023, its offer would be deemed non-responsive.[8]

[11] The complaint further indicates that on October 4, 2023, Elhart’s Electric wrote to PWGSC to argue that the RFSO only requested a current and valid COR and did not mention the exclusion of SECORs. Elhart’s Electric also explained that, according to the Alberta Association for Safety Partnerships (AASP), a COR and a SECOR are “one entity with two variations”.[9] Elhart’s Electric further argued that if PWGSC intended to exclude SECORs, the RFSO should have clearly stated it and that not accepting SECORs was putting small businesses at a disadvantage in the tendering process due to the high costs of maintaining the COR. Elhart’s Electric also advised that it was in the process of completing its full COR and that, after consultation with the AASP, it acquired the SECOR in order to qualify for this RFSO. Finally, Elhart’s Electric advised that it would not be submitting a COR as part of its proposal.[10]

[12] On October 11, 2023, PWGSC advised Elhart’s Electric that its bid was deemed non-responsive because of its failure to comply with the mandatory requirement of a valid COR. In response to the claim by Elhart’s Electric that it consulted with the AASP, PWGSC explained that only information provided by the standing offer authority should be relied on for the purposes of understanding the RFSO.[11]

[13] On October 13, 2023, PWGSC explained to Elhart’s Electric that the decision to deem its bid non-responsive remained unchanged.[12]

[14] On October 27, 2023, Elhart’s Electric filed this complaint to the Tribunal.[13]

[15] On November 3, 2023, the Tribunal decided not to conduct an inquiry into this complaint.

RELEVANT PROVISION OF THE REQUEST FOR STANDING OFFERS

[16] Part 4 of the RFSO (Evaluation Procedures and Basis of Selection) provided the following:[14]

4.1.1.1.2 The Offeror must possess a current and valid Certificate of Recognition (COR) Safety Certification including accident reporting system and emergency response plans at the solicitation closing date. The Offeror should submit the COR certification with their offer. Offerors that do not include the COR certification with their offer will be given 2 calendar days to provide it. Offerors that fail to provide the COR certification within the allotted time period will have their offers deemed non-responsive and receive no further consideration.

ANALYSIS

[17] 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.

[18] For the following reasons, the Tribunal finds that the fourth condition is not met. The complaint does not disclose a reasonable indication of a breach of the relevant trade agreement.[15]

No reasonable indication that PWGSC improperly declared Elhart’s Electric’s bid non-compliant with mandatory technical requirement 4.1.1.1.2

[19] The relevant provisions of the Canadian Free Trade Agreement raised by the allegations made by Elhart’s Electric can be summarized as follows:

· Article 507(3)(b) provides that a procuring entity must base its evaluation on the conditions that it has specified in advance in its tender notices or tender documentation; and

· Article 515(4) requires that, to be considered for an award, a tender must comply with the essential requirements set out in the tender notices and tender documentation.

[20] In the present complaint, Elhart’s Electric alleges that its bid should not have been deemed non-compliant on the basis of criterion 4.1.1.1.2 of the RFSO. The Tribunal must consider whether the complaint provides a reasonable indication that PWGSC evaluated and rejected the bid contrary to the requirements of the RFSO.

[21] Elhart’s Electric’s complaint is based on the assumption that a COR and a SECOR would be equivalent for the purposes of the RFSO. According to Elhart’s Electric, this information was confirmed by the AASP,[16] an issuer of COR and SECOR certifications in the province of Alberta.[17] According to Elhart’s Electric, the RFSO should have indicated that SECORs would not be accepted if that was PWGSC’s intention.

[22] However, in its correspondence to Elhart’s Electric as described in the complaint, PWGSC indicated that the RFSO specified that a current and valid COR was required to comply with the mandatory requirements. According to PWGSC, a SECOR and a COR are different, and a SECOR is not deemed acceptable for the purposes of this RFSO.[18]

[23] When PWGSC was unable to locate the COR in Elhart’s Electric bid, it appears that it gave Elhart’s Electric the opportunity to provide the document within five calendar days.[19] Thus, Elhart’s Electric was given a longer time frame to provide the COR than the two calendar days set out in the RFSO.[20]

[24] On the basis of the information provided in the complaint, the Tribunal finds no reasonable indication that PWGSC deemed Elhart’s Electric’s bid non-compliant inconsistently with the mandatory criteria of the RFSO. The Tribunal finds that section 4.1.1.1.2 is clear and unambiguous. It plainly states that a COR is required. Further, having regard to section 4.1.1.1.2 of the RFSO, PWGSC followed the terms of the tender documents when it determined that Elhart’s Electric bid was not compliant when it could not produce a COR. Failure to comply with a mandatory requirement of the RFSO was sufficient for PWGSC to reject Elhart’s Electric’s bid, and indeed, required, having regard to the express terms of the RFSO at section 4.1.1.1.2.

[25] A procuring entity must evaluate bids against the criteria of a solicitation thoroughly and strictly, and it is the bidder’s responsibility to ensure that its proposal is compliant with all essential elements of the RFSO.[21] As such, bidders should not make assumptions about the terms of an RFSO.[22] If a bidder has any doubt or question about the essential elements of the solicitation, it should pose questions to and seek clarification from the procuring entity during the bid process.[23] Understanding the requirements of an RFSO ought to be achieved during the bidding period, not after, and bidders can avert disappointment and provide better responses to published opportunities if they carefully consider all the terms of a solicitation and pose questions instead of proceeding upon assumptions.[24]

[26] For the foregoing reasons, the Tribunal finds that the complaint discloses no reasonable indication that Elhart’s Electric’s bid was evaluated inconsistently with the RFSO, and therefore, the requirements of the relevant trade agreement.

DECISION

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