File PR-2025-031 Carmichael Engineering Ltd.

Decision made Thursday, October 2, 2025 Decision issued Monday, October 6, 2025 Reasons issued Monday, October 20, 2025

 

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

BY

CARMICHAEL ENGINEERING LTD.

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 because it does not disclose a reasonable indication of a breach of the applicable trade agreements.

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 COMPLAINT

[2] The complaint pertains to a request for proposal (RFP) issued by the Department of Public Works and Government Services (PWGSC) for the provision of maintenance services for heating, ventilation and air conditioning equipment (solicitation WS5240300606).[3]

[3] The complainant, Carmichael Engineering Ltd. (Carmichael) alleges that it was unfairly disqualified from the solicitation process and identified five main grounds of complaint[4], which can be summarized as follows:

· PWGSC mishandled the clarification process when it rejected Carmichael’s revised Annex Technical Criteria with another technician’s valid Aerial Manlift Certificate.

· PWGSC introduced a new mandatory criterion when it rejected Carmichael’s revised bid because Carmichael was not allowed to change its bid once it had been submitted.

· PWGSC unequally treated Carmichael when it refused to consider its corrected submission.

· PWGSC provided Carmichael with a deficient debrief and final response.

· There were inconsistencies in PWGSC’s communication with respect to the evaluated offered price identified in the regret letter PWGSC sent to Carmichael September 9, 2025, and the contract value listed on the Government of Canada’s tender portal.

[4] For the reasons provided below, the Tribunal finds that the complaint does not disclose a reasonable indication of a breach of the applicable trade agreements.

PROCEDURAL BACKGROUND

[5] On August 18, 2025, Carmichael submitted a proposal to PWGSC.[5]

[6] On August 22, 2025, PWGSC sent an email to Carmichael indicating that its Annex Technical Criteria included an Aerial Manlift Certificate for one of Carmichael’s proposed technicians (referred to below as “T. I.”), signed by the same technician. PWGSC also indicated that while it understood that the technician may have signing authority, it does not accept self-signed certificates. PWGSC requested that Carmichael provide a certificate signed by another authorized individual by August 26, 2025.[6]

[7] On August 25, 2025, in response to PWGSC’s request, Carmichael submitted a modified Annex Technical Criteria replacing T. I. with a different technician (referred to below as “C. R.”), along with valid certificates for C. R. Carmichael indicated that it wanted to ensure that it returned the mandatory documents to PWGSC as soon as possible.[7] PWGSC acknowledged receipt of this information on August 26, 2025, with a one-word message: “Thanks.”[8]

[8] On September 9, 2025, PWGSC sent Carmichael an email indicating that its bid did not comply with all the mandatory requirements, specifically regarding T. I.’s Aerial Manlift Certificate. The email also indicated that a contract had been awarded to another company and the evaluated offer price was $523,183.35.[9] On the same day, Carmichael sent an email to PWGSC requesting a debrief regarding the results of the solicitation.[10]

[9] On September 10, 2025, a debrief was held by videoconference with representatives from PWGSC and Carmichael. During the debrief, discussions were held regarding Carmichael’s disqualification. PWGSC stated that technicians “cannot be changed once the bid has been submitted” and therefore the revised certificate provided by Carmichael on August 25, 2025, would not be considered. [11]

[10] On September 12, 2025, following the debrief, Carmichael emailed PWGSC to raise three main concerns regarding the substitution of technicians, validity of the certificates and consistency of the evaluation.[12]

[11] On September 22, 2025, PWGSC sent a “full and final” response to Carmichael’s September 12, 2025, email. PWGSC maintained its position that Carmichael’s submission was non-compliant and provided a detailed explanation of its position. In particular, PWGSC indicated that Carmichael justified substituting T. I. for C. R. on the basis of wanting to “return the mandatory documents to [PWGSC] as soon as possible”, which is not one of the “reasons beyond the Offeror’s control” listed in the RFP.[13]

[12] On September 23, 2025, Carmichael submitted a complaint to the Tribunal.[14] On September 24, 2025, the Tribunal requested additional information before it could consider the complaint complete.[15] Carmichael provided the requested additional information on September 25, 2025.[16]

[13] On September 26, 2025, the Tribunal acknowledged receipt of a complete complaint, and requested that Carmichael clarify and confirm the reasons why it substituted technicians in its August 25, 2025, response to PWGSC.[17] On the same day, Carmichael responded that it did so in order to comply with PWGSC’s August 22, 2025, request. Carmichael indicated that PWGSC’s email did not clarify or specify that the technician could not be replaced.[18]

[14] On October 1, 2025, the Tribunal asked Carmichael to confirm whether the “Annex Technical Criteria modified – Carmichael Engineering REV Aug 25, 2025” document was part of its original bid submitted at bid closing.[19] On the same day, Carmichael confirmed that the document was not part of its original bid.[20]

ANALYSIS

[15] The CITT Act and Regulations prescribe a number of conditions that must be met before the Tribunal can conduct an inquiry into a complaint.[21] The Tribunal finds that one of the conditions for inquiry was not met in this case, which is that the information provided by the complainant does not disclose a reasonable indication that the procurement process was not conducted in accordance with the applicable trade agreements.[22] The Tribunal will therefore not consider the other conditions for inquiry.

Ground 1: PWGSC did not “mishandle” the clarification process

[16] In its complaint, Carmichael asserted that PWGSC mishandled the clarification process by requesting that it resubmit T. I.’s Aerial Manlift Certificate, as the original was self-signed. Carmichael considers it complied with the request by submitting the required certificates for C. R., a substitute technician. As PWGSC acknowledged receipt of these revised certificates with no immediate objection, Carmichael submitted that it had a “reasonable expectation” that compliance had been restored by submitting C. R.’s certificates.[23]

[17] Having reviewed the whole record, the Tribunal cannot see how PWGSC’s behaviour after the bid was submitted was inconsistent with its obligations under the applicable trade agreements. In considering Carmichael’s complaint, the Tribunal deemed appropriate to conduct its analysis on the basis of the Canadian Free Trade Agreement (CFTA).

[18] At the initial stage of evaluating Carmichael’s bid, PWGSC invoked the procedure set out in section 4.7 of the RFP, titled “Completeness of the offer”, which allows it to seek clarification on the content of a bid submitted by a potential supplier.[24] That clause stipulates that the review will be “limited to identifying whether any information submitted as part of the offer can be accessed, opened and/or decoded” [emphasis added]. Similar provisions are commonly found in procurement processes and are consistent with Article 515(3) of the CFTA, which allows procuring entities to provide “a supplier with an opportunity to correct unintentional errors of form between the opening of tenders and the awarding of the contract” [emphasis added], as long as the same opportunity is provided to all participating suppliers.

[19] In its communication to Carmichael on August 22, PWGSC clearly offered Carmichael an opportunity to correct a very specific issue with T. I.’s certificate by returning a certificate “that is signed by an authorized representative other than the participant” [emphasis in original].[25]

[20] Instead of strictly complying with PWGSC’s request and providing a certificate for T. I. “signed by an authorized representative other than the participant”, Carmichael substantially modified its original bid by replacing the resource included in its original bid (T. I.) with one who was not (C. R.). This goes beyond what is contemplated by the clarification process set out in section 4.7 of the RFP, as it clearly constitutes new information not submitted as part of the original bid.

[21] In light of these facts, the Tribunal cannot see how PWGSC has “mishandled” the clarification process set out in section 4.7 of the RFP. Therefore, the Tribunal finds that Carmichael’s first ground of complaint does not provide a reasonable indication of a breach of the applicable trade agreements.

Ground 2: PWGSC did not introduce a new mandatory criterion in its treatment of Carmichael’s modified Annex Technical Criteria

[22] In support of its substitution of a technician in its bid, Carmichael points to language found in the Annex Offeror Declaration Form which, in its view, authorizes such a substitution. Carmichael believes that PWGSC’s refusal to consider its modified bid is equivalent to a new mandatory criterion not disclosed in the RFP.[26]

[23] The RFP’s Annex Offeror Declaration Form contains the following language regarding substitution:[27]

Offeror resources

The Offeror, if awarded a resulting contract, will provide the resources proposed in its offer

Named individuals

( ) The Offeror certifies that every individual proposed in the offer will be available to perform the Work as required by and at the time specified in this solicitation of offers.

If for reasons beyond its control, the Offeror is unable to provide the services of an individual named in its offer, the Offeror may propose a substitute with similar qualifications and experience. Canada will, for these purposes, consider only the following reasons as being beyond the Offeror’s control: death, sickness, maternity and parental leave, retirement, resignation, dismissal for cause, and termination of an agreement for default.

The Offeror must advise Canada of the reason for the substitution and provide the substitute resource’s name, qualifications, and experience. Canada will evaluate the substitution against the same requirements as the original resource.

[Emphasis in original]

[24] A plain reading of this clause, in the overall context of RFP, indicates that it is mainly meant to be invoked after a contract has been awarded. The annex states at the outset that “Offerors who submit an offer agree to be bound by the instructions, clauses and conditions of the offer solicitation and accept the clauses and conditions of the resulting contract” [emphasis added]. [28]

[25] That said, the RFP does not preclude using the substitution clause to modify the content of a bid before the contract award, provided the conditions set out in the clause are met. Carmichael’s submission of a modified Annex Technical Criteria clearly did not meet these conditions.

[26] Contrary to what is implied by the complainant, and as noted by the Tribunal above, Carmichael’s decision to substitute T. I. for C. R. was its own, even if it allegedly did so in response to PWGSC’s identification of an issue with T. I.’s certificate. Nothing on the record indicates that Carmichael provided any other justification for the substitution or invoked any of the reasons stipulated in the substitution clause as being beyond its control.

[27] The sole reason for the substitution seems to have been to “correct” the deficiency in the original bid with respect to T. I.’s certificate. In the Tribunal’s view, this is not one of the reasons stated in the RFP that allow for a substitution. Given that the clause is clearly stated in the RFP, its application cannot constitute a new mandatory criterion in breach of applicable trade agreements, as it seems to be alleged by Carmichael. In fact, had PWGSC accepted the substitution sought by Carmichael, it would have allowed Carmichael to correct its submission beyond “unintentional errors of form” and in a way “not made available to all participating suppliers”, contrary to Article 515(3) of the CFTA.

[28] As a result, the Tribunal considers that Carmichael’s second ground of complaint does not disclose a reasonable indication of a breach of the applicable trade agreements.

Ground 3: Carmichael provided no evidence that PWGSC treated its bid unequally

[29] Carmichael based this ground of complaint on the fact that PWGSC “refused to consider [its] corrected submission while deeming the awardee fully compliant.” Carmichael added that “this inconsistent treatment unfairly prevented [it] from reaching the financial evaluation stage, where it would be determined that [its] price was significantly lower than the awarded bid”.[29]

[30] The RFP made it very clear that “Canada will declare any offer that fails to meet all mandatory solicitation requirements non-compliant.”[30] As noted above, Carmichael’s bid, as submitted by bid closing, included a certificate for T. I. deemed invalid by PWGSC. Because Carmichael did not correct this non-conformity as requested, and its attempted substitution did not meet the requirements of the RFP, an evaluation of Carmichael’s financial bid would not have made its overall bid compliant. Carmichael did not provide further evidence that PWGSC treated other submissions differently from its own. As PWGSC seems to have strictly adhered to the terms of the RFP in evaluating Carmichael’s bid, the Tribunal finds that this ground of complaint does not disclose a reasonable indication of a breach of the applicable trade agreements.

Ground 4: There is no indication on the record that PWGSC provided a “deficient debrief” to Carmichael

[31] This ground of complaint is essentially based on Carmichael’s opinion that the debrief held on September 10, 2025, did not alter PWGSC’s view that “the substitution was invalid.”[31] As noted previously, the Tribunal considers that PWGSC was reasonably entitled to refuse the substitution of technicians sought by Carmichael.

[32] Article 516(1) of the CFTA requires a procuring entity to “promptly inform participating suppliers of its contract award decisions, and, on the request of a supplier … do so in writing.” It also states that “[s]ubject to Article 517, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select its tender.” PWGSC promptly indicated that it had found Carmichael’s bid non-responsive, provided a debrief and subsequently provided a substantive response to Carmichael’s objections. The Tribunal can only conclude from the evidence on the record that PWGSC applied the terms of Article 516(1) of the CFTA.

[33] The Tribunal therefore finds that this ground of complaint does not disclose a reasonable indication of a breach of applicable trade agreements.

Ground 5: Discrepancies or errors in the reported value of the awarded contract do not indicate a breach of the trade agreements

[34] The complainant alleges that there is a discrepancy between the awardee’s evaluated offered price of $523,183.35, as noted in PWGSC’s regret letter of September 9, 2025[32], and the contract value of $651,663.48, as indicated in the Contract Award Notice published on the CanadaBuys website. Carmichael notes that its own bid was lower than both of these amounts. Carmichael claims this discrepancy calls into question the accuracy of PWGSC communications and the reliability of the evaluation process.

[35] The complaint does not explain how such a discrepancy could constitute a breach of the applicable trade agreements. While these two amounts are clearly different, they are not required to be the same. As far as the record indicates, PWGSC seems to have followed the principles set out, for example, under articles 516(1) and 516(2) of the CFTA.

[36] Accordingly, the Tribunal finds that this ground of complaint does not disclose a reasonable indication of a breach of applicable trade agreements.

DECISION

[37] Pursuant to subsection 30.13(1) of the CITT Act, and for the above reasons, the Tribunal has decided not to conduct an inquiry into the complaint because it does not disclose a reasonable indication of a breach of the applicable trade agreements.