GENESIS SECURITY INC.
File No. PR-2015-055
Tuesday, February 2, 2016
Tuesday, February 2, 2016
Monday, February 15, 2016
TABLE OF CONTENTS
IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.).
GENESIS SECURITY INC.
THE CANADA BORDER SERVICES AGENCY
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.
- Subsection 30.11(1) of the Canadian International Trade Tribunal Act provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations, a potential supplier may file a complaint with the Canadian International Trade Tribunal (the 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.
- This complaint by Genesis Security Inc. (Genesis) concerns a Request for Proposal (RFP) (Solicitation No. 47890-157202/B) by the Department of Public Works and Government Services (PWGSC), on behalf of the Canada Border Services Agency (CBSA), for the provision of security guards and related transportation services. The contract was awarded to Garda Canada Security Corporation (Garda).
- Genesis alleged that the requirements, technical specifications and overall evaluation criteria of the RFP were drafted in such a way as to reflect an undisclosed preference for particular bidders. In the alternative, Genesis submitted that the tender document deliberately prevented it from meeting the requirements of the procurement even though it had been the incumbent supplier. As a remedy, Genesis requested that it be awarded the designated contract, as well as costs incurred in the preparation of its bid and complaint submission.
- The RFP was issued on March 5, 2015, shortly after a previous RFP (issued in December 2014) had not been awarded because, in Genesis’s view, “. . . few, if any, bidders qualified . . . .”
- According to Genesis, both RFPs were similar in certain respects. However, in its view, the RFP at issue in this complaint was drafted in such a way as to “. . . significantly limit or undermine competition . . .” by favouring some bidders over others (and Genesis in particular).
- Genesis submitted its bid before the bid closing date of April 15, 2015.
- On July 8, 2015, the CBSA informed Genesis that its proposal was non-responsive because it did not obtain the minimum number of points required by the mandatory requirements of the RFP. It also informed Genesis that Garda was the winning bidder.
- On September 10, 2015, PWGSC and the CBSA held a debriefing for Genesis.
- On January 27, 2016, Genesis filed this complaint with the Tribunal.
- Subsection 6(1) of the Regulations provides that a complaint shall be filed with the Tribunal “. . . not 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 potential supplier.” In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have been aware, of the grounds of its complaint to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.
- In its complaint, Genesis acknowledged that it had not filed an objection with PWGSC. Furthermore, it noted that it did not contest PWGSC’s finding that its bid did not meet the mandatory requirements of the RFP. Rather, Genesis asserted that some of the requirements and technical specifications of the RFP, namely, those concerning the experience of the bidder and the years and hours of guard service completed, were drafted in such a way as to limit or undermine competition.
- Nevertheless, Genesis submitted its proposal and did not raise its concerns about the terms of the RFP with PWGSC. As such, the Tribunal can only conclude that Genesis became aware, or reasonably should have become aware, of its ground of complaint (i.e. that the requirements, technical specifications and overall evaluation criteria in the RFP were drafted to reflect an undisclosed preference for certain bidders) before it submitted its proposal.
- In previous cases, the Tribunal has found that, if a potential supplier believes that the criteria set out in an RFP are overly stringent or impossible to meet, it must file a complaint in a timely manner (i.e. within 10 working days). A complainant may not accumulate grievances only to present them after its bid is rejected.
- Applying those findings to the case at hand, Genesis would have had until April 29, 2015 (i.e. 10 working days after April 15, 2015) to either object to PWGSC or file a complaint with the Tribunal. As no objection was made to PWGSC, and the complaint was not filed until January 27, 2016, the Tribunal finds that Genesis did not comply with the timeliness requirement as set out in section 6 of the Regulations. Therefore, the Tribunal must conclude that Genesis’s complaint is late.
- Even if Genesis had not become aware of its ground of complaint until the debriefing with the CBSA and PWGSC, which the Tribunal finds did not occur in this case, it would only have had 10 days from the date of the debriefing to either object to PWGSC or to file its complaint with the Tribunal. Given that the debriefing was held on September 10, 2015, Genesis would only have had until September 24, 2015, to file a complaint with the Tribunal or to object to PWGSC. Genesis neither objected to the drafting of the RFP by September 24, 2015, nor filed its complaint with the Tribunal before that date. Thus, even if the Tribunal had found that Genesis did not discover the ground of its complaint until the debriefing with PWGSC, the complaint was not filed in a timely manner.
- In light of the foregoing, the Tribunal finds that the filing of the complaint was not timely and that it therefore cannot inquire into the complaint.
- Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.
. R.S.C., 1985, c. 47 (4th Supp.) [CITT Act].
. S.O.R./93-602 [Regulations].
. Complaint, Detailed Statement of Facts and Argument at para. 28.
. APM Diesel 1992 Inc. (15 February 2012), PR-2011-052 (CITT) at para. 15; IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd., 2002 FCA 284 (CanLII) at paras. 18-21.