Procurement

Determinations

3788687 CANADA INC. AFFILIATED WITH THE WESTCLIFF GROUP OF COMPANIES AND 39006001 CANADA INC.
File No. PR-2008-024

Decision made
Friday, August 29, 2008

Decision and reasons issued
Friday, September 5, 2008

• DECISION
• STATEMENT OF REASONS
• • DECISION

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IN THE MATTER OF a complaint filed under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47

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.

Diane Vincent
Diane Vincent
Presiding Member

Hélène Nadeau
Hélène Nadeau
Secretary

STATEMENT OF REASONS

1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations, ² 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. Moreover, 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.

2. The complaint relates to a procurement (Solicitation No. 5225-2-2007-5) by the Department of Public Works and Government Services (PWGSC) for the rental of office and warehouse space, the required parking spaces, as well as related property management services.

3. 3788687 Canada Inc. affiliated with The Westcliff Group of Companies and 39006001 Canada Inc. (Westcliff) alleged that PWGSC improperly declared its Request for Qualification (RFQ) non-compliant.

4. Subsection 6(2) of the Regulations provides that a potential supplier that has made an objection to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal “. . . within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier.”

5. On July 18, 2008, PWGSC advised Westcliff that, since its RFQ did not meet certain mandatory requirements of the project, it would not be evaluated. According to Westcliff, it received that letter on July 21, 2008. On July 31, 2008, Westcliff filed an objection with PWGSC. In a letter dated August 8, 2008, PWGSC advised Westcliff that it would not reconsider its decision. According to Westcliff, it received that letter on August 11, 2008. The Tribunal is of the opinion that Westcliff filed its objection within the time limit specified in subsection 6(2) of the Regulations and that it had knowledge of PWGSC’s denial of relief on August 11, 2008. In order to meet the requirements of subsection 6(2), Westcliff had to file its complaint not later than August 25, 2008.

6. Subsection 30.11(2) of the CITT Act reads as follows: “A complaint must . . . (f) include all information and documents relevant to the complaint that are in the complainant’s possession . . . .”

7. When the complaint was received at the Tribunal on August 25, 2008, on the 10th working day after which Westcliff had knowledge of PWGSC’s denial of relief, it did not include all the essential documents pertaining to the complaint, a fact acknowledged by Westcliff. ³ Westcliff also informed the Tribunal that those documents would follow. On August 27, 2008, a copy of PWGSC’s document entitled “Selection of Tenderers Invited to Bid” [translation], as well as subsequent revisions and a copy of Westcliff’s RFQ were filed with the Tribunal.

8. Subsection 96(1) of the Canadian International Trade Tribunal Rules ⁴ reads as follows:

A complaint shall be considered to have been filed

(a) on the day it was received by the Tribunal; or

(b) in the case of a complaint that does not comply with subsection 30.11(2) of the Act, on the day that the Tribunal receives the information that corrects the deficiencies in order that the complaint comply with that subsection.

9. In this case, the complaint is considered to have been filed on the date that the Tribunal received the required information to make the complaint compliant with subsection 30.11(2) of the CITT Act. The Tribunal is of the opinion that a “compliant” complaint was not filed until August 27, 2008.

10. Since a compliant complaint was not filed within the time limits set out in subsection 6(2) of the Regulations, in this case on August 25, 2008, and that none of the circumstances stipulated in subsection 6(3) apply, the complaint was filed late.

11. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.

DECISION

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

¹ . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].

² . S.O.R./93-602 [Regulations].

³ . See the Procurement Complaint Form filed by Westcliff, received at the Tribunal on August 25, 2008, an e-mail dated August 26, 2008, and a letter dated August 27, 2008.

⁴ . S.O.R./91-499