Procurement

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TABLE OF CONTENTS

• 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

BY

ALLSEATING CORPORATION

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

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.

Hélène Nadeau
Hélène Nadeau
Secretary

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. 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. Allseating Corporation (Allseating) is an approved supplier for a range of office seating products under a National Master Standing Offer (NMSO) (E60PQ-030004/001/PQ) which was issued by the Department of Public Works and Government Services (PWGSC). The period of the NMSO began on June 1, 2004, and ends on August 5, 2009.

3. In the complaint, Allseating alleged that PWGSC, after initially agreeing to add the Presto and Inertia model rotary chairs to Allseating’s product list, unfairly withdrew its agreement.

4. Paragraph 7(1)(c) of the Regulations requires that the Tribunal determine whether the information provided by the complainant discloses a reasonable indication that the procurement has not been carried out in accordance with whichever of Chapter Ten of the North American Free Trade Agreement, ³ Chapter Five of the Agreement on Internal Trade, ⁴ the Agreement on Government Procurement ⁵ or Chapter Kbis of the Canada-Chile Free Trade Agreement ⁶ applies. In this case, all four trade agreements apply.

5. According to Allseating, section 17.4 of the Request for Standing Offer (RFSO), under which Allseating’s NMSO had been issued, allowed Allseating to replace, improve or add more office seating products to its existing standing offer, as long as certain conditions were met. One of those conditions required suppliers to provide test reports from accredited testing laboratories and to certify that the proposed new products met certain standards, specifically, Canadian General Standards Board (CGSB) requirements CAN/CGSB-44.232 and GPD-6.

6. Section 17.4 of the RFSO provides as follows:

17.4 If an Offeror wishes to offer more Office Seating products, whether to replace, improve or add an item to an existing Standing Offer, the offeror will be entitled to do so as long as the following conditions are met:

. . . 

17.4.4 Test Requirements

Applicable Test Reports in accordance with CAN/CGSB44.232 and GOD-6 must be submitted.

. . . 

Acceptable Test Facility

An independent testing laboratory and company owned laboratory are acceptable provided that the laboratory has been accredited by a nationally recognized body such as Standards Council of Canada, A2LA (American Association for Laboratory Accreditation) or is listed on the Canadian General Standards Board (CGSB) laboratory acceptance program.

7. Beginning in October 2008, Allseating took steps to add a number of new products to its standing offer, including the Presto and Inertia models of rotary chairs. According to the complaint, in the fall of 2008, Allseating provided a demonstration of the Presto and Inertia models for PWGSC, had the chairs certified by an independent laboratory and submitted the certification documentation to PWGSC for its review.

8. On December 1, 2008, PWGSC provided Allseating with a summary of its completed technical evaluation and identified items that were missing or items that required further clarification. Between December 1, 2008, and January 19, 2009, Allseating and PWGSC exchanged numerous e-mails, and Allseating followed up on those e-mails by providing PWGSC with the remaining information that it needed to complete its assessment.

9. In an e-mail dated January 19, 2009, PWGSC advised Allseating that it was going to add the Presto and Inertia models of rotary chairs to Allseating’s NMSO product list. Following receipt of that e-mail, Allseating continued to submit other required documentation regarding the two chairs to PWGSC and had new product brochures printed regarding the items to be added to the NMSO.

10. On February 2, 2009, PWGSC advised Allseating that it had recently been informed that the testing laboratory used by Allseating was no longer accredited and that it would be unable to accept the test reports that had originated from that laboratory for the Presto and Inertia models of rotary chairs.

11. On February 9, 2009, the laboratory in question sent an e-mail to Allseating, in which it attached a letter dated February 6, 2009, that explained the circumstances surrounding its accreditation status. In that letter, the laboratory explained that it was attempting to get a response from its accreditation body regarding the issue and that it had conducted its mechanical testing of the chairs in a manner that was consistent with the testing practices that it had used when it had been previously accredited. It also advised that it was accredited to ISO 17025 for fire testing of furniture by the Standards Council of Canada and approved by the CGSB.

12. Article 506(6) of the AIT provides that:

. . . The tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria.

13. Article 1013 of NAFTA provides that:

1. Where an entity provides tender documentation to suppliers, the document shall contain all information necessary to permit suppliers to submit responsive tenders . . . The documentation shall also include:

. . .

(h) the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders . . . .

14. Article XII of the AGP provides that:

. . .

2. Tender documentation provided to suppliers shall contain all information necessary to permit them to submit responsive tenders, including . . . 

(h) the criteria for awarding the contract, including any factors other than price that are to be considered in the evaluation of tenders . . . .

. . .

15. Article Kbis-06 of the CCFTA provides that:

. . . 

1. An entity shall provide interested suppliers tender documentation that includes all the information necessary to permit suppliers to prepare and submit responsive tenders. The documentation shall include all criteria that the entity will consider in awarding the contract, including all cost factors, technical requirements and the weights or, where appropriate, the relative values, that the entity will assign to these criteria in evaluating tenders.

. . .

16. Allseating argued that it was unfair for PWGSC to approve products and testing and then unilaterally rescind its approval. Allseating also argued that PWGSC’s failure to alert Allseating to any issues surrounding the accreditation of its testing laboratory caused Allseating to pursue unacceptable testing processes. Allseating also argued that its laboratory should be treated as accredited on the basis that it helped develop the applicable testing standard, that is, CAN/CGSB-44.232.

17. The Tribunal considers that, although the wording of section 17.4 of the RFSO might have benefitted from being more specific, PWGSC was not unreasonable in interpreting it to require that testing results be submitted by a laboratory that is accredited in relation to the testing that it has performed. The Tribunal therefore considers that there is not a reasonable indication that the procurement has not been carried out in accordance with the applicable trade agreements.

18. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint.

DECISION

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

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

² . S.O.R./93-602 [Regulations].

³ . North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA].

⁴ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].

⁵ . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].

⁶ . Free Trade Agreement Between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50 (entered into force 5 July 1997) [CCFTA]. Chapter Kbis, the chapter entitled “Government Procurement”, came into effect on September 5, 2008.