Procurement

• DECISION
• STATEMENT OF REASONS
• • DECISION

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

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.

Dominique Laporte
Dominique Laporte
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. The complaint relates to a procurement (Solicitation No. F7059-100026/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Fisheries and Oceans/Canadian Coast Guard for the provision of two rigid hull inflatable boats with trailers.

3. Titan Inflatables Ltd. (Titan) alleges that the winning bidder, Kanter Marine Inc. (Kanter), did not meet one or more of the mandatory requirements as set out in the Request for Proposal (RFP).

4. 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.”

5. Subsection 6(2) states that “[a] potential supplier who 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” [emphasis added].

6. In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become aware, of its ground of 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.

7. The bidding period for the solicitation closed on June 9, 2010. On June 18, 2010, PWGSC sent an e-mail to Titan advising it that, although its proposal met all the mandatory requirements of the RFP, the contract had been awarded to Kanter, as the lowest-priced bidder. On July 9, 2010, Titan sent an e-mail to PWGSC requesting a debriefing. In its July 14, 2010, e-mail response to the request, PWGSC provided Titan with the names of the members of the evaluation team, the basis of selection and information relating to Titan’s proposal. On that same date, Titan objected, claiming that the winning company was unable to meet the requirements of Part 3, Section III, article 1.5, “Vessel Construction Experience”, of the RFP. On July 15, 2010, PWGSC advised Titan by e-mail that Kanter had provided the necessary evidence to demonstrate that its proposal met the vessel construction experience requirement. On July 26, 2010, Titan filed its complaint with the Tribunal.

8. Part 3, Section III, article 1.5, “Vessel Construction Experience”, states as follows: “The Bidder shall provide objective evidence that it has a proven capability in the construction of vessels of the size, type and complexity which is the subject of this RFP, by providing a detailed list of such boats built within the last five (5) years.”

9. Given Titan’s claim that Kanter could not have met the vessel construction experience requirement of the solicitation because “. . . this vessel is a new design by Titan Inflatables . . .”, the Tribunal is of the view that Titan’s basis of complaint became known or reasonably should have become known to Titan on June 18, 2010, when it was advised that a contract had been awarded to Kanter.

10. That being the case, the Tribunal finds that Titan’s July 14, 2010, objection was filed with PWGSC outside the time limit prescribed by the Regulations. Therefore, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.

DECISION

11. 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].