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. W0127-10ES31/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence for the provision of janitorial services at the Edmonton Garrison.

3. Bee-Clean Building Maintenance (Bee-Clean) alleged the following: (1) there was inadequate notice from PWGSC that Bee-Clean would not be awarded the contract; (2) PWGSC improperly awarded the contract to Abco Maintenance Systems Inc. (Abco); and (3) Abco does not have appropriate security clearances.

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 conducted 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 Chapter Kbis of the Canada-Chile Free Trade Agreement ⁶ or Chapter 14 of the Canada-Peru Free Trade Agreement ⁷ applies. In this case, all the trade agreements apply.

5. On April 22, 2010, PWGSC issued a Request for Proposal (RFP) for janitorial services at the Edmonton Garrison. On June 8, 2010, bids closed.

6. Clause 3, “Term of Contract”, of Part 7 of the RFP reads as follows:

The Work is to be performed during the period of 01 August, 2010 to 31 July, 2013.

7. According to Bee-Clean, on August 12, 2010, it received a letter dated August 9, 2010, from PWGSC informing it that it would not be awarded the contract.

8. Bee-Clean submitted that it has provided services to the Edmonton Garrison for the past five years. With respect to its allegation that there was inadequate notice from PWGSC that it would not be awarded the contract, Bee-Clean submitted that it is standard procedure to provide a contractor with 30 days’ notice in such circumstances. Bee-Clean contended that such a timeframe allows for the contractor to provide adequate notification to each of the employees affected. Bee-Clean submitted that it has numerous employees at the contract site that are long-term employees who require four weeks’ notice of termination of employment, which, given that it was only advised of the loss of the contract on August 12, 2010, it could not provide. Bee-Clean submitted that it expected that PWGSC would provide a further extension to its contract to allow for compliance with relevant labour laws.

9. The Tribunal understands that the new contract was to start effective August 1, 2010, however the preceding contract was not included with the complaint. The Tribunal is of the opinion that any required notification would be governed by the wording of the contract that existed between Bee-Clean and PWGSC and that such notification would be a matter of contract administration and therefore outside of the Tribunal’s jurisdiction.

10. Regarding the allegation that PWGSC improperly awarded the contract to Abco, Bee-Clean submitted that the evaluated price of Abco’s proposal would necessarily entail low pay rates and would likely result in improper subcontracting.

11. The Tribunal is of the view that Bee-Clean’s allegation is based solely on the price difference between Bee-Clean’s proposal and that of Abco. The Tribunal notes the price difference but finds that this fact alone fails to provide evidence of wrongdoing on the part of PWGSC. As such, the Tribunal finds that there is no reasonable indication that PWGSC violated the trade agreements with respect to this allegation.

12. Finally, with respect to Bee-Clean’s allegation that Abco did not have the required security clearances to be on Edmonton Garrison premises on August 11, 2010, the Tribunal is of the view that base security control is the responsibility of DND and, therefore, unrelated to the procurement process. In addition, the Tribunal finds that no evidence was presented that would indicate that Abco did not hold the security clearances required to be awarded the solicitation.

13. In light of the above, the Tribunal finds that the complaint does not disclose a reasonable indication that the procurement has not been conducted in accordance with the applicable trade agreements.

DECISION

14. 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 . 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).

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

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

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) Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.

⁷ . Free Trade Agreement between Canada and the Republic of Peru, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/peru-perou/chapter-chapitre-14.aspx> (entered into force 1 August 2009).