AERO SUPPORT CANADA INC.

AERO SUPPORT CANADA INC.
File No. PR-2015-065

Decision made
Monday, March 14, 2016

Decision issued
Tuesday, March 15, 2016

Reasons issued
Tuesday, March 22, 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.).

BY

AERO SUPPORT CANADA INC.

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES           

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.

Stephen A. Leach
Stephen A. Leach
Presiding Member

The statement of reasons will be issued at a later date.

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. 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. This complaint relates to a Request for Proposal (RFP) (Solicitation No. W0125-15MEUF/A) for the dry lease of two aircraft for use at 8 Wing Trenton in support of light transport and pilot proficiency missions issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND).
  3. Aero Support Canada Inc.’s (Aero) grounds of complaint may be summarized as follows:
    • PWGSC did not follow the evaluation criteria specified in the solicitation in evaluating bids and awarding the contract;
    • the procurement process was biased in favour of the winning bidder; and
    • the contract was awarded to a non-compliant bidder.

ANALYSIS

  1. The Tribunal cannot initiate an inquiry unless all prescribed conditions in respect of the complaint are met. Among such conditions, the Tribunal must determine whether the complaint was filed within the prescribed deadlines. Section 6 of the Regulations provides as follows:

6 (1) Subject to subsections (2) and (3), a potential supplier who files a complaint with the Tribunal in accordance with section 30.11 of the Act shall do so 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.

(2) A potential supplier who has made an objection regarding a procurement relating to a designated contract 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.

  1. In other words, pursuant to the Regulations, a potential supplier has 10 working days after the day on which it first becomes aware, or reasonably should have become aware, of the basis of its complaint, to either make an objection to the relevant government institution, or file a complaint with the Tribunal. If the potential supplier chooses to object to the relevant government institution first, it then has 10 working days after the day on which it receives denial of relief by the government institution to file a complaint with the Tribunal.
  2. Furthermore, pursuant to subsection 7(1) of the Regulations, the Tribunal must determine whether the information provided by the complainant, and any other information examined by the Tribunal, discloses a reasonable indication that the procurement was not conducted in accordance with an applicable trade agreements set out in that subsection, in this case, the Agreement on Internal Trade.[3]
  3. The Tribunal has determined that the complaint does not meet these conditions.

Complaint that PWGSC Breached the Criteria Specified in the RFP is Late

  1. Aero’s first ground of complaint is that PWGSC did not evaluate the bids and award the contract in accordance with the criteria stated in the RFP. Aero takes issue with PWGSC’s use of point-rated criterion P8 to award 20 points to bids offering a retrofitted Garmin G1000 avionics suite. Aero argues that point‑rated criterion P8 reserved points exclusively for bids offering a factory-installed original equipment manufacturer avionics suite. Aero also alleges that, contrary to the criteria in the RFP, PWGSC did not inspect the winning bidder’s aircraft prior to contract award.
  2. Aero learned on November 13, 2015, that it had not won the contract and that the successful bidder was Avalerion Corp. (Avalerion). A debriefing was held on December 2, 2015.
  3. The information submitted with the complaint indicates that it is at the debriefing of December 2, 2015, that Aero learned that PWGSC had awarded points under preferred criterion P8 to bids offering a retrofitted suite and that it had not inspected Avalerion’s aircraft prior to contract award. This is clearly stated in the December 7, 2015, letter from Aero to PWGSC, in which Aero objects on the basis that PWGSC’s treatment of the retrofitted Garmin G1000 avionics suite and of the aircraft inspection breached the criteria in the RFP.[4]
  4. On this evidence, the Tribunal finds that Aero learned the basis of its complaint on December 2, 2015. Moreover, Aero’s December 7, 2015, objection to PWGSC was made less than 10 working days after December 2, 2015, and was thus timely, having regard to the prescribed deadlines.
  5. However, for the reasons that follow, the Tribunal finds that Aero failed to file a complaint with the Tribunal, as prescribed by subsection 6(2) of the Regulations, within 10 working days from learning of PWGSC’s denial of relief.
  6. PWGSC’s January 5, 2016, letter in response to Aero’s objection constituted a denial of relief of Aero’s objection. The contents of the letter were unequivocal. PWGSC confirmed that the Garmin G1000 retrofitted suite was awarded 20 points for preferred criterion P8 and informed Aero that “the evaluation of this criterion will stand”. PWGSC further stated its view that an inspection of the aircraft prior to contract award was not required by the RFP. Finally, PWGSC suggested that Aero consult the “Recourse Mechanisms” page on the buyandsell.gc.ca Web site if it had further concerns about the procurement process. The page in question outlines, inter alia, the complaints process under the CITT Act and the processes of the Office of the Procurement Ombudsman.
  7. Accordingly, pursuant to subsection 6(2) of the Regulations, Aero had 10 working days from January 5, 2016, to file a complaint with the Tribunal if it considered that there were outstanding issues with the way in which PWGSC interpreted and applied the criteria in the RFP. Aero did not file a complaint at such time; hence, its complaint regarding the application of the criteria in the RFP is time-barred.
  8. In this regard, while the evidence indicates that Aero instead sent a second letter to PWGSC, dated January 7, 2016, which raised further arguments in support of Aero’s position, and which received another negative response from PWGSC on February 15, 2016,[5] the fact that Aero decided to file a second objection on essentially the same issues does not affect the relevant dates for calculating the time limits set out in subsection 6(2) of the Regulations. Where the response to an objection is an unambiguous denial of relief, the time limit for filing a complaint is calculated from the date of that response, in this case, from January 5, 2016. In the absence of any indication that the matter may be reconsidered by PWGSC, the mere fact that the parties continued to communicate does not suspend the prescribed deadlines.[6]
  9. In any event, even if the Tribunal had found that Aero only got a definitive denial of relief on February 15, 2016, the complaint would still be late, as 10 working days from February 15, 2016, fell on February 29, 2016, and Aero’s complaint was filed on March 9, 2016.[7] Furthermore, while Aero alleges that it was incorrectly advised by PWGSC to file a complaint with the Office of the Procurement Ombudsman and not with the Tribunal, and argues that this should excuse its lateness, section 6 of the Regulations leaves the Tribunal no discretion to consider such arguments and extend the prescribed deadlines.[8]
  10. For these reasons, the Tribunal finds that the complaint on this ground is time-barred.

Complaint that the Procurement Process was Biased in Favour of the Winning Bidder is Late

  1. Aero’s second ground of complaint rests on a variety of alleged facts. Aero first alleges that a former DND official was improperly allowed to influence the procurement process whilst employed by the eventual successful bidder. The alleged facts relate to a cancelled 2014 solicitation for similar goods and services, in the context of which the DND official in question allegedly asked that the requirements be amended to accept a retrofitted G1000 cockpit. The RFP, as subsequently issued on February 25, 2015, and as further amended in March 2015, allowed for the provision of a retrofitted G1000 cockpit.
  2. Aero further alleges that its bid was initially recommended for contract award, but that this recommendation was overruled following a second evaluation inconsistent with the criteria in the RFP. Aero adds that the evaluation was protracted, suggesting “manipulation” by PWGSC.
  3. As mentioned earlier, on November 13, 2015, Aero learned that the contract had been awarded to Avalerion, i.e. the same company on whose behalf the former DND official had allegedly “lobbied”. Aero adds that senior PWGSC representatives involved in the procurement process were from Western Canada, as is the successful bidder.
  4. Furthermore, the complaint describes perceived concerns about the December 2, 2015, debriefing, for instance, Aero’s concern that answers provided by PWGSC were vague or lacking and that certain PWGSC or DND officials were not in attendance.”[9] To this are added the alleged problems described above with the point-rated criterion P8 and the inspection of aircraft.
  5. The various alleged facts underlying this ground of complaint came to Aero’s knowledge at different points of the procurement process; indeed, Aero became aware of some of these facts at the very outset of the process, when the RFP was published or amended.
  6. However, even considering the alleged facts as a whole, as contextual elements building towards Aero’s perception of bias, it is clear, based on the information in the complaint, including the information submitted by Aero on the Tribunal’s confidential record,[10] that Aero acquired knowledge of all the elements underlying its complaint on this ground at the latest at the debriefing of December 2, 2015.
  7. In accordance with section 6 of the Regulations, Aero thus had 10 working days from December 2, 2015, to either object to PWGSC or file a complaint to the Tribunal on the basis that the procurement process was biased or appeared to be biased. Aero did neither.
  8. Its December 7, 2015, objection to PWGSC included no mention of its concerns about bias and, while its January 7, 2016, letter to PWGSC hints at such concerns, this objection was made well past the 10 working day deadline prescribed by the Regulations. Furthermore, a complaint with the Tribunal on this ground was only filed on March 9, 2016.
  9. Accordingly, the complaint on this ground is time-barred.

Complaint that the Contract was Awarded to a Non-compliant Bidder is Late and/or Speculative

  1. Aero’s concerns in this regard appear to be based in part on the fact that there was no aircraft inspection before the contract was awarded to Avalerion. Aero also alleges that the winning bid may not be inclusive of all costs, as required by the RFP, and may not have substantiated compliance with the criteria in the RFP.
  2. As explained above, it is too late for Aero to challenge PWGSC’s interpretation that the criteria in the RFP did not premise the award of the contract on a successful inspection of the winning bidder’s aircraft. As such, Aero cannot question the compliance of the winning bid with the criteria in the RFP on the same basis.[11]
  3. As for the remaining allegations that the winning bid lacked substantiation or failed to include all required costs, on the basis of the information included in the complaint, the Tribunal doubts that a complaint on this ground is timely. In any event, such allegations appear to be entirely speculative. A ground of complaint must have some evidentiary basis to suggest a reasonable indication, as prescribed by subsection 7(1) of the Regulations, that there was a breach of a relevant trade agreement.[12] Aero has provided no evidence to substantiate these claims.

DECISION

  1. 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, c. 47 (4th Supp.) [CITT Act].

[2].      S.O.R./93-602 [Regulations].

[3].      18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/agreement-on-internal-trade/>.

[4].      Complaint, Binder 1.

[5].      There were also some further, more informal e-mails between the parties.

[6].      Dataintro Software Limited (1 December 2010), PR-2010-077 (CITT) at para. 32; Groupe-conseil INTERALIA S.E.N.C. (9 October 2009), PR-2009-052 (CITT) at para. 15; IT/NET Ottawa Inc. (6 July 2009), PR-2009-023 (CITT) at para. 11.

[7].      While the Tribunal initially received Aero’s complaint on March 3, 2016, the Tribunal determined that information required to determine whether to initiate an inquiry was missing. Following an invitation from the Tribunal, pursuant to subsection 30.12(2) of the CITT Act, Aero provided additional information on March 9, 2016. Consequently, in accordance with paragraph 96(1)(b) of the Canadian International Trade Tribunal Rules and subsection 30.11(2) of the CITT Act, the Tribunal considered the complaint to have been filed on March 9, 2016.

[8].      The Typhon Group (Barrie) Limited (28 March 2011), PR-2010-092 (CITT) at paras. 11-12.

[9].      Complaint form at 8.

[10].    Aero’s letter to the Tribunal dated March 9, 2016.

[11].    Furthermore, any question as to whether the contractor’s aircraft is deemed satisfactory further to an inspection after contract award is an issue of contract administration, over which the Tribunal does not have jurisdiction.

[12].    Furthermore, the purpose of a complaint before the Tribunal is not to allow complainants to engage in a “fishing expedition” to find evidence to use in a complaint. See, for example, Toromont Cat (22 January 2016), PR‑2015‑054 (CITT) at para. 20; Flag Connection Inc. (30 July 2013), PR-2013-010 (CITT) at para. 23.

Case Number(s)

PR-2015-065

Attachment(s)

pr2p065_e.pdf (76.32 KB)

Status

Publication Date

Tuesday, May 17, 2016

Modification Date

Tuesday, May 17, 2016