LDC Solutions Inc v Natural Resources Canada, CITT PR-2020-001

Request for Tribunal inquiry into complaint denied. The complainant, an unsuccessful Indigenous bidder, failed to meet the necessary requirements for the Tribunal to launch an inquiry.

Indigenous Law Centre CaseWatch Blog

This complaint pertains to a request for proposal [“RFP”] issued by Natural Resources Canada [“NRC”] for the provision of subject matter expects for the Indigenous Forestry Initiatives Expert Review Panel. The complainant, LDC Solutions Inc. [“LDC)”] was an unsuccessful bidder, and alleged that NRC failed both in the issuance of the RFP, and its process in evaluating bidders’ and their respective bids.

Following the initial issuance of the RFP, the complainant wrote to NRC to inquire why the solicitation was not issued as an Aboriginal set-aside (which designates it exclusively to Aboriginal bidders) and if they would consider re-issuing. The Respondent replied that while a mandatory Aboriginal set-aside was considered, it did not meet the criteria. In recognizing Indigenous bidders, however, it would allot extra points to bidders registered with the Indigenous Business Directory, and amended the RFP.

Shortly thereafter, NRC informed LDC that its bid was unsuccessful, and that the contract had been awarded to another company. LDC’s bid had met all the requirements, but did not achieve the highest score in comparison to the winning bidder’s technical and financial scores that were provided for comparison. LDC inquired to NRC that the winning bidder could not be located on the Indigenous Business Directory, and that their winning score must have included the additional points for being an Indigenous bidder. NRC contended that the winning bidder was not awarded the extra points, but an internal investigation would be conducted, and a re-evaluation of the bids would take place.

As a part of the re-evaluation, NRC raised issues that the financial proposal did not account for the cost of providing an Honorarium for Elders who would perform opening and closing ceremonies of meetings, and the lack of clarity in the Financial Proposal Form and Statement of Work. Upon conclusion of the re-evaluation, LDC was notified that their bid had been disqualified, and that a contract had been awarded to Stratos in Joint Venture with First Peoples Group. LDC filed a complaint with the Tribunal in regards to NRC’s decision, and also requested that the Tribunal recommend that a new solicitation be issued as a mandatory Aboriginal set-aside, that the NRC should undergo Indigenous Cultural Awareness training, and that the winning bidder should be barred from competing in the new solicitation process for misrepresenting its Indigenous status.

The trade agreements require that government institutions disclose to unsuccessful suppliers that request it the reasons why their tenders were not selected, as well as information regarding the selected tender. The Tribunal found that NRC did not breach these obligations. It is not clear why LDC considers that its request for a debriefing meeting was refused. The debriefing did not address any issues with LDC’s bid, but was limited to responding to LDC’s questions regarding the winning bidder. LDC could have posed additional questions by email to NRC regarding its own bid, but according to the evidence on file, it did not do so. As a result, the Tribunal finds that NRC provided all the information that was requested by LDC and did not breach the trade agreement requirements in regard to debriefings. Pursuant to the Canadian International Trade Tribunal Act, the Tribunal has decided not to conduct an inquiry into the complaint.

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