Subsection 30.11(1) of the Canadian International Trade Tribunal Act provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations, 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.
The complaint relates to a procurement (Solicitation No. E60ZQ-140001/B) by the Department of Public Works and Government Services (PWGSC) for the provision of ergonomic assessment services at various locations across Canada.
Cornerstone Occupational Therapy Consultants (Cornerstone) alleges that the solicitation requirements unfairly favoured large national companies over small businesses, as they were based on quantity, rather than quality, of work.
As indicated above, subsection 30.11(1) of the CITT Act provides that, “[s]ubject to the regulations, a potential supplier may file a complaint with 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.”
The Tribunal must first examine whether there is a “designated contract” as defined in section 30.1 of the CITT Act. This section defines such a contract as “. . . a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution and that is designated or of a class of contracts designated by the regulations.”
For the purposes of the definition of “designated contract” in section 30.1 of the CITT Act, the Regulations designate any contract or class of contract concerning a procurement of goods or services or any combination of goods or services by a government institution, as described in Article 1001 of the North American Free Trade Agreement, Article 502 of the Agreement on Internal Trade, Article I of the Agreement on Government Procurement, Article Kbis-01 of Chapter Kbis of the Canada-Chile Free Trade Agreement, Chapter 14 of the Canada-Peru Free Trade Agreement, Article 1401 of Chapter Fourteen of the Canada-Colombia Free Trade Agreement, Article 16.02 of Chapter Sixteen of the Canada-Panama Free Trade Agreement, Article 17.2 of Chapter Seventeen of the Canada-Honduras Free Trade Agreement or Article 14.3 of Chapter Fourteen of the Canada-Korea Free Trade Agreement.
The Tribunal notes that the procurement at issue is for the provision of ergonomic assessment services and that, according to the Notice of Proposed Procurement, the services are classified as “G009P Ergonomic Services”. This indicates that ergonomic services are a subset of G009 “Other Health Services”, which falls in turn under Category G, titled “Health and Social Services”, of the Common Classification System. Thus, ergonomic assessment services are a subset of the broader category of health and social services. As such, the Tribunal considers that this procurement is for health and social services.
Annex 1001.1b-2 of NAFTA, Annex Kbis-01.1-4 of the CCFTA, Annex 1401.1-4 of the CPFTA, Annex 1401-4 of the CCOFTA, Annex 5 to Chapter Sixteen of the CPAFTA and Annex 17.4 of the CHFTA, which use the Common Classification System for classifying services, exclude all classes of services under Category G, “Health and Social Services”, from their respective coverage.
Paragraph 1(e) of Annex 502.1B of the AIT specifically excludes coverage for health services and social services.
Annex 4 of Canada’s Appendix 1 to the AGP and Annex 14-C of the CKFTA, which provide a listing of services that Canada offers for coverage, do not include any health or social services.
The Tribunal finds that health and social services are not subject to any of the trade agreements mentioned above. For this reason, the solicitation in question is not for the procurement of goods or services covered in these trade agreements. Therefore, the Tribunal lacks the jurisdiction to initiate an inquiry into the complaint, since it concerns a procurement process that does not relate to a “designated contract”, as this term is defined above.
The Tribunal also notes that the stated amount for this procurement is $6,000. That amount is under the thresholds of all the trade agreements listed above. In certain circumstances, the Office of the Procurement Ombudsman (OPO) can provide recourse to bidders under those thresholds. The Tribunal encourages Cornerstone to contact the OPO at 1-866-734-5169 to explore its options in that regard.
. 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, online: Department of Foreign Affairs, Trade and Development <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-... (entered into force 1 January 1994) [NAFTA].
. Revised Agreement on Government Procurement, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/rev-gpr-94_01_e.htm> (entered into force 6 April 2014) [AGP].
. Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50, online: Department of Foreign Affairs, Trade and Development <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/chile-chili/menu.aspx?lang=en> (entered into force 5 July 1997) [CCFTA]. Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.