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 that the Tribunal 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.
This is a complaint filed by Global Upholstery Co. Inc. (Global), relating to a call-up against a Supply Arrangement (SA) (Solicitation No. CIC-144808) issued by Citizenship and Immigration Canada (CIC) for the provision of adjustable keyboard trays. Global alleged that the product proposed in its bid was incorrectly deemed non-compliant.
On November 25, 2015, CIC issued a call-up for bids from SA holders, for the provision of adjustable keyboard trays. The closing date of the solicitation was December 21, 2015. Adjustable products are listed within Category 4 of the SA, with fixed-height products listed within Category 2.
On December 21, 2015, Global submitted a proposal with regard to the SA. Global proposed the supply of keyboard trays of a model approved for inclusion within Category 2 of the SA. The proposed keyboard trays were adjustable in height, even though that model had not been approved for inclusion within Category 4.
On January 21, 2016, CIC awarded the intended contract to another bidder, and informed Global its proposed product was deemed non-compliant as it was not an approved model pursuant to Category 4 of the SA.
On January 21, 2016, Global objected by telephone to the results of the evaluation of its proposal by CIC, asserting that its proposed product met every requirement of the solicitation.
On January 29, 2016, CIC wrote to Global, indicating that an update would be available by close of business on February 1, 2016.
On February 4, 2016, with CIC’s promised update still pending, Global filed this complaint with the Tribunal. However, the filing did not meet the requirements of subsection 30.11(2) of the CITT Act. Thus, on February 5, 2016, the Tribunal requested the provision of further information by Global.
On February 11, 2016, Global filed further information pursuant to the Tribunal’s request. However, the Tribunal assessed that the filing continued to fall short of the requirements of subsection 30.11(2) of the CITT Act, and thus on February 12, 2016, the Tribunal issued Global a second request for further information.
On February 15, 2016, Global indicated to the Tribunal that CIC’s promised update was still pending, and on February 17, 2016, Global filed further information with the Tribunal, in the form of brief descriptions of phone conversations and excerpts of previously unsubmitted emails between it and CIC. The email excerpts had been copied and pasted on to a single page, rather than printed out and submitted in their entirety. In one instance, an email message appears to have a date of January 25, 2016, at the top of its excerpt, and January 29, 2016, at the bottom. Further, email messages were indicated as sent “around 2pm” and “around 3pm”.
In light of these facts, the Tribunal considers the complaint filed on February 17, 2016, as the requirements of subsection 30.11(2) of the CITT Act were perfunctorily met on that day. However, the Tribunal notes that, for the purposes of an inquiry, it would be unable to rely upon some of the information submitted by Global.
Pursuant to sections 6 and 7 of the Regulations, upon receipt of a complaint which complies with subsection 30.11(2) of the CITT Act, the Tribunal must decide whether a number of conditions have been met before an inquiry can be conducted.
The relevant condition in the present circumstance is whether the complaint has been filed within the time limits prescribed by section 6 of the Regulations, which stipulates in part that a complaint must be filed with the Tribunal within 10 working days of actual or constructive knowledge of denial of relief from a government institution, in the event a complainant made an objection to that institution within 10 working days of becoming aware of the basis of its complaint.
In the present instance, the Tribunal notes that Global made an objection to CIC on January 21, 2016, the day it became aware of the basis of its complaint.
However, while CIC indicated that an update would be available by close of business on February 1, 2016, that update is yet to be provided and Global is yet to receive either a conclusive response to its concerns, or denial of relief. Thus, the Tribunal concludes that the complaint is premature at this time.
In light of the foregoing, the Tribunal will not conduct an inquiry into this complaint. However, in the event Global does not receive from CIC, within 40 days of the issuance of these reasons, a response that conclusively addresses its concerns or a denial of relief, the Tribunal will construe CIC’s silence as constructive denial of relief, and Global may then file a new complaint with the Tribunal.
Should Global decide to file a new complaint, it must do so within the time limits prescribed by subsection 6(2) of the Regulations, while ensuring that its filing substantively meets the requirements of subsection 30.11(2) of the CITT Act. The Tribunal will not consider that excerpts, or pasted copies of documents, suffice for the purposes of the above legislative provisions in instances where complete originals are available for submission subsequent to printing or photocopying. Accordingly, Global may not request that this type of documentation already filed with the Tribunal be joined to any new complaint.