Procurement

• DECISION
• STATEMENT OF REASONS
• • DECISION

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IN THE MATTER OF a complaint filed under 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.

Hélène Nadeau
Hélène Nadeau
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 in issue relates to a procurement by the Department of Public Works and Government Services (PWGSC) on behalf of the Canadian Wildlife Service (CWS) for leasing of office space in Harrington Harbour, Quebec. Mr. David Anderson alleged that PWGSC awarded the contract to a CWS employee, which gave rise to an apparent conflict of interest.

3. Subsection 6(1) of the Regulations provides that a complaint shall be filed with the Tribunal “. . . 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.” Subsection 6(2) provides that a potential supplier that has made an objection 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.”

4. In other words, a complainant has 10 working days from the date on which it first becomes aware or reasonably should have become aware of its ground of complaint to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.

5. The due date for the receipt of bids was November 27, 2008. Mr. Anderson and another bidder submitted proposals. On December 19, 2008, PWGSC provided Mr. Anderson with a copy of four pages from the other bidder’s winning proposal, which included, among other information, the identity of the winning bidder and its pricing structure. According to the complaint, on December 19, 2008, Mr. Anderson objected about the contract award to PWGSC, complaining of favouritism toward the other bidder and non-compliance of the other bidder’s proposal. On December 31, 2008, PWGSC rejected Mr. Anderson’s request for all documentation related to the other bidder’s proposal. On January 29, 2009, Mr. Anderson filed his complaint with the Tribunal. In a letter dated February 2, 2009, the Tribunal, pursuant to subsection 30.12(2) of the CITT Act, notified Mr. Anderson that the Tribunal required further information before it could proceed with deciding whether or not to conduct an inquiry into the complaint in accordance with subsection 30.23(1). On February 9, 2009, Mr. Anderson filed additional information.

6. Based on the evidence submitted in the complaint, the Tribunal is of the view that the basis of the complaint became known, or reasonably should have become known, to Mr. Anderson on December 19, 2008, when PWGSC provided Mr. Anderson with the identity of the winning bidder. Mr. Anderson did not provide the Tribunal with any indication of the content of his objection of December 19, 2008. However, this objection apparently did not cover the grounds of the complaint to the Tribunal, since Mr. Anderson indicated that, on December 31, 2008, PWGSC denied this objection by rejecting the “request for all documentation”.

7. Mr. Anderson, therefore, had 10 working days from December 19, 2008, i.e. until January 7, 2009, to file his complaint with the Tribunal. As the complaint was not filed until some time after this date, the Tribunal considers it to have been filed outside the prescribed time frame.

8. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint.

DECISION

9. 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].