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. Moreover, 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 relates to a procurement by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of National Defence (DND) for the provision of automatic tempering valves.

3. Siva & Associates Inc. (Siva) alleges that the manufacturer is trying to control prices by not allowing it to buy the required products from other agents.

4. On February 3, 2009, PWGSC awarded the contract to Siva for the provision of the valves to DND. According to Siva, on February 26, 2009, it was contacted by a representative of RADA Mechanical Works who advised Siva that RADA Mechanical Works was the only authorized supplier of the valves.

5. According to the complaint, on March 9, 2009, Siva’s supplier informed it that the “subject order ha[d] been cancelled by Armstrong”. ³ On March 13, 2009, Siva requested that PWGSC look into the matter.

6. On March 20, 2009, PWGSC advised Siva that, on January 28, 2009, Siva confirmed its capability to supply the goods as described at the prices offered and subsequently was awarded the contract. PWGSC stated that the contract was awarded in good faith and that it had assumed that Siva could deliver the goods according to the terms and conditions of the contract. PWGSC also advised Siva that, because the contractual arrangements between Siva and its subcontractor and/or manufacturer were private matters and did not involve the Crown, it was impossible for PWGSC to intervene in the matter.

7. Based on the value of the contract awarded to Siva, the Tribunal is of the view that the procurement is subject to the Agreement on Internal Trade ⁴ and the North American Free Trade Agreement. ⁵ Article 514(2)(a) of the AIT provides that the procurement process begins after an entity has decided on its procurement requirement and continues through to the awarding of the contract. Article 1017(1)(a) of NAFTA provides that the procurement process begins after an entity has decided on its procurement requirement and continues through the contract award.

8. Subsection 30.11(1) of the CITT Act limits the Tribunal’s jurisdiction to “. . . any aspect of the procurement process . . .”, which, as shown in the paragraph above, encompasses all elements of the procurement cycle up to and including the contract award. Issues relating to the administration of the contract occur after contract award and are outside of the Tribunal’s jurisdiction.

9. The Tribunal is of the view that the issue in this case is a matter of contract administration and, therefore, beyond the Tribunal’s jurisdiction.

10. In light of the above, the Tribunal will not conduct an inquiry into the complaint.

DECISION

11. 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].

³ . E-mail from Siva to PWGSC dated March 13, 2009.

⁴ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].

⁵ . 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 (entered into force 1 January 1994) [NAFTA].