Procurement

Determinations

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INTERNATIONAL SAFETY RESEARCH INC.
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2006-007

Order and reasons issued
Wednesday, June 14, 2006

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TABLE OF CONTENTS

• ORDER OF THE TRIBUNAL
• STATEMENT OF REASONS
• • COMPLAINT
  • TRIBUNAL’S ANALYSIS

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IN THE MATTER OF a complaint filed by International Safety Research Inc., under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

AND FURTHER TO a decision to conduct an inquiry into the complaint under subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN
INTERNATIONAL SAFETY RESEARCH INC.	Complainant
AND
THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES	Government Institution

ORDER OF THE TRIBUNAL

The Canadian International Trade Tribunal finds that it does not have jurisdiction to continue its inquiry into the complaint. Consequently, the complaint is hereby dismissed.

James A. Ogilvy
James A. Ogilvy
Presiding Member

Zdenek Kvarda
Zdenek Kvarda
Member

Meriel V. M. Bradford
Meriel V. M. Bradford
Member

Hélène Nadeau
Hélène Nadeau
Secretary

Tribunal Members:	James A. Ogilvy, Presiding Member
	Zdenek Kvarda, Member
	Meriel V. M. Bradford, Member
Research Director:	Randolph W. Heggart
Senior Investigation Officer:	Cathy Turner
Counsel for the Tribunal:	Nick Covelli
	Ian Bradley
Complainant:	International Safety Research Inc.
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Ian McLeod
	Christianne M. Laizner
	Susan D. Clarke

Please address all communications to:

The Secretary
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
15th Floor
Ottawa, Ontario
K1A 0G7

Telephone: (613) 993-3595
Fax: (613) 990-2439
E-mail: secretary@citt-tcce.gc.ca

STATEMENT OF REASONS

COMPLAINT

1. On April 28, 2006, upon providing additional information requested by the Canadian International Trade Tribunal (the Tribunal), International Safety Research Inc. (ISR) filed a complaint with the Tribunal under subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ concerning a procurement (Solicitation No. 0D160-064128/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Public Safety and Emergency Preparedness for the provision of professional services for the development of the National Emergency Response System and associated plans and procedures.

2. ISR alleged that PWGSC incorrectly declared its proposal non-compliant. It requested, as a remedy, that the Tribunal recommend that PWGSC cancel the contract awarded to The Zeta Group Inc. and award the contract to ISR. In the alternative, it requested that the Tribunal recommend that PWGSC compensate ISR for its expenses, lost profit and loss of related income, which it estimated at $170,000 in total.

3. On May 1, 2006, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations. ²

4. On May 4, 2006, PWGSC filed a motion with the Tribunal requesting that the complaint be dismissed on the basis that the Tribunal does not have jurisdiction to conduct an inquiry into the complaint, as the Government of Canada had invoked the national security exception provided for in the applicable trade agreements. On May 12, 2006, ISR submitted its comments on the motion. On May 16, 2006, PWGSC filed its reply to the comments.

TRIBUNAL’S ANALYSIS

5. Article 1018(1) of the North American Free Trade Agreement, ³ Article 1804 of the Agreement on Internal Trade ⁴ and Article XXIII(1) of the Agreement on Government Procurement ⁵ allow exceptions to the provisions of these trade agreements where national security is involved.

6. Where the Government of Canada has determined that a particular procurement relates to national security and has invoked a national security exception before soliciting bids, the Tribunal does not have jurisdiction to deal with the procurement. However, as the bid challenge authority under the trade agreements, the Tribunal can satisfy itself that a national security exception has actually and properly been invoked.

7. The Tribunal notes that the solicitation document and the complaint itself do not indicate that the national security exception was officially invoked before the solicitation. However, the evidence submitted by PWGSC in support of its motion indicates that the Acting Assistant Deputy Minister (A/ADM), Acquisitions Branch of PWGSC, invoked the national security exception on or around November 9, 2005, on the basis of the authority delegated by the Government of Canada to the Minister of Public Works and Government Services under section 6 of the Department of Public Works and Government Services Act, ⁶ in conjunction with paragraph 24(2)(d) of the Interpretation Act. ⁷ In the Tribunal’s view, the evidence establishes that the A/ADM, Acquisitions Branch, serves in a capacity that is appropriate to invoking the national security exception of the trade agreements.

8. The evidence further indicates that the Notice of Proposed Procurement for this solicitation was published on February 3, 2006, and stated that the procurement was excluded from the trade agreements on the basis of national security. Thus, the Tribunal is satisfied that the national security exception was invoked appropriately and in a timely manner by the Government of Canada.

9. On this basis, the Tribunal is of the view that it does not have jurisdiction to continue its inquiry into the complaint. Consequently, the complaint is dismissed.

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¹ . R.S.C. 1985 (4^th Supp.), c. 47 [CITT Act].

² . S.O.R./93-602.

³ . 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).

⁴ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.intrasec.mb.ca/index_en/ait.htm>.

⁵ . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm>.

⁶ . S.C. 1996, c. 16.

⁷ . R.S.C. 1985, c. I-21.