Procurement

Determinations

TANKATEK
File No. PR-2006-038

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TRANSLATION

BY FACSIMILE

January 11, 2007

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The Canadian International Trade Tribunal (the Tribunal) (Meriel V. M. Bradford, Presiding Member) has reviewed the complaint submitted on behalf of Tankatek, received on January 3, 2007, concerning Solicitation No. 316EJ.U6158-061702 from the Department of Public Works and Government Services (PWGSC) and has decided not to initiate an inquiry into the complaint.

Subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations(the Regulations) states that three conditions must be met before the Tribunal can inquire into a complaint. According to one of these conditions, a complaint must be in respect of a “designated contract” (i.e. a contract subject to the trade agreements).

According to the documents filed with your complaint, this request for a volume discount (RVD) is based on National Master Standing Offer No. E60EJ-03000A/XX/EJ. However, this procurement is subject to the Set-Aside Program for Aboriginal Business.

Article 1802 of the Agreement on Internal Trad(AIT) states the following:

This Agreement does not apply to any measure adopted or maintained with respect to Aboriginal peoples....

Furthermore, paragraph 1(d) of Annex 1001.2b of the North American Free Trade Agreement (NAFTA) excludes the “set-asides for small and minority businesses”. As well, paragraph 1(d) of the General Notes for Canada of the Agreement on Government Procurement (AGP) of the World Trade Organization also excludes the “set-asides for small and minority businesses”. Consequently, neither the AIT, nor NAFTA, nor the AGP applies to this procurement. Accordingly, the Tribunal does not have jurisdiction to inquire into the complaint.

However, if any of the trade agreements had applied to this procurement, under the Regulations, the Tribunal would have had to ensure that certain other conditions were met before accepting the complaint for inquiry. One of those conditions specifies that the Tribunal must determine whether the information provided by the complainant discloses a reasonable indication that the procurement has not been carried out in accordance with the trade agreements.

In its complaint, Tankatek claims that PWGSC did not properly test, in accordance with industry standards, the speakers proposed in response to the RVD. Based on the information on the record, the Tribunal is of the opinion that PWGSC proceeded with diligence and had the speakers tested in accordance with the documentation concerning the RVD and industry standards. According to rules 432.2 and 432.3 of the U.S. Federal Trade Commission, there is no requirement to test the unit at 10 percent THD (total harmonic distortion), and there is no evidence that PWGSC actually tested the speakers at 2 percent, as claimed by Tankatek. Furthermore, Tankatek did not provide any evidence of standards that stipulated otherwise. Thus, it appears that, even if any of the agreements could have, in fact, been applicable, there is no reasonable indication that the procurement was not carried out in accordance with the trade agreements.

In light of the foregoing, the Tribunal will not conduct an inquiry into this complaint and considers the matter closed.

Yours sincerely,

Hélène Nadeau
Secretary