Procurement

• DECISION
• STATEMENT OF REASONS
• • DECISION

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IN THE MATTER OF a complaint filed pursuant to 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.

Dominique Laporte
Dominique Laporte
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 relates to a procurement (Solicitation No. 201000137) by the Royal Canadian Mounted Police (RCMP) for the provision of food catering services.

3. Corporate Special Events Catering Inc., d.b.a. BBQ Catering (BBQ Catering) alleges that the RCMP improperly declared its bid non-responsive on technical grounds.

4. Subsection 30.11(1) of the CITT Act provides that “. . . a potential supplier may file a complaint with 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.” Section 30.1 of the CITT Act defines the term “designated contract” as “a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution and that is designated or of a class of contracts designated by the regulations.”

5. Subsection 3(1) of the Regulations designates, for the purposes of the definition of “designated contract” in section 30.1 of the CITT Act, “. . . any contract or class of contract concerning a procurement of goods or services or any combination of goods or services, as described in Article 1001 of [the North American Free Trade Agreement],^[3] in Article 502 of the Agreement on Internal Trade,^[4] in Article I of the Agreement on Government Procurement,^[5] in Article Kbis-01 of Chapter Kbis of the [Canada-Chile Free Trade Agreement]^[6] or in Article 1401 of Chapter Fourteen of the [Canada-Peru Free Trade Agreement],^[7] that has been or is proposed to be awarded by a government institution . . . .” However, Article XXIII(1) of the AGP, Article 1018(1) of NAFTA, Article 1804 of the AIT, Article Kbis-16 of the CCFTA and Article 1402 of the CPFTA allow exceptions to the provisions of the respective trade agreements where national security is involved.

6. In this regard, Article 2 of Part 1 of the Request for Proposal, entitled “Summary”, reads as follows:

This procurement is subject to the National Security Exception.

In this case the requirement is excluded from the World Trade Organization – Agreement on Government Procurement (WTO-AGP) (Article XXIII[(1)]), the North American Free Trade Agreement (NAFTA) (Article 1018(1)), and the Agreement on Internal Trade (AIT) (Article 1804).

7. The Tribunal therefore finds, as it did in similar previous cases, ⁸ that the procurement at issue, being subject to a national security exception, is exempt from the provisions of the relevant trade agreements. That being the case, the Tribunal finds that the complaint does not relate to a “designated contract”, as is required by subsection 30.11(1) of the CITT Act. Accordingly, the Tribunal finds that it does not have jurisdiction to conduct an inquiry into the matter.

8. Therefore, the Tribunal will not conduct an inquiry and considers the matter closed.

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].

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) [NAFTA].

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

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

⁶ . Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50 (entered into force 5 July 1997) [CCFTA]. Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.

⁷ . Free Trade Agreement between Canada and the Republic of Peru, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/peru-perou/chapter-chapitre-14.aspx> (entered into force 1 August 2009) [CPFTA].

⁸ . Re Complaint Filed by Integrys Ltd. (5 March 2010), PR-2009-103 (CITT); Re Complaint Filed by International Safety Research Inc. (14 June 2006), PR-2006-007 (CITT).