Canadian International Trade Tribunal Procurement Inquiry Regulations (SOR/93-602)

1 [Repealed, SOR/2017-181, s. 2]

Interpretation

2 In these Regulations,

Act

Act means the Canadian International Trade Tribunal Act; (Loi)

Agreement on Government Procurement

Agreement on Government Procurement means the Agreement on Government Procurement as found in Annex 4 of the World Trade Organization Agreement; (Accord sur les marchés publics)

Agreement on Internal Trade

Agreement on Internal Trade[Repealed, SOR/2017-144, s. 1]

Canada — Korea Agreement on the Procurement of Telecommunications Equipment

Canada — Korea Agreement on the Procurement of Telecommunications Equipment[Repealed, SOR/2005-207, s. 1]

CCOFTA

CCOFTA means the Free Trade Agreement between Canada and the Republic of Colombia, signed at Lima, Peru on November 21, 2008; (ALÉCCO)

CETA

CETA means the Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States, done at Brussels on October 30, 2016, including the provisions of that Agreement as incorporated by reference in the Agreement on Trade Continuity between Canada and the United Kingdom of Great Britain and Northern Ireland, done at Ottawa on December 9, 2020; (AÉCG)

CFTA

CFTA means the Canadian Free Trade Agreement, signed in 2017, as amended from time to time; (ALÉC)

Chapter Kbis of the CCFTA

Chapter Kbis of the CCFTA means the Agreement between the Government of Canada and the Government of the Republic of Chile to amend the Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, done at Hanoi on November 15, 2006, and referred to in Order in Council P.C. 2006-1301 of November 9, 2006; (chapitre Kbis de l’ALÉCC)

CPAFTA

CPAFTA means the Free Trade Agreement between Canada and the Republic of Panama, signed at Ottawa on May 14, 2010; (ALÉCPA)

CPFTA

CPFTA means the Free Trade Agreement between Canada and the Republic of Peru, signed at Lima on May 29, 2008; (ALÉCP)

CUFTA

CUFTA means the Canada–Ukraine Free Trade Agreement, done at Ottawa on September 22, 2023; (ALÉCU)

NAFTA

NAFTA[Repealed, SOR/2020-66, s. 1]

publication

publication[Repealed, SOR/95-300, s. 3]

TPP

TPP means the Trans-Pacific Partnership Agreement, done at Auckland, New Zealand on February 4, 2016, as incorporated by reference into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, done at Santiago, Chile on March 8, 2018; (PTP)

working day

working day means a day that is not a Saturday or a holiday. (jour ouvrable)

Designations

• 3 (1) For the purposes of the definition designated contract in section 30.1 of the 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 II of the Agreement on Government Procurement, in Article Kbis-01 of Chapter Kbis of the CCFTA, in Article 1401 of Chapter Fourteen of the CPFTA, in Article 1401 of Chapter Fourteen of the CCOFTA, in Article 16.02 of Chapter Sixteen of the CPAFTA, in Article 17.2 of Chapter Seventeen of the CHFTA, in Article 14.3 of Chapter Fourteen of the CKFTA, in Article 19.2 of Chapter Nineteen of CETA, in Article 504 of Chapter Five of the CFTA or in Article 15.2 of Chapter Fifteen of the TPP, that has been or is proposed to be awarded by a government institution, is a designated contract.

• (2) For the purposes of the definition government institution in section 30.1 of the Act, the following are designated as government institutions:

  • (a) the federal government entities set out under the heading “CANADA” in Annex 1 of the Agreement on Government Procurement, in the Schedule of Canada in Annex Kbis-01.1-1 of Chapter Kbis of the CCFTA, in the Schedule of Canada in Annex 1401.1-1 of Chapter Fourteen of the CPFTA, in the Schedule of Canada in Annex 1401-1 of Chapter Fourteen of the CCOFTA, in the Schedule of Canada in Annex 1 of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.1 of Chapter Seventeen of the CHFTA, in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA, in Annex 19-1 of Annex 19-A in Chapter Nineteen of CETA, in Annex 11-A.1 of the Market Access Schedule of Canada in Chapter Eleven of CUFTA or in Section A of the Schedule of Canada in Annex 15-A of Chapter Fifteen of the TPP or the federal government entities that are procuring entities as referred to in Article 504.2 of the CFTA;

  • (b) the federal government enterprises set out under the heading “CANADA” in Annex 3 of the Agreement on Government Procurement, in the Schedule of Canada in Annex Kbis-01.1-2 of Chapter Kbis of the CCFTA, in the Schedule of Canada in Annex 1401.1-2 of Chapter Fourteen of the CPFTA, in the Schedule of Canada in Annex 1401-2 of Chapter Fourteen of the CCOFTA, in the Schedule of Canada in Annex 2 of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.2 of Chapter Seventeen of the CHFTA, in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA, in Annex 11-A.2 of the Market Access Schedule of Canada in Chapter Eleven of CUFTA or in Section C of the Schedule of Canada in Annex 15-A of Chapter Fifteen of the TPP or the federal government enterprises referred to in Annex 19-3 of Annex 19-A in Chapter Nineteen of CETA or the federal government enterprises that are procuring entities as referred to in Article 504.2 of the CFTA; and

  • (c) if a procurement that results in the award of a designated contract by a government entity or enterprise referred to in paragraph (a) or (b) is conducted by the Department of Public Works and Government Services or its successor, that Department or its successor.

  • (d) [Repealed, SOR/2010-87, s. 1]

  • (e) [Repealed, SOR/2005-207, s. 2]

Application

4 These Regulations apply to complaints by potential suppliers concerning designated contracts.

Determination of the Value of a Contract

5 Where the Tribunal requires that the value of a designated contract be determined, the Tribunal shall deem that value to be the value of the designated contract that was established by the government institution

• (a) if a notice of proposed procurement was published in accordance with one or more of the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA, CUFTA and the TPP, at the time that the notice was published; or

• (b) where a notice of proposed procurement has not been published, at the time the solicitation documentation was made available to potential suppliers.

Time Limits for Filing a Complaint

• 6 (1) Subject to subsections (2) and (3), a potential supplier who files a complaint with the Tribunal in accordance with section 30.11 of the Act shall do so 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.

• (2) A potential supplier who has made an objection regarding a procurement relating to a designated contract 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.

• (3) A potential supplier who fails to file a complaint within the time limit set out in subsection (1) or (2) may file a complaint within the time limit set out in subsection (4), if the Tribunal determines, after considering all of the circumstances surrounding the procurement, including the good faith of the potential supplier, that

  • (a) the failure to file the complaint was attributable to a cause beyond the control of the potential supplier at the time the complaint should have been filed in order to meet the requirements of subsection (1) or (2); or

  • (b) the complaint concerns any aspect of the procurement process, of a systemic nature, relating to a designated contract, and compliance with one or more of the Agreement on Government Procurement, Chapter Kbis of the CCFTA, Chapter Fourteen of the CPFTA, Chapter Fourteen of the CCOFTA, Chapter Sixteen of the CPAFTA, Chapter Seventeen of the CHFTA, Chapter Fourteen of the CKFTA, Chapter Nineteen of CETA, Chapter Five of the CFTA, Chapter Eleven of CUFTA and Chapter Fifteen of the TPP.

• (4) A complaint under subsection (3) may not be filed later than 30 days after the day the basis of the complaint became known or reasonably should have become known to the potential supplier.

Conditions for Inquiry

• 7 (1) The Tribunal shall, within five working days after the day on which a complaint is filed, determine whether the following conditions are met in respect of the complaint:

  • (a) the complainant is a potential supplier;

  • (b) the complaint is in respect of a designated contract; and

  • (c) the information provided by the complainant, and any other information examined by the Tribunal in respect of the complaint, discloses a reasonable indication that the procurement has not been conducted in accordance with whichever of the Agreement on Government Procurement, Chapter Kbis of the CCFTA, Chapter Fourteen of the CPFTA, Chapter Fourteen of the CCOFTA, Chapter Sixteen of the CPAFTA, Chapter Seventeen of the CHFTA, Chapter Fourteen of the CKFTA, Chapter Nineteen of CETA, Chapter Five of the CFTA, Chapter Eleven of CUFTA or Chapter Fifteen of the TPP applies.

• (2) Where the Tribunal determines that the conditions set out in subsection (1) in respect of a complaint have been met and it decides to conduct an inquiry, the Tribunal shall publish a notice of the filing of the complaint in a circular or periodical designated by the Treasury Board.

Interim Reports

• 8 (1) Where the Tribunal produces or causes to be produced an interim report or similar document in respect of the complaint, it shall, before making any order, finding or recommendation in respect of the complaint, provide a copy of the interim report or similar document to the complainant, the relevant government institution and any other party that the Tribunal considers to be an interested party.

• (2) The complainant, the relevant government institution or any other party that the Tribunal considers to be an interested party may make representations to the Tribunal on any aspect of the report or similar document referred to in subsection (1) that is not confidential information.

Postponement of Award of Contract

• 9 (1) Where the Tribunal, in accordance with subsection 30.13(3) of the Act, orders the government institution to postpone the awarding of a designated contract, it shall, within five working days after the making of the order, notify the government institution of that order.

• (2) The Tribunal shall rescind an order made under subsection 30.13(3) of the Act, if, within seven working days after the day on which the order is made, the government institution provides a certificate referred to in subsection 30.13(4) of the Act in respect of the designated contract.

Dismissal of Complaints

• 10 (1) The Tribunal may, at any time, order the dismissal of a complaint where

  • (a) after taking into consideration the Act, these Regulations and, as applicable, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA, CUFTA or the TPP, the Tribunal determines that the complaint has no valid basis;

  • (b) the complaint is not in respect of a procurement by a government institution;

  • (c) the complaint is not filed within the time limits set out in these Regulations or in any rules made pursuant to subsection 39(1) of the Act; or

  • (d) the complainant has failed to file any information required by the Tribunal.

• (2) The Tribunal shall order the dismissal of a complaint in respect of which a national security exception set out in the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA, CUFTA or the TPP, as applicable, has been properly invoked by the relevant government institution.

• (3) The national security exception is properly invoked when an assistant deputy minister, or a person of equivalent rank, who is responsible for awarding the designated contract has signed a letter approving that the national security exception be invoked and the letter is dated prior to the day on which the designated contract is awarded.