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

Conditions for Inquiry

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

  • (a) the complainant is a potential supplier;

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

  • (c) the procurement process has not been conducted in accordance with

    • (i) if the complaint is made by a potential supplier from Canada, the provisions in respect of procurement of a trade agreement that applies in respect of the designated contract, and

    • (ii) if the complaint is made by a potential supplier from any other country or customs territory, the provisions in respect of procurement of any trade agreement to which that country or customs territory is a party that applies in respect of the designated contract; and

  • (d) if the solicitation restricts the origin of goods or services to be supplied, the potential supplier, had it been awarded the contract, would have supplied only goods and services originating in one or more countries or customs territories that are parties to trade agreements that apply in respect of the designated contract.

• (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 shall dismiss a complaint if,

  • (a) after taking into consideration the Act, these Regulations and the provisions in respect of procurement of any applicable trade agreement, the Tribunal determines that the complaint has no valid basis;

  • (b) the Tribunal determines that one of the conditions set out in paragraphs 7(1)(a) to (d) has not been met;

  • (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 applicable trade agreement 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.

Determination

11 If the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement process was conducted in accordance with the provisions in respect of procurement set out in whichever trade agreement applies.

Issuance of Findings and Recommendations

• 11.1 (1) The Tribunal is not permitted to award the costs incurred by a complainant in preparing their response to a solicitation unless the response was compliant. The award shall not exceed 2% of the complainant’s bid price.

• (2) If the Tribunal awards the costs incurred by the complainant in preparing their response to a solicitation, it is not permitted to also recommend that the complainant’s bid be re-evaluated, that a designated contract be awarded to the complainant or that the complainant be compensated.

• (3) The Tribunal shall limit any recommendation of compensation under subsection 30.15(2) of the Act to one of the following:

  • (a) if the Tribunal determines that the designated contract should have been awarded to the complainant, the complainant’s lost profits on the designated contract, which shall not exceed 10% of the complainant’s bid price; and

  • (b) if it is not possible to determine whether the designated contract should have been awarded to the complainant, compensation for the lost opportunity to profit on the designated contract, which shall not exceed 10% of the bid price of the awarded contract divided by the number of potential suppliers for the designated contract.

• (4) For the purposes of this section, the bid price for a designated contract does not include the value of any options or extensions of the designated contract.

11.2 If the Tribunal recommends that the designated contract be awarded to the complainant and that contract has already been awarded to another person, it shall also recommend, in the alternative, that the government institution pay compensation to the complainant.

• 11.3 (1) In the absence of exceptional circumstances, the Tribunal shall award costs of and incidental to the proceedings to

  • (a) the complainant if the complaint is entirely valid; or

  • (b) the government institution if no part of the complaint is valid.

• (2) If the complaint is valid in part, the Tribunal may exercise its discretion to divide the costs of and incidental to the proceedings among the parties.

• (3) For the purposes of subsection (1), exceptional circumstances include those in which

  • (a) a party does not accept an offer to settle, and the Tribunal’s decision is not more favourable to the party than the offer; and

  • (b) a party that otherwise would be entitled to costs of and incidental to the proceedings acted in bad faith.

12 The Tribunal shall issue its findings and recommendations in respect of a complaint to the complainant, the relevant government institution and any other party that the Tribunal considers to be an interested party

• (a) subject to paragraphs (b) and (c), within 90 days after the filing of the complaint;

• (b) where, under any rules made pursuant to subsection 39(1) of the Act, the Tribunal grants a request for an express option, within 45 days after it grants that request; or

• (c) where, under any rules made pursuant to subsection 39(1) of the Act, the Tribunal authorizes an extension of time, within 135 days after the filing of the complaint.

13 Where the Tribunal makes recommendations to a government institution under section 30.15 of the Act, the government institution shall:

• (a) advise the Tribunal in writing, within 20 days after receipt of the recommendations, of the extent to which it intends to implement the recommendations and, if it does not intend to implement them fully, the reasons for not doing so; and

• (b) where the government institution has advised the Tribunal that it intends to implement the recommendations in whole or in part, advise the Tribunal in writing, within 60 days after receipt of the recommendations, of the extent to which it has then implemented the recommendations.