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1 [Repealed, SOR/2017-181, s. 2]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Agreement on Internal Trade[Repealed, SOR/2017-144, s. 1]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Canada — Korea Agreement on the Procurement of Telecommunications Equipment[Repealed, SOR/2005-207, s. 1]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; (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)

CUKTCA

CUKTCA means the Agreement on Trade Continuity between Canada and the United Kingdom of Great Britain and Northern Ireland, done at Ottawa, on December 9, 2020; (ACCCRU)

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NAFTA[Repealed, SOR/2020-66, s. 1]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publication[Repealed, SOR/95-300, s. 3]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)

trade agreement

trade agreement means any of the following:

• (a) the CFTA;

• (b) the Agreement on Government Procurement;

• (c) the CCFTA;

• (d) the CPFTA;

• (e) the CCOFTA;

• (f) the CPAFTA;

• (g) the CHFTA;

• (h) the CKFTA;

• (i) CETA;

• (j) CUFTA;

• (k) the TPP; and

• (l) the CUKTCA; (accord commercial)

working day

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

2.1 For the purposes of the Act, procurement process means the process that begins after a government institution has decided on its requirement and ends immediately after a designated contract is awarded. For greater certainty, it does not include the administration of an awarded designated contract, such as any actions taken or not taken by a government institution if it discovers after awarding the designated contract that the winning bid contained incorrect or incomplete information.

• 2.2 (1) For the purposes of these Regulations, a bidder or prospective bidder is from Canada if it is a Canadian supplier within the meaning of Chapter Five of the CFTA.

• (2) For the purposes of these Regulations,

  • (a) Canada is a party to all trade agreements; and

  • (b) a country or a customs territory, other than Canada, is a party to a trade agreement only if

    • (i) in the case of the Agreement on Government Procurement, it is listed in Part 1 of the schedule,

    • (ii) in the case of the CCFTA, it is listed in Part 2 of the schedule,

    • (iii) in the case of the CPFTA, it is listed in Part 3 of the schedule,

    • (iv) in the case of the CCOFTA, it is listed in Part 4 of the schedule,

    • (v) in the case of the CPAFTA, it is listed in Part 5 of the schedule,

    • (vi) in the case of the CHFTA, it is listed in Part 6 of the schedule,

    • (vii) in the case of the CKFTA, it is listed in Part 7 of the schedule,

    • (viii) in the case of CETA, it is listed in Part 8 of the schedule,

    • (ix) in the case of CUFTA, it is listed in Part 9 of the schedule,

    • (x) in the case of the TPP, it is listed in Part 10 of the schedule, and

    • (xi) in the case of the CUKTCA, it is listed in Part 11 of the schedule.

• (3) For the purposes of these Regulations, the following are the provisions in respect of procurement of a trade agreement:

  • (a) Chapter Five of the CFTA;

  • (b) the entirety of the Agreement on Government Procurement;

  • (c) Chapter Kbis of the CCFTA;

  • (d) Chapter Fourteen of the CPFTA;

  • (e) Chapter Fourteen of the CCOFTA;

  • (f) Chapter Sixteen of the CPAFTA;

  • (g) Chapter Seventeen of the CHFTA;

  • (h) Chapter Fourteen of the CKFTA;

  • (i) Chapter Nineteen of CETA;

  • (j) Chapter Eleven of CUFTA;

  • (k) Chapter Fifteen of the TPP; and

  • (l) Chapter Nineteen of CETA as incorporated by reference in the CUKTCA and modified by the Articles and Annexes of the CUKTCA.

• 2.3 (1) Trade agreements, other than the CFTA, are to be interpreted in accordance with Section 3 of Part III of the Vienna Convention on the Law of Treaties done at Vienna, May 23, 1969.

• (2) The CFTA is to be interpreted in accordance with Article 1207 of that Agreement.

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 II of the Agreement on Government Procurement as incorporated by reference in CUFTA, in Article 504 of Chapter Five of the CFTA, in Article 15.2 of Chapter Fifteen of the TPP or in Article 19.2 of Chapter Nineteen of CETA as incorporated by reference in the CUKTCA and modified by the Articles and Annexes of the CUKTCA, 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, in Section A of the Schedule of Canada in Annex 15-A of Chapter Fifteen of the TPP or in Annex 19-1 of Annex 19-A in Chapter Nineteen of CETA as incorporated by reference in the CUKTCA and modified by the Articles and Annexes of the CUKTCA, 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, the federal government enterprises that are referred to in Annex 19-3 of Annex 19-A in Chapter Nineteen of CETA or in Annex 19-3 of Annex 19-A in Chapter Nineteen of CETA as incorporated by reference in the CUKTCA and modified by the Articles and Annexes of the CUKTCA 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.

Matters Not to be Addressed or Examined

• 4.01 (1) Despite any provision in respect of procurement of any trade agreement, the Tribunal shall not address or examine matters relating to any measure in the procurement process that

  • (a) restricts participation in the procurement process to Canadian suppliers or favours Canadian suppliers;

  • (b) requires goods or services supplied to be Canadian goods or services or favours the supply of Canadian goods or services;

  • (c) requires or favours the use of Canadian materials;

  • (d) requires or favours the use of Canadian subcontractors; or

  • (e) requires bids to provide benefits for Canada or include a minimum Canadian value-added or favours bids based on the benefits for Canada they would provide or their Canadian value-added.

• (2) Despite any provision in respect of procurement of CETA or the CUKTCA, the Tribunal shall not address or examine matters relating to any measure in the procurement process that restricts participation to small businesses.

• (3) Despite any provision in respect of procurement of any trade agreement, the Tribunal shall not address or examine matters relating to the way in which the expressions “Canadian supplier”, “Canadian good”, “Canadian service”, “Canadian material”, “Canadian subcontractor”, “benefit for Canada”, “Canadian value-added” or “small business” are defined for the purposes of the procurement process.

Determination of Standing as Potential Supplier

• 4.1 (1) For the purposes of sections 30.1 to 30.19 of the Act, a bidder or prospective bidder on a designated contract is a potential supplier only if it is from Canada or from a country or customs territory listed in the schedule that is a party to a trade agreement that applies in respect of the designated contract.

• (2) For the purposes of those sections, a supplier or subcontractor to a bidder or prospective bidder on a designated contract is not a potential supplier unless the supplier or subcontractor is also a bidder or prospective bidder on the contract.

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 trade agreements, 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 the provisions in respect of procurement of one or more applicable trade agreements.

• (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 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;

  • (c.1) the complaint raises matters that are not set out in section 4.01; 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 Subject to section 4.01, 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.