Canadian International Trade Tribunal Procurement Inquiry Regulations

Link to law: http://laws-lois.justice.gc.ca/eng/regulations/SOR-93-602/FullText.html

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Canadian International Trade Tribunal Procurement Inquiry Regulations

SOR/93-602CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT
Registration 1993-12-15
Regulations Respecting Canadian International Trade Tribunal Inquiries into Potential Suppliers’ Complaints Concerning Government Procurement
P.C. 1993-2102 1993-12-15His Excellency the Governor General in Council, on the recommendation of the Minister of Finance, pursuant to section 40Footnote * of the Canadian International Trade Tribunal ActFootnote **, is pleased hereby to make the annexed Regulations respecting inquiries into procurement complaints by potential suppliers under the North American Free Trade Agreement, effective on the day on which sections 44, 45 and 46 of An Act to implement the North American Free Trade Agreement, being chapter 44 of the Statutes of Canada, 1993, come into force.

Return to footnote *S.C. 1993, c. 44, s. 46
Return to footnote **R.S., c. 47 (4th Supp.)
Short Title

1 These Regulations may be cited as the Canadian International Trade Tribunal Procurement Inquiry Regulations.
SOR/95-300, 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 means the Agreement on Internal Trade published in the Canada Gazette Part I, on April 29, 1995; (Accord sur le commerce intérieur)
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Canada — Korea Agreement on the Procurement of Telecommunications Equipment [Repealed, SOR/2005-207, s. 1]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)
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)
NAFTA
NAFTA means North American Free Trade Agreement as defined in subsection 2(1) of the North American Free Trade Agreement Implementation Act; (ALÉNA)
publication
publication [Repealed, SOR/95-300, s. 3]
working day
working day means a day that is not a Saturday or a holiday. (jour ouvrable)

SOR/95-300, s. 3;
SOR/96-30, s. 1;
SOR/2000-395, s. 1;
SOR/2005-207, s. 1;
SOR/2007-157, s. 1;
SOR/2010-25, s. 1;
SOR/2011-135, s. 1;
SOR/2013-54, s. 1.

Previous Version

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 1001 of NAFTA, in Article 502 of the Agreement on Internal Trade, 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 or in Article 14.3 of Chapter Fourteen of the CKFTA, 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 in the Schedule of Canada in Annex 1001.1a-1 of NAFTA, under the heading “CANADA” in Annex 502.1A of the Agreement on Internal Trade, 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 I of Chapter Sixteen of the CPAFTA, in the Schedule of Canada in Annex 17.1 of Chapter Seventeen of the CHFTA or in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA and the federal government entities referred to in Chapter 5 of the Agreement on Internal Trade; and
(b) the government enterprises set out in the Schedule of Canada in Annex 1001.1a-2 of NAFTA, 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 II of Chapter Sixteen of the CPAFTA , in the Schedule of Canada in Annex 17.2 of Chapter Seventeen of the CHFTA or in the Schedule of Canada in Annex 14-A of Chapter Fourteen of the CKFTA;
(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]

SOR/95-300, s. 4;
SOR/96-30, s. 2;
SOR/2000-395, s. 2;
SOR/2005-207, s. 2;
SOR/2007-157, s. 2;
SOR/2010-25, s. 2;
SOR/2010-87, s. 1;
SOR/2011-135, s. 2;
SOR/2013-54, s. 2;
SOR/2013-168, s. 1;
SOR/2014-223, s. 1;
SOR/2014-303, s. 1.

Previous Version

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 NAFTA, the Agreement on Internal Trade, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA and the CKFTA, at the time it 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.

SOR/95-300, s. 5;
SOR/96-30, s. 3;
SOR/2000-395, s. 3;
SOR/2005-207, s. 3;
SOR/2007-157, s. 3;
SOR/2010-25, s. 3;
SOR/2011-135, s. 3;
SOR/2013-54, s. 3;
SOR/2014-223, s. 2;
SOR/2014-303, s. 2.

Previous Version

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 Chapter Ten of NAFTA, Chapter Five of the Agreement on Internal Trade, 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 and Chapter Fourteen of the CKFTA.

(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.

SOR/95-300, s. 6;
SOR/96-30, s. 4;
SOR/2000-395, s. 4;
SOR/2005-207, s. 4;
SOR/2007-157, s. 4;
SOR/2010-25, s. 4;
SOR/2011-135, s. 4;
SOR/2013-54, s. 4;
SOR/2014-223, s. 3;
SOR/2014-303, s. 3.

Previous Version

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 Chapter Ten of NAFTA, Chapter Five of the Agreement on Internal Trade, 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 or Chapter Fourteen of the CKFTA 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.

SOR/95-300, s. 7;
SOR/96-30, s. 5;
SOR/2000-395, s. 5;
SOR/2005-207, s. 5;
SOR/2007-157, s. 5;
SOR/2010-25, s. 5;
SOR/2011-135, s. 5;
SOR/2013-54, s. 5;
SOR/2014-223, s. 4;
SOR/2014-303, s. 4.

Previous Version

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.

SOR/2002-403, s. 1.

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.

SOR/96-30, s. 6.

Dismissal of Complaints

10 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, NAFTA, the Agreement on Internal Trade, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA or the CKFTA, 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.

SOR/95-300, s. 8;
SOR/96-30, s. 7;
SOR/2000-395, s. 6;
SOR/2005-207, s. 6;
SOR/2007-157, s. 6;
SOR/2010-25, s. 6;
SOR/2011-135, s. 6;
SOR/2013-54, s. 6;
SOR/2014-223, s. 5;
SOR/2014-303, s. 5.

Previous Version

Determination

11 If the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement was conducted in accordance with the requirements set out in whichever of NAFTA, the Agreement on Internal Trade, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA or the CKFTA applies.

SOR/95-300, s. 9;
SOR/96-30, s. 8;
SOR/2000-395, s. 7;
SOR/2005-207, s. 7;
SOR/2007-157, s. 7;
SOR/2010-25, s. 7;
SOR/2011-135, s. 7;
SOR/2013-54, s. 7;
SOR/2014-223, s. 6;
SOR/2014-303, s. 6.

Previous Version

Issuance of Findings and Recommendations

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.

SOR/96-30, s. 9.