CITT

• Approximately eighty bid protests a year are now being filed with the CITT by suppliers and potential suppliers.

Of these complaints, approximately 25% are determined to be valid. This compares with a success rate of only about 5% before the General Accounting Office in the United States.

• The Canadian International Trade Tribunal is the tribunal established to review federal Contract Awards.

  The Canadian International Trade Tribunal is an independent bid challenge authority established by federal legislation (the CITT Act), whose jurisdiction includes reviewing complaints by potential suppliers that federal government procurements have been conducted in an unfair manner which violates the provisions of the North American Free Trade Agreement ("NAFTA") the WTO Agreement on Government Procurement ("AGP") or the Agreement on Internal Trade ("AIT") .

• The CITT has jurisdiction to hear complaints against federal government entities.

The CITT has jurisdiction to hear complaints against federal government entities. It has no jurisdiction to hear complaints concerning procurements by other levels of government. The sole exception to this rule is that where a provincial government entity has made a purchase for a federal government entity, then a complaint may be made to the CITT that the federal government entity circumvented its obligations under the Trade Agreements.

• The CITT process is complaints-driven.

The jurisdiction of the CITT flows from the filing of a timely complaint by a potential supplier who has standing to make such a complaint. If the government breaches one of the Trade Agreements in conducting a procurement, but no supplier files a timely complaint, then the CITT will not inquire into the procurement on its own motion.

• The CITT is an independent administrative tribunal, and not a government department populated with public servants.

The backgrounds of the CITT members displays a mix of government and private sector experience. This blend of experience appears to be a good one, and it can readily be said that the CITT brings a fair, pragmatic and open-minded approach to the issues before it – many of which are novel, and factually and legally complex.

• The legislative framework within which the CITT operates in procurement matters is primarily contained in sections 30.11 to 30.19 of the CITT Act .

These provisions establish the process by which potential suppliers may complain to the CITT that a contract covered by NAFTA , the AIT or the AGP has been or is about to be awarded in a manner which violates those agreements, or that they have been wrongly denied a contract or the opportunity to compete for a contract.

• A complaint must be made within ten working days after the supplier knows or reasonably ought to have known the grounds of complaint.

Within the initial ten working day period, the supplier can either complain to the CITT, or to the government entity (usually but not always PWGSC). If the initial complaint is made in a timely way to the government entity, then the supplier may complain to the CITT within ten working days after gaining actual or constructive knowledge of that entity's denial of relief.

• The CITT has very broad investigative powers in relation to procurement complaints.

The issues which Parliament has expressly placed within the jurisdiction of the CITT include:

• whether to conduct an inquiry (section 30.03, CITT Act );

• to determine whether the complaint is valid (section 30.14, CITT Act );

• to determine and recommend such remedy as the CITT considers appropriate (including conducting a new solicitation, a re-evaluing of the bids, terminating of the contract, awarding the contract to the Complainant or awarding compensation to the Complainant in an amount specified by the tribunal) (section 30.15(2), CITT Act);

• to decide whether to award costs (sections 30.15(4), 30.16, CITT Act ); and

• whether to make comments and observations on a procurement to the Deputy Head of a government institution (section 30.19, CITT Act ).
• The CITT's hearings are mostly in writing.

Although the CITT has the power to convene an oral hearing into a complaint, in practice this has not yet occurred. In every procurement complaint made to date, the Tribunal has determined that it was able deal with the matter on the basis of written submissions.

• The CITT has wide powers to formulate and recommend any remedy it considers appropriate upon consideration of all the circumstances of the case.

Where the CITT determines that a complaint is valid, it may recommend such remedy as it considers appropriate, including but not limited to any one or more of the following:

• that a new solicitation for the contract be issued;

• that the bids be re-evaluated;

• that a contract has already been awarded be terminated;

• that the contract be awarded to the complainant; or

• that the complainant be compensated by an amount specified by the Tribunal, (including lost profits or lost opportunity to profit).

The CITT Act also permits the CITT to award a complainant the costs incurred by the complainant in preparing a response to the solicitation, and the costs of the proceedings before the CITT.

• The CITT is to consider all of the circumstances relevant to the procurement in recommending an appropriate remedy, including:
   

  • the seriousness of any deficiency in the procurement process found by the tribunal;

  • the degree to which the complainant and all other interested parties were prejudiced;

  • the degree to which the integrity and efficiency of the competitive procurement system was prejudiced;

  • whether the parties acted in good faith; and

  • the extent to which the contract was performed.
  
  
• Where the CITT recommends a remedy to a government institution, the government institution has a statutory duty to implement that recommendation to the greatest extent possible .

The Federal Court has stated that the legislative scheme implementing Canada's trade agreement obligations into law must be rigorously respected by the government.

See Wang Canada Limited v. Canada (Minister of Public Works and Government Services) , September 28, 1998, Doc. T-944-98 (Fed. T.D.)).

• The Types of Cases that End Up Before the CITT…

The most common types of cases that end up before the CITT include the following:

1. The use of an ACAN to sole-source a contract to a particular supplier does not meet the strict terms of the exceptions in the trade agreements.

2. The statement of requirements in an ACAN or an RFP has been written to favour one supplier, and precludes consideration of other designs or approaches.

3. The evaluation methodology in an RFP contains elements (e.g. weighting factors, conversion or transition costs) which introduce an impermissible bias in favour of one product.

4. The evaluation methodology in the RFP is unclear, prone to manipulation, or contains overly subjective terms (e.g. the use of "consensus scoring").

5. The actual evaluation of proposals did not follow the methodology and criteria announced in the RFP documents.

6. Points that bidders were told in the RFP would be available were not, in fact, awarded by the evalution team.

7. All proposals were not evaluated consistently. Mandatory and/or rated criteria were not applied even-handedly.

8. Equal information was not provided to all bidders.

9. The time allowed for preparation and submission of bids was unreasonably short and disadvantaged some bidders.

10. The complainant's bid was improperly ruled non-compliant.

11. All bids except the winning bid were ruled non-compliant.

12. he contract was improperly awarded to a bidder whose bid ought to have been ruled non-compliant.

• The CITT is an efficient, independent and effective alternative to court for resolving procurement complaints.

The CITT normally will issue its findings and recommendations in respect of a complaint within 90 days after the filing of the complaint. Upon request, this process may be expedited to 45 days or extended to 135 days.