CITT: February 2007 Determinations
Canadian North Inc. v. Department of Indian Affairs and Northern Development (CITT File No. PR-2006-026)
Canadian North Inc. ("Canadian North") filed a complaint with the Canadian International Trade Tribunal ("the CITT") concerning the procurement of air transport services in relation to the execution of the Food Mail Program ("the Program") in Canada's North. Canadian North alleged that the Department of Indian Affairs and Northern Development ("DIAND") and/or Canada Post Corporation ("Canada Post") failed to disclose all the criteria that were employed in the evaluation of the proposals, and thus the procurement violated the provisions of the Agreement on Internal Trade ("AIT"). This resulted in discrimination among potential suppliers.
Following a review of the criteria and evaluation process, the CITT found that the complaint was valid. The grounds raised by Canadian North demonstrate that evaluation criteria were not disclosed in the tender documents. The CITT stated that where the sub-criteria, scoring scheme, or any other aspect of the undisclosed evaluators' grid cannot be reasonably anticipated by bidders on the basis of information in the RFP, there will be a violation of the AIT.
In order to effectively address the harm inflicted upon Canadian North, the CITT recommended that DIAND commence a new procurement for the conveyance of Food Mail, and that monetary compensation be provided. (Date of Determination: 2007/02/05)
Note: DIAND brought a motion to the CITT during this complaint for an order dismissing the complaint for want of jurisdiction. The CITT dismissed the motion on November 9, 2006. DIAND then filed an application for judicial review at the Federal Court of Appeal, which the Court allowed. The Court ordered that the CITT's decision to dismiss the complaint should be quashed and directed that the CITT should dismiss the complaint due to lack of jurisdiction. See the Determination for File No. PR-2006-026R.
Re Comtrex Communications Inc. (CITT File No. PR-2006-037)
The Canadian International Trade Tribunal decided not to initiate an inquiry into this complaint by Comtrex Communications Inc. on the ground that the CITT did not have jurisdiction to conduct an inquiry in the procurement action in this case.
Under section 7 of the Canadian International Trade Tribunal Procurement Inquiry Regulations, a complaint must be in respect of a designated contract. A designated contract is defined (in part) in s. 3 of the Regulations as being 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 the North American Free Trade Agreement ("NAFTA"), in Article 502 of the Agreement on Internal Trade ("AIT") or in Article I of the Agreement on Government Procurement ("AGP").
On February 1, 2007, Public Works and Government Services Canada sent a letter which confirmed that the solicitation in question was subject to the national security exception. As such, the CITT held that it did not have the jurisdiction to conduct an inquiry and closed the matter on the basis of Article 1018(1) of NAFTA, Article 1804 of the AIT, and Article XXIII(1) of the AGP. (Date of Determination: 2007/02/12.)
Re SECOR Consulting Inc. (CITT File No. PR-2006-043)
In this complaint, SECOR argued that its bid was superior in terms of a higher rating and lower price than the bid which was accepted by Industry Canada ("IC"). However, another requirement of the Request For Proposals was that the consultant have an "enhanced" security clearance by the award date. SECOR filed some documents fairly late in the process, so its security clearance was not finalized until after the contract was awarded to another party.
The Canadian International Trade Tribunal decided that requiring a security clearance as a condition in an RFP meant that IC had undertaken to initiate the security screening process, but that it should not be interpreted as an undertaking to delay the awarding of a contract until all of the bidders had acquired the necessary clearance. Also, IC had properly advised all of the bidders of the consequences of not attaining the appropriate security clearance by the award date, had allowed a reasonable amount of time for the clearance applications to be submitted and approved, and it had properly judged SECOR's proposal non-compliant with the RFP. Accordingly, the CITT decided not to initiate an inquiry into this complaint. (Date of Determination: 2007/02/14)
