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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
• • DECISION

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IN THE MATTER OF a complaint filed under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47

BY

ONTARIO DENTAL ASSOCIATION

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

Pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal has decided not to conduct an inquiry into the complaint.

Dominique Laporte
Dominique Laporte
Secretary

1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations,² a potential supplier may file a complaint with the Canadian International Trade Tribunal (the Tribunal) concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint. Subsection 30.13(1) of the CITT Act provides that, subject to the Regulations, after the Tribunal determines that a complaint complies with subsection 30.11(2) of the CITT Act, it shall decide whether to conduct an inquiry into the complaint.

2. The Ontario Dental Association (ODA) alleges that the Department of Health (Health Canada), in regard to Solicitation No. 1000096691 for the provision of dental hygienist services in support of the Sioux Lookout Zone Dental Program on behalf of the Ontario region of Health Canada, inconsistently and mistakenly applied the evaluation criteria regarding rated categories R1, R2, R3 and R5.

3. As indicated above, subsection 30.11(1) of the CITT Act provides that, “[s]ubject to the regulations, a potential supplier may file a complaint with the Tribunal concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint.”

4. The Tribunal must first examine whether there is a “designated contract” as defined in section 30.1 of the CITT Act. This section defines such a contract as “. . . a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution and that is designated or of a class of contracts designated by the regulations”.

5. For the purposes of the definition of “designated contract” in section 30.1 of the CITT Act, the Regulations designate any contract or class of contract concerning a procurement of goods or services or any combination of goods or services by a government institution, as described in Article 1001 of the North American Free Trade Agreement,³ in Article 502 of the Agreement on Internal Trade,⁴ in Article I of the Agreement on Government Procurement ⁵ or in Article Kbis-01 of Chapter Kbis of the Canada-Chile Free Trade Agreement.⁶

6. The Tribunal notes that the procurement at issue is for the provision of dental hygienist services. The Request for a Standing Officer (RFSO) states that the requested services are in support of “. . . a mandate to make certain health care programs and services are available and accessible to First Nations and Inuit in Ontario”⁷ [emphasis added]. As such, the Tribunal considers that this procurement is for health services. In its complaint, ODA suggests that the “. . . services of dental hygienists do not fall within the scope of [the] exclusion under [Annex] 502.1B [of the AIT]”.⁸ However, this proposition is not elaborated on, nor explained further, in the complaint. The Tribunal is of the view that paragraph 1(e) of Annex 502.1B of the AIT clearly excludes “health services”. As such, the Tribunal finds that the AIT does not apply.

7. The Tribunal is also of the view that none of the other trade agreements apply.⁹

8. Given that none of the trade agreements apply to the solicitation in question, the Tribunal lacks the jurisdiction to initiate an inquiry into the complaint.

DECISION

9. Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.

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¹ . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].

² . S.O.R./93-602 [Regulations].

³ . North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA].

⁴ . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].

⁵ . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].

⁶ . Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50 (entered into force 5 July 1997) [CCFTA]. Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.

⁷ . RFSO at 2.

⁸ . Complaint at 5.

⁹ . Annex 1001.1b-1 of NAFTA and Annex Kbis-01.1-3 of the CCFTA, which use the Common Classification System for classifying services, both exclude all classes of services under “G: Health and Social Services”. In addition, Annex 4 of Canada’s Appendix 1 to the AGP, which provides of listing of services that Canada offers for coverage, does not include any health services.