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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
• • DECISION

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

BY

AL BAWABA MIDDLE EAST LIMITED

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 complaint relates to a procurement (Solicitation No. 6D025-080921/C) by the Department of Public Works and Government Services (PWGSC) on behalf of the Public Health Agency of Canada for the provision of media monitoring services.

3. Al Bawaba Middle East Limited (Al Bawaba) alleged that PWGSC incorrectly awarded a contract to a non-compliant bidder.

4. Section 11 of the Regulations provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, in this instance, is the Agreement on Internal Trade.³ Section 30.11 of the CITT Act provides for the filing of a complaint by a “potential supplier” relative to a “designated contract”. Subsection 3(1) of the Regulations adds that a “designated contract” is one that is described in certain trade agreements, including the AIT. Article 502 of the AIT states that Chapter Five of the AIT entitled “Procurement” “. . . applies to measures adopted or maintained by a Party [to the AIT] relating to procurement within Canada . . . .” [emphasis added]. In its judgment dated May 22, 2008,⁴ the Federal Court of Appeal determined that “. . . the ‘within Canada’ requirement in Article 502 will be met by any entity that meets the requirements of the definition of Canadian supplier”, which is defined by Article 518 of the AIT as “. . . a supplier that has a place of business in Canada”.

5. In Northrop Grumman Overseas Services Corp. v. Canada (Attorney-General),⁵ the Supreme Court of Canada held that non-Canadian suppliers do not have standing before the Tribunal to bring complaints under the AIT. The Supreme Court of Canada was upholding a Federal Court of Appeal judgment that a U.S. company with no place of business in Canada was not a Canadian supplier and, thus, that the matter was outside the Tribunal’s jurisdiction under the AIT.

6. In Northrop Grumman Overseas Services Corporation v. Department of Public Works and Government Services,⁶ the Tribunal determined that, in the absence of a place of business in Canada at the time of the bidding process, the complainant was not a “Canadian supplier” and, therefore, determined that it did not have jurisdiction to commence an inquiry into the complaint.

7. Al Bawaba is a Jordanian-based company. According to the information included in the complaint,⁷ the Tribunal finds that Al Bawaba did not have a place of business in Canada at the time of the bidding process and, therefore, is not a Canadian supplier and does not have standing before the Tribunal under the AIT.

8. Therefore, the Tribunal does not have jurisdiction to commence an inquiry into Al Bawaba’s 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 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT]. The particular services requested fall under Category T – “Communications, Photographic, Mapping, Printing and Publication Services” and, as such, are excluded from coverage under the North American Free Trade Agreement per Annex 1001.1b-2, the Agreement on Government Procurement per Annex 4 and the Canada-Chile Free Trade Agreement per Annex Kbis-01.1-4.

⁴ . Canada (Attorney General) v. Northrop Grumman Overseas Services Corp.,[2009] 1 F.C.R. 688.

⁵ . 2009 SCC 50 (CanLII).

⁶ . Re Complaint Filed by Northrop Grumman Overseas Services Corporation (2 December 2009), PR-2007-008R (CITT), para. 22.

⁷ . Complaint, Section 3: Certifications, at 2.