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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

SUPREMEX INC.

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 Request for a Standing Offer (RFSO) (Solicitation No. EN578-092719/B) by the Department of Public Works and Government Services (PWGSC) for the printing of envelopes.

3. Supremex Inc. (Supremex) alleges that PWGSC issued a standing offer to a U.S. company, National Envelope, which does not meet the Canadian content requirement.³ Supremex alleges that “. . . the [U.S.] supplier is not being truthful about the realities of where these products are being printed and distributed.”

4. Subsection 6(1) of the Regulations provides that a complaint shall be filed with the Tribunal “. . . 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.”

5. Subsection 6(2) states that “[a] potential supplier who has made an objection . . . 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.”

6. In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become aware, of its ground of complaint to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.

7. According to the complaint, Supremex became aware on November 9, 2009, that PWGSC had issued a standing offer to National Envelope. The Tribunal finds that this is the date on which the basis of its complaint became known, or reasonably should have become known, to Supremex.

8. On November 24, 2009, Supremex made an objection to PWGSC concerning the legitimacy of the information declared by National Envelope in its offer. Coming within 10 working days after November 9, 2009, this objection was timely.⁴

9. On February 5, 2010, PWGSC advised Supremex that an assessment of National Envelope had been completed and that it concluded that National Envelope had the capability to print the envelopes and that it met the Canadian content requirement of the RFSO.

10. On February 15, 2010, Supremex requested information from PWGSC regarding the government audit process for the Canadian content requirement. Later that day, PWGSC advised Supremex that its decision concerning National Envelope remained unchanged and reiterated that National Envelope had the capability to print the envelopes and that it met the provisions of the Canadian content requirement of the RFSO.

11. On February 16, 2010, through an apparently unsolicited e-mail, PWGSC advised Supremex that “. . . there is nothing else to do . . .” regarding the issue unless Supremex had evidence that National Envelope did not meet the Canadian content requirement of the RFSO.

12. Despite the previous exchanges between PWGSC and Supremex regarding the issues raised in Supremex’s objection, the Tribunal considers that this final advisory from PWGSC on February 16, 2010, constitutes a firm denial of relief.⁵ This date is also the most favourable to Supremex, considering all previous exchanges.

13. In order to meet the requirements of subsection 6(2) of the Regulations, Supremex had until March 2, 2010 (i.e. 10 working days after February 16, 2010), to file its complaint with the Tribunal. Instead, Supremex filed its complaint on March 22, 2010. Accordingly, the complaint was filed in an untimely manner.

14. Therefore, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.

DECISION

15. 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 . Part 5, Article 1.2 of the RFSO required that offerors certify that a minimum of 80 percent of the total bid price consist of Canadian goods and services, as defined in paragraph 5 of PWGSC’s Standard Acquisition Clauses and Conditions Manual, clause A3050T, “Canadian Content Definition”.

⁴ . The Tribunal notes that November 11, 2009, was a statutory holiday.

⁵ . The Tribunal notes that had February 5 or 15, 2010, been determined as the dates upon which Supremex received its final denial of relief, the complaint would still have been filed in an untimely manner.