OPSIS, GESTION D’INFRASTRUCTURES INC.
OPSIS, GESTION D’INFRASTRUCTURES INC.
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2010-090
Order and reasons issued
Friday, June 10, 2011
IN THE MATTER OF a complaint filed by Opsis, Gestion d’infrastructures Inc. pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;
AND FURTHER TO a decision of the Canadian International Trade Tribunal to inquire into the complaint pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act;
AND FURTHER TO a motion filed by the Department of Public Works and Government Services on March 23, 2011, pursuant to rule 24 of the Canadian International Trade Tribunal Rules, for an order dismissing the complaint on the basis that the Canadian International Trade Tribunal does not have jurisdiction to continue its inquiry.
BETWEEN
OPSIS, GESTION D’INFRASTRUCTURES INC. Complainant
AND
THE DEPARTMENT OF PUBLICS WORKS AND GOVERNMENT SERVICES Government Institution
The Canadian International Trade Tribunal finds that it does not have jurisdiction to continue its inquiry into the complaint and, therefore, pursuant to paragraph 10(a) of the Canadian International Trade Tribunal Procurement Inquiry Regulations, dismisses the complaint.
Diane Vincent
Diane Vincent
Presiding Member
Dominique Laporte
Dominique Laporte
Secretary
Tribunal Member: Diane Vincent, Presiding Member
Director: Randolph W. Heggart
Senior Investigator: Michelle N. Mascoll
Investigator: Josée B. Leblanc
Counsel for the Tribunal: Georges Bujold
Complainant: Opsis, Gestion d’infrastructures Inc.
Counsel for the Complainant: Patrice Gladu
Intervener: Cofely Services Inc.
Government Institution: Department of Public Works and Government Services
Counsel for the Government Institution: Alex Kaufman
Marie-Josée Montreuil
Susan D. Clarke
Ian McLeod
Roy Chamoun
Please address all communications to:
The Secretary
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
15th Floor
Ottawa, Ontario
K1A 0G7
Telephone: 613-993-3595
Fax: 613-990-2439
E-mail:
COMPLAINT
1. On February 24, 2011, Opsis, Gestion d’infrastructures Inc. (Opsis) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act1 concerning a procurement (solicitation No. K4C20-091012/B) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of the Environment (EC) for the maintenance and operation of the mechanical and electrical systems at the Canadian Meteorological Centre in Dorval, Quebec.
2. Opsis alleges that PWGSC evaluated its proposal improperly and, in so doing, breached Article 506 of the Agreement on Internal Trade.2 As a remedy, it requested that the Tribunal recommend that PWGSC re-evaluate the proposals submitted, that is, those of Opsis and Cofely Services Inc. (Cofely). Furthermore, Opsis requested that the Tribunal recommend that the contract awarded to Cofely be cancelled and that the contract be awarded to Opsis. In the alternative, it requested that the Tribunal recommend that PWGSC monetarily compensate it. In addition, Opsis requested its complaint costs.
3. On March 3, 2011, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.3
4. On March 7, 2011, PWGSC informed the Tribunal that a contract in the amount of $739,452.65 had been awarded to Cofely. On March 8, 2011, the Tribunal informed Cofely that a complaint had been filed with the Tribunal concerning the contract that it had been awarded and that the Tribunal had decided to inquire into this complaint. On March 11, 2011, Cofely requested that the Tribunal grant it intervener status. On March 16, 2011, the Tribunal granted Cofely intervener status.
5. On March 23, 2011, PWGSC filed a motion with the Tribunal for an order dismissing the complaint on the basis that the Tribunal did not have jurisdiction to inquire into the complaint since the Government of Canada had, in relation to the subject procurement, invoked the national security exception provided for in Article 1804 of the AIT. According to PWGSC, once the provisions of Article 1804 are invoked by the Government of Canada, they have the effect of exempting the subject procurement from the scope of the AIT and, in so doing, of rendering the rules with regard to the procurement process and the bid protest procedures provided for in the AIT non applicable. In the present case, the AIT is the only trade agreement that could potentially apply.4
6. In support of its motion, PWGSC filed a letter dated August 6, 2010, from the Assistant Deputy Minister of the Acquisitions Branch of PWGSC, Mr. Tom Ring, as well as a letter dated June 15, 2010, from the Assistant Deputy Minister and Chief Information Officer at EC, Mr. C. B. A. Shawcross, addressed to Mr. Ring. The latter letter requested that the national security exception be invoked with regard to the extension of an existing contract, as well as for all future procurements concerning supercomputers and the facilities to house them. Mr. Ring’s letter of August 6, 2010, was a response to Mr. Shawcross’s request. In that letter, Mr. Ring agreed to invoke the national security exception and to exempt from the scope of the trade agreements, including that of the AIT, procurements concerning “. . . the extension of the existing contract as amended, as well as with respect to any future procurements of supercomputers and the facilities to house them.” The supercomputers to which reference was made are located, at this time, at the Canadian Meteorological Centre in Dorval.
7. Further to a request by the Tribunal dated March 28, 2011, on March 31, 2011, Opsis submitted its comments on PWGSC’s motion. Opsis submitted that the national security exception invoked by PWGSC in its letter dated August 6, 2010, did not apply to the subject procurement. In this regard, Opsis submitted that the Request for Proposal dated January 20, 2011, and the summary of the notice of proposed procurement issued on January 21, 2011, did not contain any reference to Article 1804 of the AIT that would exclude the subject procurement from the scope of that agreement. According to Opsis, the summary of the notice of proposed procurement indicated, on the contrary, that the procurement was subject to the AIT, as was a previous procurement in 2006 concerning the maintenance of the building that houses the Canadian Meteorological Centre in Dorval.5
8. Opsis also submitted that the June 15 and August 6, 2010, letters filed in support of the motion clearly indicate that the invocation of the national security exception only applies to the extension of the existing lease of a supercomputer and the possible procurement of new supercomputers, as well as the acquisition and development of facilities to house them, which is definitely not the purpose of the subject procurement. According to Opsis, the request for a national security exception does not therefore, in any way, concern the contract that is the subject of the complaint, since the future successful bidder will not be involved at all with the extension of existing contracts for supercomputers, the procurement of future supercomputers and the setting up of facilities that could house them. In this regard, Opsis submitted that the services requested in the subject procurement are services that concern the entire building that houses the Canadian Meteorological Centre and do not specifically concern “the facilities or the maintenance of supercomputers” [translation] found therein.
9. On April 5, 2011, PWGSC responded to Opsis’s comments. PWGSC submitted that it actually duly invoked the national security exception with respect to the subject procurement by following the procedure prescribed by the Tribunal in Lotus Development Canada Limited.6 PWGSC submitted that, contrary to the allegations made by Opsis, the national security exception requested by EC and granted by PWGSC clearly concerns the existing and future housing of the supercomputers. According to PWGSC, the subject procurement concerns “. . . the continual procurement of qualified labour for the operation, maintenance and performance of minor repairs at the CMC [Canadian Meteorological Centre]” [translation], and the national security exception was invoked with regard to all procurements that concern the supercomputers and the necessary facilities to house them. PWGSC submitted that the national security exception being invoked necessarily concerns the maintenance of the electrical and mechanical systems that allow the Canadian Meteorological Centre facilities in Dorval to function properly, since it is a body that is responsible for performing critical tasks that are linked to national security. Furthermore, PWGSC submitted that the two departments involved know what is meant by the word “facilities” and that it was their intention to include the necessary mechanical maintenance to operate the facilities of the Canadian Meteorological Centre in Dorval in the scope of the national security exception. In short, since the work contemplated by the subject procurement involves activities necessary to operate the centre, PWGSC submitted that the exchange of letters between Messrs. Shawcross and Ring was sufficiently clear to justify invoking the national security exception.
10. On April 12, 2011, the Tribunal requested that PWGSC provide it with all the documents that it had in its possession with regard to the preparation and exchange of the June 15 and August 6, 2010, letters filed by PWGSC in support of its motion. On April 15, 2011, further to the Tribunal’s request, PWGSC filed 235 pages of documents, including previous cases of the national security exception being invoked in respect of the Canadian Meteorological Centre in Dorval. PWGSC submitted that those previous invocations of the exception established that the Government has constantly invoked it in the various procurements relating to the facilities in Dorval. On April 29, 2011, Opsis filed its comments on PWGSC’s documents in which it reiterated that, in its opinion, the Tribunal had complete jurisdiction to inquire into the complaint. According to Opsis, none of the previous invocations of the national security exception concerned services that were similar to those of the subject procurement and those invocations, just as the one made on August 6, 2010, did not constitute a blanket exemption for all contracts, regardless of their purpose, relating to the Canadian Meteorological Centre in Dorval.
11. On May 3, 2011, PWGSC informed the Tribunal that it had no comments on the additional comments provided by Opsis.
TRIBUNAL’S ANALYSIS
12. Article 1804 of the AIT provides for exceptions to the provisions of the trade agreements where national security is involved. Specifically, Article 1804 provides as follows:
Nothing in this Agreement shall be construed to:
(a) require the Federal Government to provide, or allow access to, information the disclosure of which it determines to be contrary to national security; or
(b) prevent the Federal Government from taking any action that it considers necessary to protect national security interests or, pursuant to its international obligations, for the maintenance of international peace and security.
13. The Tribunal has already stated that, when the Government of Canada finds that a procurement relates to national security and invokes the national security exception before soliciting bids, it does not have jurisdiction to inquire into the complaint relating to the procurement.7 In other words, the Tribunal does not have jurisdiction with respect to the federal government’s determination that a particular matter relates to national security:
In the Tribunal’s view, the above discussion pertaining to . . . Article 1804 of the AIT suggests that the Tribunal does not have any jurisdiction with respect to the government’s determination that a particular matter relates to national security.8
14. However, as the bid challenge authority under the trade agreements, the Tribunal can satisfy itself that a national security exception has actually and properly been invoked. The Tribunal’s role, that is, its jurisdiction with regard to national security exceptions, is therefore restricted. It is limited to determining the issue of whether the national security exception was actually and validly invoked in the context of a particular complaint. As determined in Lotus Development, the Tribunal must be satisfied that the national security exception in Article 1804 of the AIT was duly invoked by the federal government. If these conditions have not been met, then the Tribunal would not be fulfilling its responsibility, under the trade agreements, of ensuring that government procurement subject to the agreements is carried out in a manner consistent with the provisions of those agreements.9
15. Therefore, the issue before the Tribunal with regard to PWGSC’s motion is whether the national security exception was invoked properly and in a timely fashion by the Government of Canada. In this regard, the Tribunal notes that the AIT does not prescribe the manner in which the national security exception must be invoked by the federal government. In other words, there are no rules that prescribe that the exception must be invoked in the solicitation documents or that the government must do so at a precise moment in time or before a particular deadline.
16. The Tribunal notes, as does Opsis, that, in the present case, neither the notice of proposed procurement nor the solicitation documents indicated that the national security exception had officially been invoked with respect to the subject procurement. However, the Tribunal is of the opinion that not referring to the national security exception in those documents does not entail that the invocation of the exception was not valid. According to the Tribunal’s case law, a procurement can be exempt from the scope of the AIT for national security reasons even if the solicitation documents do not refer to the application of the national security exception.10 These precedents indicate that a letter that invokes the exception and that is signed by a person who is authorized to act by virtue of the powers that have been delegated to that person by the Minister of PWGSC can be sufficient to constitute a proper and timely invocation of the national security exception by the Government of Canada.
17. The Tribunal is therefore of the opinion that the government need not invoke the exception or announce it publicly in the solicitation documents. The relevant case law indicates rather that the national security exception can be invoked by the Government at any time before the end of the procurement process and that parties can be informed only after the filing of a complaint with the Tribunal.11
18. In accordance with these precedents, the Tribunal must ensure that the national security exception invoked by Mr. Ring, in his letter of August 6, 2010, that is, an invocation of the exception that was made before the filing of the complaint and the issuance of the solicitation documents, concerns the subject procurement. The Tribunal must also be satisfied that the exception was invoked by a duly authorized person.
19. With regard to the first issue, the Tribunal is of the opinion that the national security exception invoked in Mr. Ring’s letter can reasonably be interpreted to refer to the services that are the subject of the complaint and to the subject procurement. The Tribunal notes that Mr. Ring’s letter states that the exception concerns “. . . any future procurements of supercomputers and the facilities to house them.” The Tribunal is of the opinion that this statement is sufficiently broad and general to reasonably concern and include future procurements relating to the facilities that house the supercomputers, that is, the Canadian Meteorological Centre in Dorval, as well as future government procurements relating to the possible acquisition of new supercomputers and to the facilities to house them, whether they be located in Dorval or elsewhere.
20. The Tribunal therefore accepts PWGSC’s arguments that the wording of the August 6, 2010, letter meant to exempt from the scope of the AIT all future procurements relating to the facilities that house the supercomputers whose operation is necessary to protect Canada’s interests in respect of national security. Since the exception concerns all future procurements relating to those facilities, it necessary applies, according to the Tribunal, to the procurement of qualified labour for the operation, maintenance and performance of minor repairs at those facilities. The Tribunal notes that the subject Request for Proposal provided that the contractor’s responsibilities relating to that service involve the operation, maintenance and repair of the mechanical, electrical and architectural systems of the building in Dorval, services that are clearly related to the facilities. As well, the subject procurement clearly indicate that those services must be provided while maintaining, at the same time, all operational, computer, development, research and administrative activities of the Canadian Meteorological Centre in Dorval. While there may be other contracts in place for aspects relating to those facilities, this does not take away from the fact that the subject services do relate to the facilities in Dorval. Therefore, the Tribunal finds that the exception invoked on August 6, 2010, is specific to the context of the present complaint that involves a procurement for the maintenance and operation of the mechanical and electrical systems of the Canadian Meteorological Centre in Dorval, including the maintenance of the mechanical, electrical and architectural systems of the building or of that facility, as well as minor repairs.12
21. As submitted by PWGSC, the Tribunal also notes that, according to the evidence, there were also invocations of the national security exception prior to 2010 that concerned the facilities in Dorval and that were as well related to the supercomputers and the work on the building’s systems, the electrical systems in particular. The Tribunal is of the opinion that this indicates that the Government has had national security concerns with respect to the facilities of the Canadian Meteorological Centre in Dorval or to the services relating to those facilities for a number of years. Having examined all the evidence before it, the Tribunal finds that, contrary to the allegations made by Opsis, PWGSC’s intention was to exempt the subject procurement from the scope of the AIT by means of its August 6, 2010, letter.
22. Furthermore, the Tribunal notes that, according to the evidence submitted by PWGSC in support of its motion, Mr. Ring invoked the national security exception on August 6, 2010, as Assistant Deputy Minister of the Acquisitions Branch of PWGSC. In the Tribunal’s opinion, Mr. Ring holds a position that confers upon him the ability to invoke the national security exception of the trade agreements, as a result of the authority delegated by the Government of Canada on the Minister of PWGSC under section 6 of the Department of Public Works and Government Services Act,13 in conjunction with paragraph 24(2)(d) of the Interpretation Act.14 In any event, the Tribunal notes that Opsis did not challenge Mr. Ring’s authority to invoke the national security exception on behalf of the Government of Canada.
23. As such, the Tribunal is satisfied that the national security exception was invoked properly and in a timely fashion by the Government of Canada in this case.
24. The Tribunal finds that the subject procurement is therefore exempt from the provisions of the AIT for national security reasons. Given that none of the trade agreements applies, the Tribunal finds that the complaint does not concern a “designated contract”, as prescribed by subsection 30.11(1) of the CITT Act. Therefore, the Tribunal does not have jurisdiction to continue its inquiry into the complaint.
25. Since the Tribunal, having considered the provisions of the AIT and the CITT Act, has determined that it does not have jurisdiction to inquire into the complaint, it must find that the complaint has no valid basis and cease its inquiry. Therefore, the Tribunal allows PWGSC’s motion and dismisses the complaint pursuant to paragraph 10(a) of the Regulations.
TRIBUNAL’S ORDER
26. The Tribunal finds that it does not have jurisdiction to continue its inquiry into the complaint and, therefore, pursuant to paragraph 10(a) of the Regulations, dismisses the complaint.
1 . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].
2 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].
3 . S.O.R./93-602 [Regulations].
4 . In this regard, the Tribunal notes that the value of this contract is $739,452.65, which is below the applicable monetary thresholds under the other trade agreements. Furthermore, the complaint only concerns alleged breaches of provisions of the AIT.
5 . Complaint, exhibits P-1 and P-8.
6 . Re Complaint Filed by Lotus Development Canada Limited (14 August 1998), PR-98-005, PR-98-006 and PR-98-009 (CITT) [Lotus Development] at 11.
7 . Re Complaint Filed by International Safety Research Inc. (14 June 2006), PR-2006-007 (CITT) [International Safety Research] at 1.
8 . Lotus Development at 11.
9 . Ibid.
10 . International Safety Research at 1; Re Complaint Filed by Foundry Networks Inc. (19 March 2003), PR-2002-064 (CITT) at 2; Re Complaint Filed by Comtrex Communications Inc. (12 February 2007), PR-2006-037 (CITT).
11 . Ibid.
12 . Complaint, exhibit P-2, Request for Proposal, Annex B, “Statement of Work/General Requirements”, Labour Services for Maintenance and Operation of Mechanical and Electrical Systems”, at 4.
13 . S.C. 1996, c. 16.
14 . R.S.C. 1985, c. I-21.