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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

A. SALARI

AGAINST

THE CORRECTIONAL SERVICE OF CANADA

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.

Diane Vincent
Diane Vincent
Presiding Member

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. 21807-7-0071) by the Correctional Service of Canada (CSC) for the provision of dental services at various institutions in British Columbia.

3. Dr. A. Salari alleges that there was discrimination in the administration of the selection process, as the contract was awarded to the same contractors that had previously won the contract. Dr. Salari also alleges that CSC improperly rejected his proposal.

4. 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.”

5. 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.”

6. 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 Article 502 of the Agreement on Internal Trade,⁴ Article I of the Agreement on Government Procurement,⁵ Article Kbis-01 of Chapter Kbis of the Canada-Chile Free Trade Agreement ⁶ or Chapter 14 of the Canada-Peru Free Trade Agreement.⁷

7. The Tribunal notes that the procurement at issue is for the provision of dental services and that, according to the Notice of Proposed Procurement included with the complaint, the services are classified as a subset of “G009 Other Health Services”, under Category G of the Common Classification System.⁸ Category G of the Common Classification System is entitled “Health and Social Services”. Thus, dental services are a subset of the broader category of health services. As such, the Tribunal considers that this procurement is for health services.

8. Annex 1001.1b-2 of NAFTA, Annex Kbis-01.1-4 of the CCFTA and Annex 1401.1-4 of the CPFTA, which use the Common Classification System for classifying services, exclude all classes of services under Category G, “Health and Social Services”, from their respective coverage.

9. Paragraph 1(a) of Annex 502.1B of the AIT excludes “services that may, under the applicable laws of the Party issuing the tender, only be provided by the following licensed professionals: medical doctors, dentists, nurses, pharmacists, veterinarians, engineers, land surveyors, architects, accountants, lawyers and notaries” from coverage. In addition, paragraph 1(e) of Annex 502.1B of the AIT specifically excludes coverage for health services and social services.

10. Annex 4 of Canada’s Appendix 1 to the AGP, which provides a listing of services that Canada offers for coverage, does not include any health services.

11. The Tribunal finds that health services are not subject to any of the trade agreements mentioned above. For this reason, the solicitation in question is not for the procurement of goods or services covered in these trade agreements. Therefore, the Tribunal lacks the jurisdiction to initiate an inquiry into the complaint, since it concerns a procurement process that does not relate to a “designated contract” as this term is defined above.

DECISION

12. 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 . Free Trade Agreement between Canada and the Republic of Peru, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-... (entered into force 1 August 2009) [CPFTA].

⁸ . http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-....