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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

BALL HARRISON HANSELL EMPLOYEE BENEFITS INSURANCE AGENCY LTD.

AGAINST

THE CANADA LANDS COMPANY LTD.

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.

Jason W. Downey
Jason W. Downey
Presiding Member

Dominique Laporte
Dominique Laporte
Secretary

The statement of reasons will be issued at a later date.

1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act¹ 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 solicitation by Canada Lands Company Ltd. (CLCL) for the provision of services by an employee benefits consultant.

3. Ball Harrison Hansell Employee Benefits Insurance Agency Ltd. (BHH) alleged that CLCL was negligent by disregarding the Request for Proposal process when it refused to provide a debriefing to BHH.

4. Subsection 30.11(1) of the CITT Act allows a potential supplier to “. . . file a complaint with the Tribunal concerning any aspect of the procurement process that relates to a designated contract . . . .”

5. In addition, subsection 7(1) of the Regulations sets out three conditions which must be met for the Tribunal to decide to conduct an inquiry in respect of a complaint. One of the conditions is that the complaint be in respect of a designated contract.

6. Section 30.1 of the CITT Act defines “designated 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”. It also defines “government institution” as “. . . any department or ministry of state of the Government of Canada, or any other body or office, that is designated by the regulations”.

7. In this respect, subsection 3(2) of the Regulations designates, as government institutions, the federal government entities or government enterprises set out in the following parts of potentially applicable trade agreements: the Schedule of Canada in Annex 1001.1a-1 and Annex 1001.1a-2 of the North American Free Trade Agreement;³ under the heading “CANADA” in Annex 502.1A of the Agreement on Internal Trade;⁴ under the heading “CANADA” in Annex 1 and Annex 3 of the Agreement on Government Procurement;⁵ the Schedule of Canada in Annex Kbis-01.1-1 and Annex Kbis-01.1-2 of Chapter Kbis of the Canada-Chile Free Trade Agreement;⁶ the Schedule of Canada in Annex 1401.1-1 and Annex 1401.1-2 of Chapter Fourteen of the Canada-Peru Free Trade Agreement;⁷ and the Schedule of Canada in Annex 1401-1 and Annex 1401-2 of Chapter Fourteen of the Canada-Colombia Free Trade Agreement.⁸

8. The Tribunal notes that the solicitation at issue concerns a contract for the procurement of services by CLCL. The Tribunal further notes that CLCL is not listed in any of the relevant schedules or annexes of any of the trade agreements. In addition, CLCL is expressly excluded from the coverage of Chapter Five of the AIT pursuant to Annex 502.2A. The Tribunal therefore finds that CLCL is not a covered federal government entity or government enterprise as described in the agreements and, as such, is not a “government institution” within the meaning of section 30.1 of the CITT Act.

9. For this reason, the Tribunal finds that the contract to which this procurement process relates is not a designated contract.

10. Given that the procurement at issue does not relate to a designated contract, the Tribunal does not have jurisdiction to inquire into the complaint and considers the matter closed.

DECISION

11. 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).

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>.

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). 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).

⁸ . Free Trade Agreement between Canada and the Republic of Colombia, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-... (entered into force 15 August 2011).