ADLERHORST INTERNATIONAL, INC.
ADLERHORST INTERNATIONAL, INC.
File No. PR-2012-034
Decision made
Tuesday, December 18, 2012
Decision and reasons issued
Thursday, December 20, 2012
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
ADLERHORST INTERNATIONAL, 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.
Jason W. Downey
Jason W. Downey
Presiding Member
Dominique Laporte
Dominique Laporte
Secretary
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 procurement by the Department of Public Works and Government Services (PWGSC), on behalf of another government institution, for the provision of certain services. Further details regarding the procurement cannot be provided as the Request for Standing Offer (RFSO) issued by PWGSC states, in no uncertain terms, that the solicitation is confidential and that its details are not to be disclosed.
3. Adlerhorst International, Inc. (Adlerhorst) alleges that it was unfairly excluded from the solicitation by PWGSC.
4. As noted above, subsection 30.11(1) of the CITT Act provides that 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. Section 30.1 of the CITT Act defines the term “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.”
5. Subsection 3(1) of the Regulations designates, for the purposes of the definition of “designated contract” in section 30.1 of the CITT Act, “. . . any contract or class of contract concerning a procurement of goods or services or any combination of goods or services, as described in Article 1001 of [the North American Free Trade Agreement],[3] in Article 502 of the Agreement on Internal Trade,[4] in Article I of the Agreement on Government Procurement,[5] in Article Kbis-01 of Chapter Kbis of the [Canada-Chile Free Trade Agreement],[6] in Article 1401 of Chapter Fourteen of the [Canada-Peru Free Trade Agreement][7] or in Article 1401 of Chapter Fourteen of the [Canada-Colombia Free Trade Agreement],[8] that has been or is proposed to be awarded by a government institution . . . .”
6. However, Article 1018(1) of NAFTA, Article 1804 of the AIT, Article XXIII(1) of the AGP, Article Kbis-16(1) of the CCFTA, Article 1402(1) of the CPFTA and Article 1402(1) of the CCOFTA allow exceptions to the provisions of the respective trade agreements where national security is involved.
7. In this regard, Article 6 of Part 1, “GENERAL INFORMATION”, of the RFSO provides as follows:
6. NATIONAL SECURITY EXCEPTION
This procurement is subject to the National Security Exception and is excluded from the trade agreements in accordance with the following Articles: XXIII(1) of the World Trade Organization-Agreement on Government Procurement (WTO-AGP), 1018(1) of the North American Free Trade Agreement (NAFTA) and 1804 of the Agreement on Internal Trade (AIT). . . .
8. The Tribunal therefore finds, as it did in similar previous cases,9 that the procurement at issue, being subject to a national security exception, is exempt from the provisions of the relevant trade agreements.10 That being the case, the Tribunal finds that the complaint does not relate to a “designated contract”, as is required by subsection 30.11(1) of the CITT Act. Accordingly, the Tribunal does not have jurisdiction to conduct an inquiry into the complaint.
9. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaint and considers the matter closed.
DECISION
10. Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.
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-... chapter-chapitre-14.aspx> (entered into force 1 August 2009) [CPFTA].
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) [CCOFTA].
9 . Re Complaint Filed by Corporate Special Events Catering Inc., d.b.a. BBQ Catering (3 June 2010), PR-2010-015 (CITT); Re Complaint Filed by Integrys Ltd. (5 March 2010), PR-2009-103 (CITT); Re Complaint Filed by International Safety Research Inc. (14 June 2006), PR-2006-007 (CITT).
10 . The Tribunal notes that, while the above-cited provision of the RFSO does not explicitly refer to the CCFTA, the CPFTA or the CCOFTA, it can reasonably be assumed that PWGSC intended to exclude the procurement from those agreements as well. In any event, as Adlerhorst is a US-based company and does not appear to have a place of business in Canada, the only agreements that could apply are NAFTA and the AGP, both of which are specifically mentioned in the RFSO.