TRITECH GROUP LTD.
TRITECH GROUP LTD.
File No. PR-2013-036
Decision made
Friday, January 31, 2014
Decision issued
Friday, January 31, 2014
Reasons issued
Monday, February 10, 2014
IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.).
BY
TRITECH GROUP LTD.
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.
Serge Fréchette
Serge Fréchette
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 procurement (Solicitation No. F1700-130429/B) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Fisheries and Oceans for the fabrication and provision of aluminum frame members. The solicitation documents indicate that this procurement is set aside for aboriginal suppliers in accordance with the federal government's Procurement Strategy for Aboriginal Business.
3. Tritech Group Ltd. (Tritech) alleged that PWGSC improperly declared its proposal non-compliant and disqualified it from the procurement process.
4. 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” [emphasis added]. Further, subsection 7(1) of the Regulations states that three conditions must be met before the Tribunal can inquire into a complaint. According to one of these conditions, a complaint must be in respect of a “designated contract”.
5. Section 30.1 of the CITT Act defines the term “designated contract” as follows:
“designated contract” means 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. Subsection 3(1) of the Regulations provides the following:
For the purposes of the definition “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 [AIT,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] in Article 1401 of Chapter Fourteen of the [Canada-Columbia Free Trade Agreement8] or in Article 16.02 of Chapter Sixteen of the [Canada-Panama Free Trade Agreement,9] that has been or is proposed to be awarded by a government institution, is a designated contract.
7. The Tribunal is of the view that this complaint is not in respect of a contract subject to any of the trade agreements and, accordingly, is not in respect of a “designated contract”.
8. Article 1802 of the AIT reads as follows:
This Agreement does not apply to any measure adopted or maintained with respect to Aboriginal peoples.
9. The procurement process that is the subject of this complaint is clearly part of measures10 adopted or maintained with respect to Aboriginal peoples. Pursuant to Article 1802 of the AIT, no provision of this trade agreement, including the provisions of Chapter Five on government procurement, applies to such measures. Thus, the procurement at issue is not subject to the AIT.
10. Turning to the other trade agreements, the Tribunal notes that paragraph 1(d) of Annex 1001.2b to NAFTA, paragraph 1(d) of the General Notes for Canada to the AGP, paragraph 1(d) of Annex Kbis-01.1-6 to the CCFTA, paragraph 1(d) of Annex 1401.1.-6 to the CPFTA, paragraph 1(4) of Annex 1401-6 to the CCOFTA, and paragraph 1(d) of Annex 7 of the CPAFTA all exclude “set-asides for small and minority businesses” from their scopes of coverage.
11. Consistent with previous jurisprudence,11 the Tribunal is of the view that a procurement made in the context of a set-aside program for aboriginal businesses constitutes a procurement for small and minority businesses. Accordingly, by virtue of the aforementioned provisions, the procurement at issue is not covered by NAFTA, the AGP, the CCFTA, the CPFTA, the CCOFTA or the CPAFTA.
12. Given that none of the relevant trade agreements applies to the procurement in issue, the Tribunal finds that the complaint is not in respect of a “designated contract”, as is required by subsection 30.11(1) of the CITT Act. Accordingly, the Tribunal does not have jurisdiction to inquire into this complaint.
13. In view of the foregoing, the Tribunal will not conduct an inquiry into the complaint.
DECISION
14. 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, c. 47 (4th Supp.) [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 . Free Trade Agreement between Canada and the Republic of Panama, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-... (entered into force 1 April 2013).
10 . Article 200 of the AIT defines “measure” as including “any legislation, regulation, directive, requirement, guideline, program, policy, administrative practice or other procedure.”
11 . See, for example, LeClair INFOCOM Inc. (26 January 2010), PR-2009-076 at para. 14; Avaya Canada Corp. (26 October 2011), PR-2011-040 at para. 14.