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TABLE OF CONTENTS

• ORDER
• STATEMENT OF REASONS
  • COMPLAINT
  • TRIBUNAL'S ANALYSIS
  • ORDER OF THE TRIBUNAL

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IN THE MATTER OF a complaint filed by Flag Connection Inc. pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.);

AND FURTHER TO a decision to conduct an inquiry 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 December 20, 2013, pursuant to rule 24 of the Canadian International Trade Tribunal Rules, requesting an order that the Canadian International Trade Tribunal cease to conduct the inquiry.

BETWEEN

FLAG CONNECTION INC. Complainant

AND

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES Government Institution

Pursuant to subsection 30.13(5) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal hereby ceases its inquiry into the complaint and terminates all proceedings relating thereto. No costs shall be awarded to either party.

Ann Penner
Ann Penner
Presiding Member

Dominique Laporte
Dominique Laporte
Secretary

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

COMPLAINT

1. On December 4, 2013, Flag Connection Inc. (Flag Connection) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11(1) of the Canadian International Trade Tribunal Act¹ concerning a Request for Proposal (RFP) (Solicitation No. B8817-120110/A) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Citizenship and Immigration for the provision of Canadian flags for promotional use.²

2. Flag Connection complained that its bid was not assessed in accordance with the terms of the RFP.³ Specifically, it alleged that its sample flag was not evaluated according to the applicable technical requirements of the RFP. Flag Connection argued that, had the sample flag been properly evaluated, its bid would have been compliant.⁴ Flag Connection requested that the Tribunal order PWGSC to award it the contract, as well as costs.

3. The Tribunal accepted Flag Connection's complaint for inquiry on December 9, 2013, pursuant to subsection 30.13(1) of the CITT Act.⁵

4. On December 20, 2013, PWGSC filed a motion pursuant to rule 24 of the Canadian International Trade Tribunal Rules⁶ requesting that the Tribunal order the cessation of its inquiry on the basis that the RFP that was the subject of Flag Connection's complaint had been cancelled and re-issued as Solicitation No. B8817-120110/B (the new solicitation).⁷ PWGSC also underscored the fact that the RFP gave it the right to cancel the procurement at any time.⁸

5. Though given the opportunity to respond, Flag Connection did not submit any comments to the Tribunal on PWGSC's motion.⁹

TRIBUNAL'S ANALYSIS

6. Pursuant to subsection 30.13(5) of the CITT Act, the Tribunal may, at any time, cease an inquiry “. . . if it is of the opinion that the complaint is trivial . . . .” The ordinary meaning of “trivial” is “. . . concerned only with . . . unimportant matters.”¹⁰

7. The Tribunal has repeatedly held that the cancellation and re-tendering of a solicitation provides the remedy sought by complainants and effectively renders a complaint moot or “unimportant”. In other words, the cancellation and re-tendering of a solicitation qualifies a complaint as trivial.¹¹

8. In this case, the Tribunal inferred from Flag Connection's lack of response to PWGSC's motion that it consented to the cessation of the inquiry, thereby indicating that this inquiry is now “unimportant” or “trivial”.

9. Moreover, in the event that Flag Connection submitted a bid in response to PWGSC's new solicitation, it will have an opportunity to have its sample re-evaluated by PWGSC. Flag Connection may therefore obtain its desired remedy, as its new bid will be evaluated by PWGSC in due course.

10. For both of these reasons, the Tribunal has decided to cease its inquiry into the complaint.

11. Should Flag Connection take issue with the procurement process of the new solicitation, nothing in the present order would prevent Flag Connection from filing a new complaint with the Tribunal in the future.

ORDER OF THE TRIBUNAL

12. Pursuant to subsection 30.13(5) of the CITT Act, the Tribunal hereby ceases its inquiry into the complaint and terminates all proceedings relating thereto. No costs shall be awarded to either party.

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¹ . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].

² . Exhibit PR-2013-026-01, Vol. 1.

³ . This complaint concerns the same procurement as that considered by the Tribunal in Flag Connection Inc. (8 November 2013), PR-2013-021 (CITT). In that case, the Tribunal deemed Flag Connection's complaint premature.

⁴ . Exhibit PR-2013-026-01, Vol. 1 at 58.

⁵ . Exhibit PR-2013-026-04, Vol. 1.

⁶ . S.O.R./91-499.

⁷ . Exhibit PR-2013-026-11, Vol. 1.

⁸ . Ibid., Vol. 1 at 1.

⁹ . Exhibit PR-2013-026-13, Vol. 1.

¹⁰ . Shorter Oxford English Dictionary, 5th ed., s.v. “trivial”.

¹¹ . See, most recently, Offshore Systems Ltd. v. Department of Public Works and Government Services (28 November 2012), PR-2012-022 (CITT); Gear Up Motors v. Department of Public Works and Government Services (26 November 2012), PR-2012-024 (CITT). See, also, Det Norske Veritas (Canada) Ltd. v. Department of Public Works and Government Services (11 March 2011), PR-2010-084 (CITT); Tyco International of Canada o/a SimplexGrinnell v. National Research Council of Canada (2 February 2011), PR-2010-081 (CITT); Enterasys Networks of Canada Ltd. v. Department of Public Works and Government Services (10 November 2010), PR-2010-069 (CITT).