KNOWLEDGE CIRCLE LEARNING SERVICES INC.
KNOWLEDGE CIRCLE LEARNING SERVICES INC.
v.
DEPARTMENT OF HEALTH
File No. PR-2013-014
Determination and reasons issued
Monday, January 13, 2014
IN THE MATTER OF a complaint filed by Knowledge Circle Learning Services 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.
BETWEEN
KNOWLEDGE CIRCLE LEARNING SERVICES INC. Complainant
AND
THE DEPARTMENT OF HEALTH Government Institution
Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is valid.
Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal recommends that the Department of Health compensate Knowledge Circle Learning Services Inc. for its lost opportunity. The Canadian International Trade Tribunal recommends that Knowledge Circle Learning Services Inc. and the Department of Health negotiate the amount of that compensation and, within 30 days of the date of this determination, report back to the Canadian International Trade Tribunal on the outcome of the negotiations.
Should the parties be unable to agree on the amount of compensation, Knowledge Circle Learning Services Inc. shall file with the Canadian International Trade Tribunal, within 40 days of the date of this determination, a submission on the issue of compensation. The Department of Health will then have 7 working days after the receipt of Knowledge Circle Learning Services Inc.'s submission to file a response. Knowledge Circle Learning Services Inc. will then have 5 working days after the receipt of the Department of Health's reply submission to file any additional comments. Counsel are required to serve each other and file with the Canadian International Trade Tribunal simultaneously.
Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Knowledge Circle Learning Services Inc. its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by the Department of Health. The Canadian International Trade Tribunal's preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Canadian International Trade Tribunal, as contemplated in its Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal retains jurisdiction to establish the final amount of the cost award and compensation.
Ann Penner
Ann Penner
Presiding Member
Dominique Laporte
Dominique Laporte
Secretary
Tribunal Member: Ann Penner, Presiding Member
Counsel for the Tribunal: Eric Wildhaber
Alexandra Pietrzak
Procurement Case Officer: Josée B. Leblanc
Complainant: Knowledge Circle Learning Services Inc.
Counsel for the Complainant: Michael Rankin
Jonathan O'Hara
Government Institution: Department of Health
Counsel for the Government Institution: Aileen Jones
Please address all communications to:
The Secretary
Canadian International Trade Tribunal
15th Floor
333 Laurier Avenue West
Ottawa, Ontario K1A 0G7
Telephone: 613-993-3595
Fax: 613-990-2439
E-mail:
COMPLAINT
1. On September 5, 2013, Knowledge Circle Learning Services Inc. (Knowledge Circle) 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 Standing Offer (RFSO) (Reference No. 123728) by the Department of Health (Health Canada). The RFSO sought part-time/full-time (private) French language training services for Health Canada employees off-site (i.e. at vendor office locations) within the National Capital Region on an “as and when requested” basis.
2. Knowledge Circle complained that Health Canada improperly extended 6 of the 10 Standing Offer Agreements (SOAs) for French language training services beyond the maximum duration specified in the RFSO and the original 10 SOAs. According to Knowledge Circle, these extensions constituted new procurements which were not subject to a competitive procurement process as required by various trade agreements. Knowledge Circle alleged that it was unlawfully denied the opportunity to compete for, and earn profit from, these new procurements.
3. Knowledge Circle requested, as a remedy, that the Tribunal recommend that Health Canada compensate it for its lost opportunity to earn profit.
4. On September 11, 2013, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.2
5. On October 17, 2013, Health Canada filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules.3 On October 29, 2013, Knowledge Circle filed its comments on the GIR.
6. On November 4, 2013, Health Canada wrote to the Tribunal in response to new issues that Knowledge Circle had raised in its comments on the GIR and requested that the Tribunal place those comments onto the record. On the same day, Knowledge Circle informed the Tribunal that it had no objection to the additional comments made by Health Canada and provided an additional response.
7. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that a hearing was not required and disposed of the complaint on the basis of the written information on the record.
PROCUREMENT PROCESS
8. On August 4, 2006, Health Canada published on MERX an RFSO for the provision of French language training services for its employees. The closing date for the RFSO was October 10, 2006.
9. In January and February 2007, Health Canada awarded SOAs to 10 suppliers, including Knowledge Circle.
10. The Statement of Work (SOW) in the RFSO provided that all 10 SOAs were intended to be in place for three years, with the possibility that each one could be given two one-year extensions for a maximum duration of five years. Part I of the SOW provides as follows:
1.0 Scope
. . .
1.3 Estimated Value
. . .
Each SOA is for an initial period of three (3) years from date of award of the Agreement with two (2) one-year options that may be exercised at Health Canada's sole discretion for a total duration not to exceed five (5) years. . . .
11. On January 29, 2010, Health Canada exercised its first option to extend all 10 SOAs for one year by issuing amendment No. 1, which provided as follows:
A2.0 Date of Completion of Work and Description of Work
A2.1 Delete: 28 February, 2010
Insert: 28 February, 2011
A2.2 Delete: an additional two (2) one year periods ending 28 February 2012
Insert: an additional one (1) year period ending 28 February 2012
12. In addition to extending the duration of all 10 SOAs, between January and February 2010, Health Canada imposed maximum dollar amounts or “caps” in order to limit the total cost that each supplier could seek from its SOA.
13. On January 31, 2011, Health Canada exercised the second option to extend 8 of the 10 SOAs for another one-year period by issuing amendment No. 2, which provided as follows:
A2.0 Date of Completion of Work and Description of Work
A2.1 Delete: 28 February, 2011
Insert: 28 February, 2012
A2.2 Delete: in its entirety
Knowledge Circle's SOA was not extended under amendment No. 2.
14. On January 31, 2012, Health Canada issued amendment No. 3 to extend six SOAs for another year and increase the total costs that could be charged. Amendment No. 3 provided as follows:
A2.0 Date of Completion of Work and Description of Work
A2.1 Delete: 28 February, 2012
Insert: 28 February, 2013
A2.2 Delete: in its entirety
Once again, Knowledge Circle's SOA was not extended under amendment No. 3.
15. Finally, on February 27, 2013, Health Canada issued amendment No. 4 to extend the same six SOAs for an additional six months. Amendment No. 4 provided as follows:
A2.0 Date of Completion of Work and Description of Work
A2.1 Delete: 28 February, 2013
Insert: 30 August, 2013
As with amendment Nos. 2 and 3, Knowledge Circle's SOA was not extended under amendment No. 4.
16. The issues in this complaint relate to amendment No. 3, in which six SOAs were extended for one year, and amendment No. 4, in which all six SOAs were extended for a further six months (together, the SOAs in issue).
OBJECTIONS BY KNOWLEDGE CIRCLE
17. According to the complaint, in early 2012, Knowledge Circle learned that Health Canada was continuing to award French language training contracts to its competitors (hereinafter, the additional contracts), even though the maximum five-year period set out in the SOW had expired. Knowledge Circle indicated that it was confused by the fact that Health Canada's proactive disclosure on its Web site indicated that the additional contracts were being awarded on a competitive basis.4
18. On December 4, 2012, in the midst of settlement discussions regarding an unrelated issue, Knowledge Circle asked Health Canada to clarify how and why the additional contracts were being awarded, as it was unaware that any other bid solicitations had been issued since the original RFSO.
19. On December 24, 2012, Health Canada responded that the settlement discussions were not “. . . an appropriate forum to raise new and unrelated issues.”5 As a result, Health Canada declined to provide information regarding the additional contracts at that time.
20. On March 12, 2013, counsel for Knowledge Circle filed an Access to Information (ATI) request to understand more about the competitive basis on which Health Canada was awarding the additional contracts.
21. On June 28, 2013, Knowledge Circle received the requested ATI documents.
22. On July 15, 2013, Knowledge Circle made an objection to Health Canada. As no response was received, Knowledge Circle sent a follow-up letter on August 13, 2013, requesting that Health Canada respond by August 21, 2013. Knowledge Circle also indicated that, if a response was not received by August 21, 2013, it would interpret Health Canada's silence as a “denial of relief” and proceed with a complaint to the Tribunal.
23. On September 5, 2013, having not received a response from Health Canada, Knowledge Circle filed its complaint with the Tribunal.
POSITIONS OF PARTIES
Knowledge Circle
24. Knowledge Circle alleged that amendment Nos. 3 and 4 improperly extended the SOAs in issue because they were awarded in contravention of the term limitations set out in both the RFSO and the amendments themselves. According to Knowledge Circle, these improper extensions constituted new procurements and breached Article IX of the Agreement on Government Procurement,6 Article 1010 of the North American Free Trade Agreement7 and Article 506 of the Agreement on Internal Trade,8 as it was denied the opportunity to compete for, and earn a profit from, the resulting awards.
Health Canada
25. Health Canada acknowledged that the term limits of the original RFSO had expired on February 28, 2012.9 Nevertheless, it argued that amendment Nos. 3 and 4 were not new procurements and were therefore not in breach of the relevant trade agreements.
26. Instead, Health Canada submitted that amendment Nos. 3 and 4 were in response to plans that the Department of Public Works and Government Services (PWGSC) had begun to develop in 2008. Health Canada argued that, once it learned that PWGSC planned to issue a National Master Standing Offers (NMSO) for language training services across all government departments with a target date of April 2010, the SOAs in issue had to be extended to bridge the gap until the NMSO was ready. It, therefore, maintained as follows:
. . . the SOA amendments which exclusively extended the period of the SOAs for a limited and rationally-based period of time were a matter of contract administration and did not constitute a new procurement process.10
27. Alternatively, Health Canada suggested that, if the extensions of the SOAs in issue did indeed constitute new procurements, such procurements did not breach the relevant trade agreements because “. . . they were intended to bridge an unforeseen, temporary gap between the Health Canada competitive process and that undertaken by Public Works.”11 As such, Health Canada contended that the extensions of the SOAs in issue were necessary in order to maintain the provision of French language training services and were thereby consistent with the objectives of the trade agreements.
TRIBUNAL ANALYSIS
Timeliness
28. As a preliminary matter, Health Canada suggested, in the GIR, that Knowledge Circle's complaint was not timely. Specifically, Health Canada alleged that Knowledge Circle knew in December 2012 that no new RFSO for the provision of language training services had been issued since August 2006 and that additional contracts continued, however, to be awarded to Knowledge Circle's competitors. Therefore, Health Canada argued that Knowledge Circle should have reasonably known the grounds of its complaint by December 2012. Given that Knowledge Circle did not file its complaint until September 2013, Health Canada asserted that it could not be accepted for inquiry by the Tribunal.
29. The Tribunal does not accept Health Canada's position on this matter. It is true that Knowledge Circle was aware of both the expiration date of the RFSO and the award of additional contracts to its competitors. However, Health Canada's own proactive disclosure on its Web site indicated that the contracts were being awarded on a competitive basis.12 While Knowledge Circle may have been concerned about the nature of these additional contracts, it was in no way obligated to assume that Health Canada awarded these additional contracts in the manner in which it did.
30. Moreover, as discussed above, when Health Canada ostensibly extended the SOAs in issue by issuing amendment Nos. 3 and 4, Knowledge Circle did not receive an amended SOA. Knowledge Circle was not therefore privy to the existence of amendment Nos. 3 and 4, let alone their contents. Because information was not conveyed to Knowledge Circle until its ATI request was granted on June 28, 2013, the Tribunal finds that Knowledge Circle only became aware of its ground of complaint on that date. Knowledge Circle's objection letter of July 15, 2013, was therefore timely, and it acted reasonably in sending a follow-up letter on August 13, 2013, and in requesting a response from Health Canada by August 21, 2013.
31. In light of the above, the Tribunal finds that Knowledge Circle's complaint was indeed filed in a timely manner.
Alleged Breach of the Trade Agreements
32. Subsection 30.14(1) of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of the complaint. Furthermore, at the conclusion of the inquiry, the Tribunal must determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been observed. Section 11 of the Regulations further provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, in this instance, are NAFTA, the AIT, the Canada-Chile Free Trade Agreement,13 the Canada-Peru Free Trade Agreement,14 the Canada-Colombia Free Trade Agreement15 and the Canada-Panama Free Trade Agreement.16
33. The Tribunal has determined that the AGP does not cover French language training services and, therefore, is not applicable in this case.
34. In its response to the complaint brought by Knowledge Circle, in its GIR, Health Canada argued that it had not violated its obligations under the trade agreements on two grounds. In particular, it argued that extensions of the SOAs in issue were distinguishable from other decisions in which the Tribunal found that such extensions constituted contracts which should have been the basis of a new procurement process. In the alternative, Health Canada stated that amendments of the SOAs in issue were necessary in order to meet operational requirements for a temporary period and were therefore consistent with the objectives of the trade agreements.
35. With respect to the initiation of new procurements, Article 1010 of NAFTA states that “1. Except as otherwise provided in Article 1016, an entity shall publish an invitation to participate for all procurements in accordance with paragraphs 2, 3 and 5, in the appropriate publication referred to in Annex 1010.1.” The CCFTA, the CPFTA, the CCOFTA and the CPAFTA contain provisions similar to those of NAFTA. Similarly, Article 506(1) of the AIT requires that each new procurement be the subject of an open procurement process, except in certain limited circumstances.
36. The Tribunal has previously found that, except for limited situations, Article 1010 of NAFTA and Article 506(1) of the AIT require an invitation to participate to be published whenever a government institution seeks to acquire or continue services that are not provided for under an ongoing contract. For instance, in Tendering Publications Limited,17 the Tribunal found that an extension of a contract beyond the contract expiry date constitutes a new procurement that should be subject to an invitation to participate.
37. Health Canada attempted to distinguish Tendering Publications from this case since the amendment at issue in Tendering Publications extended the contract and also made other administrative changes. In contrast, it maintained that the terms of the SOAs in issue remained the same but for the extended expiry dates and the incidental increase in the costs.18
38. In response, the Tribunal finds that the number or degree of administrative changes made to a contract is immaterial to this case. The salient point for this complaint remains the fact that amendment Nos. 3 and 4 extended the SOAs in issue well beyond their expiry dates—a full 18 months beyond the expiry dates set out in the RFSO. As a result, amendment Nos. 3 and 4, in and of themselves, created new procurements which should have been undertaken in a manner consistent with the obligations of the relevant trade agreements.
39. Health Canada also maintained that the present complaint is distinguishable from Tendering Publications since, in that case, the Tribunal found that the two-year extension to the contract was not “. . . a carefully thought-out time period”,19 whereas the extensions to the SOAs in issue were done in response to Health Canada's actual expectations of when the NMSO would be issued. Again, the Tribunal does not find this difference to be determinative. The length of the contract extensions does not alter the fact that the SOAs were extended past their expiry dates. Thus, the Tribunal finds that, as in Tendering Publications, the extensions of the SOAs in issue should have been undertaken as new procurements according to the obligations of the applicable trade agreements. Health Canada did not have the authority to extend the terms of the SOAs in issue beyond February 28, 2012, either unilaterally or through negotiations, without regard for the required procurement procedures of the applicable trade agreements.
40. The Tribunal is also not persuaded by Health Canada's alternative argument that the extensions of the SOAs in issue “. . . did not breach the trade agreements because they were intended to bridge an unforeseen, temporary gap between the Health Canada competitive process and that undertaken by Public Works.”20 Specifically, Health Canada alleged that the extensions were designed to allow Health Canada to continue to procure French language training services while it waited for the NMSO to be put in place.
41. While not explicitly stated in Health Canada's submissions, the Tribunal believes that Health Canada extended the SOAs in issue pursuant to Article 1016 of NAFTA.21 In particular, Article 1016(2)(c) seems to parallel Health Canada's contention that amendment Nos. 3 and 4 were necessary due to the delayed launch of the NMSO. Article 1016(2)(c) provides as follows:
2. An entity may use limited tendering procedures in the following circumstances and subject to the following conditions, as applicable:
. . .
(c) in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the entity, the goods or services could not be obtained in time by means of open or selective tendering procedures.
42. The Tribunal has previously interpreted the provisions of both NAFTA and the AIT very narrowly to remain consistent with the emphasis that the trade agreements place on ensuring that competition is the norm.22 Moreover, the Tribunal has established that, in cases in which limited tendering has been undertaken, the onus is on the government institution to establish that the limited tendering procedure was permitted under the particular circumstances of the case.23 The Tribunal is not satisfied that Health Canada met this burden in the case at hand.
43. Indeed, Article 1016(2)(c) of NAFTA and Article 506(1) of the AIT set out two requirements that must be met before limited tendering may be undertaken: first, there must be extreme urgency; and, second, it must be caused by unforeseeable events. In the Tribunal's view, neither condition has been met in the present complaint. With regard to the first requirement, Health Canada simply stated that “. . . there remained a need to continue to purchase . . .”24 French language training services. In the Tribunal's opinion, a need to continue to purchase such services does not rise to the level of extreme urgency, as required by the trade agreements.
44. In regard to the second requirement, on the basis of Health Canada's own submissions, the Tribunal concludes that the expiration of the SOAs in issue before the issuance of the NMSO was entirely foreseeable. According to Health Canada, PWGSC's target date for publishing the NMSO was April 2010.25 Even though PWGSC did not meet its target date, Health Canada did not take any action on the known expiration of the SOAs in issue until January 2012, approximately one month before the SOAs were set to expire and more than 18 months after it first learned of the delays in the proposed NMSO.
45. Therefore, the Tribunal finds that, given the delay with PWGSC's NMSO and the fact that Health Canada was aware of the expiry date of the SOAs in issue, the need for limited tendering was neither an unforeseeable event nor a situation of extreme urgency. As a result, the Tribunal finds that limited tendering was not reasonably required in this case.
46. As a result of the foregoing, the Tribunal finds that Health Canada did not act in a manner consistent with Article 1008(1)(b) of NAFTA, which provides that each party shall ensure that the tendering procedures of its entities are consistent with Articles 1008 to 1016. Health Canada breached Article 1008(1)(b) of NAFTA and Article 506(1) of the AIT in attempting to extend and, thus, renew the SOAs in issue. The extension of the SOAs in issue was not justified by the limited tendering provisions of Article 1016 of NAFTA or 506(11) of the AIT.
47. Consequently, the Tribunal determines that Knowledge Circle's complaint is valid.
Remedy
48. Having found the complaint to be valid, the Tribunal must now address the issue of remedy to recommend a suitable means of redressing the resulting harm to Knowledge Circle.
49. Knowledge Circle requested compensation for the lost opportunity to earn profit during the period of amendment Nos. 3 and 4. By contrast, Health Canada asserted that compensation for lost profits would not be appropriate in the circumstances and that Knowledge Circle should only be entitled to the costs of preparing its complaint.
50. In determining the appropriate remedy, the Tribunal must consider all the circumstances relevant to the procurement, as set out in subsection 30.15(3) of the CITT Act. This includes taking into account the seriousness of any deficiency in the procurement process, the degree to which the complainant was prejudiced, the degree to which the integrity and efficiency of the competitive procurement system were prejudiced, and whether the parties acted in good faith.
51. After considering the parties' arguments in the context of subsection 30.15(3) of the CITT Act, the Tribunal finds that compensation for the lost opportunity to earn profit is the appropriate remedy.
52. The Tribunal agrees with Knowledge Circle that the case at hand was plagued with serious deficiencies and breached the applicable trade agreements in a number of respects. By attempting to improperly extend the SOAs in issue beyond their mandated expiry dates, Health Canada bypassed the required procurement process altogether. Competition, transparency and fairness were thus undermined and, Knowledge Circle was seriously prejudiced in that it was denied the opportunity to bid on the subsequent opportunities.
53. In the GIR, Health Canada submitted that amendment Nos. 3 and 4 were issued in good faith.26 The Tribunal notes that, in their proactive disclosure on its Web site, Health Canada listed each of the contract extensions arbitrarily made under amendment Nos. 3 and 4 as a “[c]ompetitively sourced contract[s]”.27 This language was, at the very least, confusing. Moreover, by Health Canada's own admission, on December 4, 2012, Knowledge Circle questioned the method by which these contracts were being awarded.28 Thus, even after Knowledge Circle questioned the source of the purported contract extension in correspondence with Health Canada on December 4, 2012, Health Canada persisted in both issuing amendment No. 4 and publicly describing it as a “[c]ompetitively sourced contract”.
54. As stated above, Health Canada contended that the purported extensions of the SOAs in issue were designed to be temporary bridging measures until PWGSC had the NMSO in place.29 The Tribunal has no reason to doubt this explanation, nor find that Health Canada's conduct rises to the level of bad faith.
55. Nevertheless, regardless of Health Canada's intentions, its behaviour shows a troubling degree of carelessness and disregard for its obligations under the relevant trade agreements. The evidence clearly demonstrates that Health Canada breached its obligations by denying Knowledge Circle an opportunity to bid for what should have been two new competitive processes. This breach is further exacerbated by the fact that the unfairly extended SOAs in issue have already been fully performed. As such, any order to terminate and re-tender the contracts is meaningless.
56. Therefore, the Tribunal agrees with Knowledge Circle's request for compensation for loss of opportunity notwithstanding Health Canada's claim that compensation for lost profit is inappropriate for cases involving standing offers. As Knowledge Circle correctly points out, the remedy claimed is not for lost profit, as characterized by Health Canada, but instead for the loss of opportunity to earn profit.30
57. This is an important distinction, particularly in light of Health Canada's contention that “. . . Knowledge Circle had no entitlement to any work whatsoever under the SOA such that any claim for lost profits is entirely speculative.”31 What this argument fails to acknowledge is that the work for which Knowledge Circle claims loss of opportunity—namely, the work completed under amendment Nos. 3 and 4 of the SOAs in issue—was awarded to Knowledge Circle's competitors under invalidly extended SOAs. As stated above, the work completed under the SOAs in issue should have properly been competed through two new competitive procurement processes.
58. Knowledge Circle is therefore claiming loss of opportunity not because it was ineligible for call-ups under the SOAs in issue, but rather because it was prevented from competing in the competitive procurement processes which should have been initiated by Health Canada. Thus, given the seriousness of the deficiency in the procurement process, the degree to which Knowledge Circle was prejudiced, and the degree to which the integrity and efficiency of the competitive procurement system were prejudiced, the Tribunal finds that compensation for loss of opportunity is the appropriate remedy in this case.
Costs
59. The Tribunal awards Knowledge Circle its reasonable costs incurred in preparing and proceeding with the complaint. In determining the amount of the cost award for this complaint case, the Tribunal considered its Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline), which contemplates classification of the level of complexity of cases based on three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.
60. The Tribunal's preliminary view is that this complaint case has a complexity level corresponding to the first level of complexity referred to in Appendix A of the Guideline. The complexity of the procurement was low, in that it related to the provision of French language training services by way of amendments to existing contracts. The complexity of the complaint was low, as it only dealt with the matter of whether or not Health Canada improperly amended the SOAs in issue. Finally, the complexity of the complaint proceedings was also low, as there was no intervener, no hearing and no additional submissions from parties.
61. Accordingly, as contemplated by the Guideline, the Tribunal's preliminary indication of the amount of the cost award is $1,000.
DETERMINATION OF THE TRIBUNAL
62. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is valid.
63. Pursuant to subsections 30.15(2) and (3) of the CITT Act, the Tribunal recommends that Health Canada compensate Knowledge Circle for its lost opportunity. The Tribunal recommends that Knowledge Circle and Health Canada negotiate the amount of that compensation and, within 30 days of the date of this determination, report back to the Tribunal on the outcome of the negotiations.
64. Should the parties be unable to agree on the amount of compensation, Knowledge Circle shall file with the Tribunal, within 40 days of the date of this determination, a submission on the issue of compensation. Health Canada will then have 7 working days after the receipt of Knowledge Circle's submission to file a response. Knowledge Circle will then have 5 working days after the receipt of Health Canada's reply submission to file any additional comments. Counsel are required to serve each other and file with the Tribunal simultaneously.
65. Pursuant to section 30.16 of the CITT Act, the Tribunal awards Knowledge Circle its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by Health Canada. The Tribunal's preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated in the Guideline. The Tribunal retains jurisdiction to establish the final amount of the cost award and compensation.
1 . R.S.C., 1985, c. 47 (4th Supp.) [CITT Act].
2 . S.O.R./93-602 [Regulations].
3 . S.O.R./91-499.
4 . Exhibit PR-2013-014-01 at para. 17, Vol. 1.
5 . Exhibit PR-2013-014-01, Vol. 1 at tab 11.
6 . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].
7 . 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].
8 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/index_en/ait.htm> [AIT].
9 . Exhibit PR-2013-014-10 at para. 29, Vol. 1B.
10 . Ibid. at para. 35.
11 . Ibid. at para. 36.
12 . Exhibit PR-2013-014-01 at para. 17, Vol. 1.
13 . 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.
14 . 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].
15 . 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].
16 . 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) [CPAFTA].
17 . (8 July 2002), PR-2002-002 (CITT) [Tendering Publications]. See, also, FM One Alliance Corp. (27 June 2001), PR-2000-63 (CITT); Rolls-Royce Industries Canada Inc. (4 August 2000), PR-99-53 (CITT).
18 . Exhibit PR-2013-014-10 at para. 33, Vol. 1B.
19 . Tendering Publications at 7.
20 . Exhibit PR-2013-014-10 at para. 36, Vol. 1B.
21 . Such language is mirrored in the other applicable trade agreements as well. For instance, see Article 506(11) of the AIT.
22 . See, for instance, Palton Aircraft & Industries Limited (31 July 2003), PR-2003-015 (CITT).
23 . InBusiness Systems Inc. (29 November 2002), PR-2002-020 (CITT).
24 . Exhibit PR-2013-014-10 at para. 38, Vol. 1B.
25 . Ibid. at para. 8.
26 . Ibid. at para. 39.
27 . Exhibit PR-2013-014-01 at tab 16, Vol. 1.
28 . Exhibit PR-2013-014-10 at para. 25, Vol. 1B.
29 . Ibid. at para. 39.
30 . Exhibit PR-2013-014-01 at para. 20, Vol. 1.
31 . Exhibit PR-2013-014-10 at para. 44, Vol. 1B.