LEMMEX GROUP INC.
Orders and Reasons
LEMMEX GROUP INC.
File No. PR-2003-030
TABLE OF CONTENTS
Ottawa, Friday, January 30, 2004
File No. PR-2003-030
IN THE MATTER OF a complaint filed by Lemmex Group Inc. under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;
AND FURTHER TO a determination made pursuant to section 30.16 of the Canadian International Trade Tribunal Act awarding the Department of Public Works and Government Services its reasonable costs incurred in relation to preparing and filing the Government Institution Report, which costs are to be paid by Lemmex Group Inc.
ORDER
INTRODUCTION
In a determination made on September 24, 2003, the Canadian International Trade Tribunal (the Tribunal) awarded the Department of Public Works and Government Services (PWGSC) its reasonable costs incurred in relation to preparing and filing the Government Institution Report (GIR).
On October 29, 2003, PWGSC submitted its claim for costs to the Tribunal in the amount of $7,804.63. On November 19, 2003 the Lemmex Group Inc. (Lemmex) filed its comments regarding PWGSC's claim with the Tribunal. PWGSC did not provide any further comments to the Tribunal.
COMPLAINT COSTS
PWGSC claimed $7,557.38 for legal fees, consisting of 53.7 hours at $125.00 per hour for work performed by external legal counsel and 3.0 hours at $125.00 per hour for in-house legal counsel. An additional $247.25 was claimed for disbursements.
Lemmex submitted that, based on the itemized cost and activity breakdown submitted by PWGSC, it is obvious that the time spent and expense incurred had been well documented by PWGSC's legal counsel. Lemmex submitted that it also incurred considerable expense and spent considerable time with a view to submitting the complaint in the hope that the Tribunal would qualify and clarify the evaluation process, seek fairness on behalf of the supplier and reverse the PWGSC's finding. Lemmex further submitted that, had it been aware that PWGSC would hire external legal counsel and that it would be subjected to those costs, it would have withdrawn its complaint, as it cannot afford the legal costs in addition to the loss of the award and the costs associated with submitting the complaint. Accordingly, Lemmex requested that the Tribunal reconsider the award of costs against it. Lemmex further submitted that this complaint was not submitted in a frivolous or vexatious manner and that the debriefing following contract adjudication was not conducted in a manner that supports guidelines identified by the Treasury Board or Government contract regulations.
Given that Lemmex has not disputed PWGSC's claim either for external legal counsel or the disbursements, the Tribunal allows these claims.
With respect to the claim for costs for in-house legal counsel, the Tribunal notes that section 5.2.3 of the Procurement Cost Guidelines specifically states that costs will generally not be recoverable in respect of employees, officers or directors of a claimant who, acting in their usual capacity as employees, officers or directors, expended time in connection with a claimant's participation in a procurement proceeding. In the Tribunal's opinion, this is clearly the case with PWGSC's in-house legal counsel who was acting in his usual capacity as an employee of the Crown, namely as legal counsel. Accordingly, the Tribunal will not allow the claim relating to the use of in-house legal counsel.
In consideration of the above, the Tribunal will allow PWGSC its costs incurred in relation to preparing and filing the GIR in the amount of $7,429.63, consisting of $7,182.38 for external legal counsel and $247.25 for disbursements, and directs Lemmex to take appropriate action to ensure prompt payment.
Pierre Gosselin
Pierre Gosselin
Presiding Member
Michel P. Granger
Michel P. Granger
Secretary