IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act.

BY

STAR-TING INCORPORATED

AGAINST

THE DEPARTMENT OF FISHERIES AND OCEANS

DECISION

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, which is premature at this time because a response to Star-Ting Incorporated’s objection filed with the Department of Fisheries and Oceans on July 28, 2022, has not been received at the time of consideration of the documents on the record.

STATEMENT OF REASONS

[1] Subsection 30.11(1) of the Canadian International Trade Tribunal Act [1] (CITT Act) provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations [2] (Regulations), a potential supplier may file a complaint with the Canadian International Trade 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.

SUMMARY OF THE COMPLAINT

[2] Star-Ting Incorporated (Star-Ting) filed a complaint with the Tribunal on July 28, 2022, with respect to a request for proposal (RFP) (solicitation 30001823) issued by the Department of Fisheries and Oceans (DFO) for the provision of professional services for a senior “Proservices Stream 9.15 Facilitator Consultant”. [3]

[3] Star-Ting challenges, among other things, the evaluation of its bid in respect of the requirements of the solicitation.

[4] For the reasons below, the Tribunal finds that Star-Ting’s complaint is premature. As such, the Tribunal has decided not to conduct an inquiry at this time.

ANALYSIS

[5] Subsection 6(1) of the Regulations provides that a potential supplier may file a complaint with the Tribunal, provided that it “do[es] so not later than 10 working days after the day on which the basis of the complaint became known”. The potential supplier may also file a complaint following an objection made to the relevant government institution when relief is denied by that government institution. In such a case, the complaint with the Tribunal must be filed “within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier.”

[6] On July 28, 2022, Star-Ting received a regret letter from DFO informing it that it would not be awarded a contract for the solicitation. [4] On the same day, Star-Ting made an objection to DFO by way of email. [5]

[7] Based on the record, the Tribunal finds that the complaint is premature because Star‑Ting filed its complaint before having received an answer from DFO. [6]

[8] The Tribunal takes note of Star‑Ting’s vigilance to the short timelines applicable to procurement complaints. However, in view of the statutory scheme setting out the Tribunal’s bid challenge mechanism, the Tribunal cannot consider the merits of the complaint until after DFO has had the opportunity to respond to Star-Ting’s grievance outlined in its objection. For those reasons, the Tribunal will not conduct an inquiry into the complaint at this time.

[9] The Tribunal’s decision does not preclude Star‑Ting from filing a new complaint. Should the matter not be resolved between the parties and Star‑Ting wish to pursue its grievance, Star‑Ting may file another complaint with the Tribunal within 10 working days from the date that DFO informs Star-Ting that its request for relief has been denied.

[10] Alternatively, if DFO does not reply to Star-Ting’s objection within a reasonable timeframe, Star‑Ting may also file a new complaint with the Tribunal. In the circumstances, the Tribunal would consider a reasonable delay to be 30 days from the issuance of these reasons, after which time Star‑Ting may construe the lack of response to be a denial of relief. In such a case, Star‑Ting would have 10 working days (starting on September 4, 2022) to file a new complaint with the Tribunal.

[11] In either case, if Star‑Ting decides to file a new complaint, it may request that documents already filed with this complaint be joined to the new complaint. The Tribunal would then be able to examine Star‑Ting’s complaint and determine whether the conditions for initiating an inquiry are met.

DECISION

[12] Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint, which is premature at this time because a response to Star‑Ting’s objection filed with DFO on July 28, 2022, has not been received at the time of consideration of the documents on the record.