Posted by on Mar 9, 2015

The recent procurement decision by the Canadian International Trade Tribunal (CITT) in 2040077 Ontario Inc. o/a FDF Group, CITT File Nbr. PR-2014-058 (FDF Group) raises the question of how long a complainant must wait for Public Works and Government Services Canada (PWGSC) to respond to an objection before filing a procurement complaint with the CITT, but provides no clear answer.

In this case, FDF Group filed a bid in response to PWGSC procurement of urethane dumbbells for the Department of National Defence.  FDF Group considered that the contract, which was awarded to another supplier on January 28, 2015, did not meet the mandatory requirements in the Request for Proposals.  FDF objected to PWGSC on February 2, 2015 and asked that the bids be re-evaluated.  PWGSC responded on February 4, 2015 by saying that it was “looking into this”, but noted that it “[could not discuss the matter] any further at this time.”  Having received no further response from PWGSC, FDF Group filed a complaint with the CITT on February 19, 2015; 10 working days after PWGSC’s February 4, 2015 reply.  The CITT dismissed the complaint on February 27, 2015 finding that the complaint was premature because FDF Group had not properly waited for PWGSC to respond to its objection before filing its complaint.

In its Statement of Reasons, the CITT noted that a potential supplier may file a complaint or object to the relevant government institution within 10 working days of the date on which it became aware of the basis for the complaint.  If the potential supplier chose to file an objection, it would then have ten working days from the date that the government institution denied the relief requested in its objection to file a complaint.  In this case, the CITT noted that PWGSC’s initial response indicated that it was looking into the matter, but that it could not discuss the matter with FDF Group at that time.  Based on this reply, the CITT found that PWGSC was looking into the matter and intended to respond at some future date.  Therefore, the CITT found that FDF Group’s decision to file the complaint prior to receiving a final response from PWGSC was premature. The CITT also noted that FDF Group could file a new complaint within 10 days of PWGSC’s response to its objection or if PWGSC failed to respond to its objection within a reasonable time, but gave no indication of what would constitute reasonable in these circumstances.

We should not be surprised by the finding that government institutions cannot delay procurement complaints indefinitely, but we may be surprised to find that the 10 working days that FDF Group waited in this case was not reasonable, simply because the procurement bid challenge process is intended to be fast and easy.  This is evident from the provisions of the CITT Act and Procurement Inquiry Regulations which provide as follows:

  • a potential supplier must either file an objection or file a complaint within 10 working days of the date on which it became aware of the grounds for the complaint;
  • if the potential supplier filed an objection within that time period, it must file a complaint within 10 working days of the date on which the government institution denied the relief requested in the objection;
  • once a complaint has been accepted for inquiry, the CITT must complete its inquiry within 90 days of the date on which the complaint was filed or, if the issue is complex, within 135 days.

Considered in light of these tight time frames, the decision by FDF Group to wait 10 working days before filing a complaint appears to have been reasonable, although not in the eyes of the CITT.  In determining what is reasonable, the CITT must balance the right of the potential supplier to have its complaints heard quickly against the government institution’s right to reply to objections within a reasonable period of time.  The CITT has also implicitly determined that a government institution cannot prevent a potential supplier from having its complaint heard through delay.  The only question is the scope of the reasonable period allowed to the government institution to respond to an objection.  Rather than leave potential suppliers to discover the boundaries of the reasonable period through trial and error, the CITT should have taken this opportunity to discuss the meaning of reasonable period in the circumstances and provide some guidance, such as a discussion of the factors that it considers to determine whether the government institution has had a reasonable period of time to respond.  Admittedly, it is unusual for a potential supplier to file a complaint before the government institution responds to its objection, but it does happen.  To better ensure that the procurement bid complaint process provides fast and efficient dispute resolution, as intended, the CITT should take advantage of these opportunities to provide more expansive reasons so that all parties can better understand the rules and their application to everyone’s benefit, including the CITT.