The majority of procurement complaints filed with the Canadian International Trade Tribunal (“CITT”) are rejected without inquiry because they were not filed in time. The CITT has no option but to reject these complaints because it has no authority to conduct inquiries into complaints filed outside the ten working day period set in the CITT Procurement Inquiry Regulations. Seeing so many potential suppliers denied the right to have their complaints heard because they waited too long is frustrating for practitioners. These companies and individuals invested both time and effort in preparing and filing bids in response to government tenders. In some cases, these companies and individuals may believe that they have been unfairly treated through the procurement process. Unfortunately, for those who wait too long, the right to seek a CITT review is lost on the basis on an error that could have been avoided through simple planning.
The CITT has the authority to conduct inquiries into procurement complaints that meet the following requirements:
- The complaint is in writing and identifies the complainant, the designated contract and the government institution that awarded or proposed to award the contract;
- The complaint contains a detailed statement of the legal and factual grounds of the complaint and states the relief requested by the potential supplier;
- The complaint includes all information and documents relevant to the complaint; and
- The complaint is filed within the deadline set out in the Canadian International Trade Tribunal Procurement Inquiry Regulations.
Potential suppliers should already have access to the information needed to meet most of the above requirements from the process of having reviewed and responded to the tender. A potential supplier can identify itself, the government department or agency involved and the solicitation. Based on their knowledge of their product/service and their market, the potential supplier should have a fairly good idea as to when they are being unfairly treated, which is the basis for the grounds of the complaint. The materials that the potential supplier obtains and develops through the procurement process, including the tender documents, any e-mails or other communication from the Government department or agency and the bid, are the relevant information that must be provided with the complaint. With the exception of providing a description of the grounds for the complaint, which may require outside assistance, the only information not readily available to a potential supplier is the deadline for filing complaints. In fact, potential suppliers may be surprised by how little time they have to prepare and file a complaint and this may be the reason behind the high number of late filings.
A potential supplier has ten working days to file a complaint with the CITT or to make an objection to the government department or agency that is administering the procurement. Once the government department or agency responds to the objection, usually by rejecting it, the potential supplier has ten working days from that point to file a complaint with the CITT. The ten working day period excludes weekends and federal statutory holidays, so in most cases ten working days is equal to two weeks. The ten working day period begins on the day the potential supplier became aware of, or reasonably should have become aware of the issue giving rise to the ground for complaint.
Ten working days is not a lot of time to determine whether it is worthwhile to file a complaint with the CITT and to then move to prepare and file the complaint. To make the best use of this time, any company or individual who responds to a tender should confirm the jurisdictional points and deadlines set out above and take a little time to decide in which circumstances they would file a complaint. If they have any questions or concerns, they should consult with a practitioner as early as possible so that they do not have to be made during the ten working day period.
By following these simple steps, potential suppliers should be able to avoid having their complaint rejected for late filing and, by extension, be in a better position to protect the value of their investment in preparing and submitting a bid in response to a government tender.
