ORDRE DES TRADUCTEURS, TERMINOLOGUES ET INTERPRÈTES AGRÉÉS DU QUÉBEC

ORDRE DES TRADUCTEURS, TERMINOLOGUES ET INTERPRÈTES AGRÉÉS DU QUÉBEC
File No. PR-2015-061

Decision made
Thursday, February 25, 2016

Decision and reasons issued
Monday, February 29, 2016

TABLE OF CONTENTS

 

IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.).

BY

ORDRE DES TRADUCTEURS, TERMINOLOGUES ET INTERPRÈTES AGRÉÉS DU QUÉBEC

AGAINST

THE DEPARTMENT OF JUSTICE

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.

Daniel Petit
Daniel Petit
Presiding Member

STATEMENT OF REASONS

  1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act[1] provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations,[2] a potential supplier may file a complaint with the Canadian International Trade Tribunal (the 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.
  2. On February 24, 2016,[3] the Ordre des traducteurs, terminologues et interprètes agréés du Québec (order of certified translators, terminologists and interpreters of Quebec) (OTTIAQ) filed the present complaint relating to a Request for a Standing Offer (Solicitation No. JUS-RFSO-TRANS-1000018167) (RFSO) issued on October 5, 2015, by the Department of Justice for the provision of English-to-French and French-to-English translation services and corresponding editorial services.
  3. OTTIAQ alleged that a mandatory requirement of the RFSO, namely, the requirement for each of the translators proposed by an offeror to « [h]old an accreditation from, and be in good standing with, the Canadian Translators Terminologists and Interpreters Council (or Member Associations) », unfairly excluded OTTIAQ’s members from the procurement process, OTTIAQ not being a member association of the Canadian Translators Terminologists and Interpreters Council (CTTIC).
  4. On February 25, 2016, upon review of the complaint, the Tribunal decided, pursuant to subsection 30.13(1) of the CITT Act, not to conduct an inquiry into the complaint. The reasons for that decision are as follows.

ANALYSIS

  1. To begin with, on the basis of the information contained in the complaint, the Tribunal has concerns regarding the criteria used in the RFSO to the extent that it seems these resulted in the exclusion from the procurement process of translators who are members of OTTIAQ. The use of such criteria raises questions regarding compliance with the Agreement on Internal Trade,[4] which applies to the RFSO, and more specifically with Article 504, which stipulates inter alia that the federal government “shall not discriminate . . . between the suppliers of . . . goods or services of a particular Province or region and those of any other Province or region.”
  2. However, the Tribunal cannot initiate an inquiry into the complaint because, pursuant to sections 6 and 7 of the Regulations and the CITT Act, two basic conditions for inquiry have not been met.
  3. First, subsection 7(1) of the Regulations stipulates that, before deciding to conduct an inquiry into a complaint, the Tribunal must determine whether the complainant is a “potential supplier”. Indeed, as mentioned earlier, subsection 30.11(1) of the CITT Act stipulates that a complaint may be filed by a “potential supplier”. Section 30.1 of the CITT Act defines “potential supplier” as “a bidder or prospective bidder on a designated contract”.
  4. The information contained in the complaint indicates that OTTIAQ is not a bidder or prospective bidder on the designated contract at hand. According to the description included in the complaint, “[w]ith more than 2,100 members, OTTIAQ is . . . a professional order, duly recognized by the government of Quebec, that attests to the competence and professionalism of an individual holding the title of certified translator, terminologist or interpreter, thereby fulfilling its mandate to protect the public” [translation]. The Tribunal finds that OTTIAQ, as a professional order of certified translators, terminologists and interpreters of Quebec, is neither a bidder nor a prospective bidder with respect to the RFSO.[5] For this reason, the Tribunal cannot conduct an inquiry into OTTIAQ’s complaint.
  5. Moreover, even if the complaint had been filed by a potential supplier, it was not filed in a timely manner. The CITT Act procurement regime prescribes strict time limits within which grievances concerning a procurement process must be raised. Pursuant to section 6 of the Regulations, a potential supplier has 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier, to make an objection to the government institution or to file a complaint with the Tribunal. Subsections 6(1) and (2) of the Regulations stipulate as follows:

6 (1) Subject to subsections (2) and (3), a potential supplier who files a complaint with the Tribunal in accordance with section 30.11 of the Act shall do so not later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier.

(2) A potential supplier who has made an objection regarding a procurement relating to a designated contract to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal 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.

  1. Even though the complaint indicates that the mandatory requirement at issue was only “brought to the attention” [translation] of OTTIAQ in February 2016 by certain of its members, the Tribunal is of the view that the basis of the complaint should normally have become apparent to a potential supplier much earlier.
  2. The RFSO was issued on October 5, 2015,[6] and the solicitation closed on November 12, 2015.
  3. RFSO an accreditation from, and be in good standing with, the CTTIC or a member associationMoreover, in Amendment 002 to the RFSO, issued on October 29, 2015,[7] the Department of Justice confirmed unambiguously to offerors that “OTTIAQ will not be accepted in place of CTTIC accreditation” for the purposes of the RFSO. The relevant portion of Amendment 002 is the following:

Question 12:  Our question refers to mandatory requirements M1, M2 and M3. Will OTTIAQ certifications be considered valid?

Answer 12: No, OTTIAQ will not be accepted in place of CTTIC accreditation. . . .

  1. The Tribunal is of the view that the potential suppliers of the designated contract to be awarded subsequent to the RFSO should reasonably have become aware that an accreditation by OTTIAQ was not accepted reading the RFSO, including Amendment 002; this should have occurred soon after these documents were issued, and at the latest on November 12, 2015, which was the bid closing date.
  2. In other words, pursuant to section 6 of the Regulations, a potential supplier objecting to the mandatory requirement at issue should reasonably have become aware of the grounds for its objection or complaint on November 12, 2015, at the latest. From that date, a potential supplier had 10 working days to make an objection or file a complaint with the Tribunal.
  3. The complaint was filed with the Tribunal on February 24, 2016, more than three months after the date a potential supplier of the designated contract at issue should reasonably have become aware of the basis of its complaint. Therefore, the complaint is time-barred by operation of law.

DECISION

  1. Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.
 

[1].      R.S.C., 1985, c. 47 (4th Supp.) [CITT Act].

[2].      S.O.R./93-602 [Regulations].

[3].      The Tribunal first received OTTIAQ’s complaint on February 23, 2016, but determined that it did not comply with subsection 30.11(2) of the CITT Act. At the request of the Tribunal, OTTIAQ filed supplementary documents on February 24, 2016. Therefore, pursuant to subsection 96(1) of the Canadian International Trade Tribunal Rules, the complaint is considered to have been filed on February 24, 2016.

[4].      18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.ait-aci.ca/agreement-on-internal-trade/>.

[5].      In precedent cases, the Tribunal has indicated that a “potential supplier” must (1) have the technical and financial capability of fulfilling the requirement that is the subject of the procurement and (2) still have the capacity to submit a bid in response to the solicitation (an exception is made where the complainant is effectively deprived of that capacity as a result of a breach of the trade agreements by the government institution in the procurement process). See Flag Connection Inc. v. Department of Public Works and Government Services (3 September 2009), PR-2009-026 (CITT) at para. 20 and note 12.

[6].      The solicitation was available on the federal government’s electronic tendering service website at: https://‌buyandsell.gc.ca/.

[7].      According to the information available at: https://buyandsell.gc.ca/

Case Number(s)

PR-2015-061

Attachment(s)

pr2p061_e.pdf (62.28 KB)

Status

Publication Date

Thursday, March 3, 2016

Modification Date

Thursday, March 3, 2016