THE ACCESS INFORMATION AGENCY INC.

THE ACCESS INFORMATION AGENCY INC.
File No. PR-2017-003

Decision made
Wednesday, April 26, 2017

Decision issued
Thursday, April 27, 2017

Reasons issued
Tuesday, May 2, 2017

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

THE ACCESS INFORMATION AGENCY INC.

AGAINST

THE DEPARTMENT OF HEALTH

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. Since the complainant has not yet received a definitive response to its objection to the government institution, the complaint is premature.

Daniel Petit
Daniel Petit
Presiding Member

The statement of reasons will be issued at a later date.

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. The complaint concerns a request for availability (hereafter, the RA) issued on April 4, 2017, by the Department of Health (Health Canada). The RA was issued pursuant to a standing offer for temporary help services in the National Capital Region for the purpose of issuing a call-up to one of the companies holding a standing offer. The requested services were those of an advanced-level consultant specialized in dealing with access to information and privacy requests.
  3. In its complaint, The Access Information Agency Inc. (AIA) contends that Health Canada disqualified its bid using an undisclosed evaluation criterion and refused to award it the contract contrary to the applicable rules of the RA, used the procurement process to favour a specific supplier and refused to provide the estimated value of the contract to be awarded pursuant to the RA, the name of the contract awardee, the characteristics and advantages of the winning bid, and the reasons for which its bid was unsuccessful.

ANALYSIS

  1. On April 26, 2017, pursuant to subsection 30.13(1) of the CITT Act, the Tribunal decided not to inquire into the complaint for the reasons that follow.
  2. Pursuant to sections 6 and 7 of the Regulations, the Tribunal may conduct an inquiry if the following four conditions are met:
    1. the complaint has been filed within the time limits prescribed by section 6;
    2. the complainant is a potential supplier;
    3. the complaint is in respect of a designated contract; and
    4. the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements. 
  3. In the case at hand, the complaint does not meet the first condition.
  4. Subsection 6(2) of the Regulations provides that a potential supplier that has made an objection 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.”
  5. AIA made objections to Health Canada on April 20, 2017. On the basis of the information contained in the complaint, at the time the complaint was filed, AIA had not yet received a denial of relief from Health Canada.
  6. The last relevant email from Health Canada to AIA, dated April 21, 2017, indicates that Health Canada was reviewing AIA’s objections and would provide an answer as soon as possible. That email read as follows:

    I acknowledge receipt of the two emails that . . . you sent me yesterday morning and at the end of the afternoon. We are analyzing their contents and we will provide you an answer as soon as possible.[3]

    [Translation]

  7. This response by Health Canada does not represent a denial of relief and cannot provide AIA with actual or constructive knowledge of the denial of relief within the meaning of subsection 6(2) of the Regulations. Since AIA filed its complaint without having received such a denial of relief, the complaint does not meet the conditions of the Regulations.
  8. In this respect, the Tribunal notes that AIA, in its second objection of April 20, 2017, asked Health Canada to give it an answer at the latest on April 21, 2017, at noon. The Tribunal takes note of AIA’s vigilance in this case. However, Health Canada did answer AIA by the deadline it had set by indicating it was analyzing the contents of its objections. In these circumstances, AIA must allow Health Canada time to deal with its objections and cannot file a complaint with the Tribunal prematurely. 
  9. For the above reasons, the Tribunal will not conduct an inquiry into the complaint. It is therefore not necessary to aforementionedof the Regulations.
  10. The Tribunal’s decision does not preclude AIA from filing a new complaint within 10 working days of receiving a denial of relief from Health Canada. Upon filing a new complaint, AIA may request that the documentation already filed with the Tribunal be joined to it. The Tribunal will then decide whether to conduct an inquiry.

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].      AIA, Exhibit 9. 

Case Number(s)

PR-2017-003

Attachment(s)

pr2r003_e.pdf (51.61 KB)

Status

Publication Date

Tuesday, May 9, 2017

Modification Date

Tuesday, May 9, 2017