CONTENT THREAD CORP.

CONTENT THREAD CORP.
File No. PR-2017-013

Decision made
Thursday, June 15, 2017

Decision and reasons issued
Friday, June 16, 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

CONTENT THREAD CORP.

AGAINST

THE CANADIAN AIR TRANSPORT SECURITY AUTHORITY

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.

Jean Bédard
Jean Bédard
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. The complaint relates to a Request for Proposal (RFP) (Solicitation No. RFP16-1153) by the Canadian Air Transport Security Authority (CATSA) for the provision of services for the redevelopment of CATSA’s website and content management system, as well as the provision of website hosting services.
  3. Content Thread Corp. (Content Thread) alleged that the RFP included a mandatory requirement related to the bidder’s experience that was unduly restrictive and unfair, and that bidders could potentially be disqualified for lack of such experience.
  4. Subsection 30.11(1) of the CITT Act limits the Tribunal’s jurisdiction to “. . . complaint[s] . . . concerning any aspect of the procurement process that relates to a designated contract . . . .”
  5. Subsection 7(1) of the Regulations sets out three conditions which must be met for the Tribunal to decide to conduct an inquiry in respect of a complaint. One of the conditions is that the complaint be in respect of a designated contract.
  6. Section 30.1 of the CITTAct defines “designated contract” as “. . . a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution and that is designated or of a class of contracts designated by the regulations”.
  7. Pursuant to section 30.1 of the CITT Act, a designated contract is therefore defined, in part, as a contract concerning the procurement of goods or services by a government institution. In turn, section 30.1 defines “government institution” as “. . . any department or ministry of state of the Government of Canada, or any other body or office, that is designated by the regulations”.
  8. In this regard, subsection 3(2) of the Regulations designates the federal government entities and enterprises set out in the relevant annexes of the trade agreements, including the following: the Schedule of Canada in Annex 1001.1a-1 and Annex 1001.1a-2 of the North American Free Trade Agreement,[3] the heading “Canada” in Annex 502.1A of the Agreement on Internal Trade,[4] the heading “Canada” in Annex 1 and Annex 3 of the Agreement on Government Procurement,[5] the Schedule of Canada in Annex Kbis‑01.1‑1 and Annex Kbis-01.1-2 of Chapter Kbis of the Canada-Chile Free Trade Agreement,[6] the Schedule of Canada in Annex 1401.1-1 and Annex 1401.1-2 of Chapter Fourteen of the Canada‑Peru Free Trade Agreement,[7] the Schedule of Canada in Annex 1401-1 and Annex 1401-2 of Chapter Fourteen of the Canada‑Colombia Free Trade Agreement,[8] the Schedule of Canada in Annex I and Annex II of Chapter Sixteen of the Canada‑Panama Free Trade Agreement,[9] the Schedule of Canada in Annex 17.1 and Annex 17.2 of Chapter Seventeen of the Canada‑Honduras Free Trade Agreement[10], and the Schedule of Canada in Annex 14-A of Chapter Fourteen of the Canada‑Korea Free Trade Agreement.[11]
  9. The complaint does not contain any information that would indicate that this procurement by CATSA is covered by any of the trade agreements. The RFP, a copy of which was filed with the complaint, does not indicate that any of the trade agreements apply to this procurement.
  10. CATSA is not listed as a covered federal government entity or government enterprise in any of the relevant schedules or annexes of any of the trade agreements.
  11. The Tribunal finds, therefore, that CATSA is not a “government institution” within the meaning of section 30.1 of the CITT Act.
  12. For this reason, the Tribunal concludes that the procurement is not in respect of a “designated contract” as defined by the CITT Act and section 3 of the Regulations.[12]
  13. Given that the procurement at issue does not relate to a designated contract, the Tribunal does not have jurisdiction to inquire into the complaint and considers the matter closed.

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].     North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2, online: Global Affairs Canada <http://international.gc.ca/trade-commerce/trade-agreements-accords-comme... (entered into force 1 January 1994)

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

[5].     Revised Agreement on Government Procurement, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/rev-gpr-94_01_e.htm> (entered into force 6 April 2014).

[6].     Canada-Chile Free Trade Agreement, online: Global Affairs Canada <http://international.gc.ca/trade-commerce/trade-agreements-accords-comme... (entered into force 5 July 1997). Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.

[7].     Canada-Peru Free Trade Agreement, online: Global Affairs Canada < http://international.gc.ca/trade-commerce/trade-agreements-accords-comme...">> (entered into force 1 August 2009).

[8].     Canada-Colombia Free Trade Agreement, online: Global Affairs Canada <http://international.gc.ca/trade-commerce/trade-agreements-accords-comme... (entered into force 15 August 2011).

[9].     Canada-Panama Free trade Agreement, online: Global Affairs Canada <http://international.gc.ca/trade-commerce/trade-agreements-accords-comme... (entered into force 1 April 2013).

[10].   Canada-Honduras Free Trade Agreement, online: Global Affairs Canada <http://international.gc.ca/trade-commerce/trade-agreements-accords-comme... (entered into force 1 October 2014).

[11].   Canada-Korea Free Trade Agreement, online: Global Affairs Canada <http://international.gc.ca/trade-commerce/trade-agreements-accords-comme... (entered into force 1 January 2015).

[12].   Moreover, there was no allegation or evidence filed with the complaint suggesting that CATSA was acting on behalf of a government institution covered under any of the applicable trade agreements.

Case Number(s)

PR-2017-013

Attachment(s)

pr2r013_e.pdf (56.89 KB)

Status

Publication Date

Tuesday, July 11, 2017

Modification Date

Tuesday, July 11, 2017