Business to Government in Canada | Supplier Recourse – Part 2

Supplier Recourse | Government of Canada - Part 2 The last discussion was on what to do if you, [as a small or medium sized enterprise], felt that you had been unfairly dealt with by a government department or agency. We talked about the Office of the Procurement Ombudsman, which focuses on relatively small contracts.

For recourse respecting the larger procurements outside the mandate of the Ombudsman, there is the Canadian International Trade Tribunal (CITT). The CITT is an independent administrative tribunal that, among other things, “receives, inquires into, decides and makes recommendations in respect of procurement complaints”. This is done in the context of procurement by the federal government that is covered by the North American Free Trade Agreement (NAFTA), the Agreement on Internal Trade (AIT) and the World Trade Organization (WTO) Agreement on Government Procurement (AGP). You can see that these complaints are for larger dollar amounts, and may include such things as defence procurements of ships and aircraft, among others.

Formally, suppliers may challenge federal government procurement decisions that they believe have not been made in accordance with the requirements of the following: Chapter Ten of NAFTA, Chapter Five of the AIT or the WTO AGP. Any potential suppliers who believe that they may have been unfairly treated during the solicitation or evaluation of bids, or in the awarding of contracts on a designated procurement, may lodge a formal complaint with the Tribunal.

The following process comes directly from the CITT website:

Procurement complaints may be filed with the Canadian International Trade Tribunal (CITT) by potential suppliers concerning alleged breaches by the Government of Canada of the prescribed procedural requirements applicable to any aspects of the procurement process for contracts covered by the trade agreements i.e. the North American Free Trade Agreement (NAFTA), the Agreement on Internal Trade (the AIT), the Agreement on Government Procurement (the AGP) of the World Trade Organization, and the Canada-Korea Agreement on the Procurement of Telecommunications Equipment.

For all cases, a public record is compiled by the CITT and made available for viewing on the CITT’s premises. Further, all parties to a proceeding can expect that copies of the public documentation that they submit to the CITT will be provided by the CITT to the other parties to the proceeding.

If a party submits documents containing information that the party wishes to keep confidential, the party must provide the CITT with:

  1. a statement identifying the information that the party wants to keep confidential, together with an explanation as to why the information is confidential;
  2. a non-confidential summary of the confidential information, which should contain sufficient detail to convey a reasonable understanding of the substance of the confidential information (for example, a version of the information which blocks out the confidential information); and one set of documents containing the confidential information and marked “confidential” or “confidentiel” and one set of documents from which the confidential information has been deleted.

Your confidential information will be protected by the Tribunal under the terms of the CITT Act and will be available only to counsel who have filed strict confidentiality undertakings.

While the discussion of this tribunal is not strictly within the scope of small and medium enterprise, it’s useful to know that such a mechanism exists should a medium size business become interested in growing.

The last discussion was on what to do if you, [as a small or medium sized enterprise], felt that you had been unfairly dealt with by a government department or agency. We talked about the Office of the Procurement Ombudsman, which focuses on relatively small contracts.

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For recourse respecting the larger procurements outside the mandate of the Ombudsman, there is the Canadian International Trade Tribunal (CITT). The CITT is an independent administrative tribunal that, among other things, “receives, inquires into, decides and makes recommendations in respect of procurement complaints”. This is done in the context of procurement by the federal government that is covered by the North American Free Trade Agreement (NAFTA), the Agreement on Internal Trade (AIT) and the World Trade Organization (WTO) Agreement on Government Procurement (AGP). You can see that these complaints are for larger dollar amounts, and may include such things as defence procurements of ships and aircraft, among others.

Formally, suppliers may challenge federal government procurement decisions that they believe have not been made in accordance with the requirements of the following: Chapter Ten of NAFTA, Chapter Five of the AIT or the WTO AGP. Any potential suppliers who believe that they may have been unfairly treated during the solicitation or evaluation of bids, or in the awarding of contracts on a designated procurement, may lodge a formal complaint with the Tribunal.

The following process comes directly from the CITT website:

Procurement complaints may be filed with the Canadian International Trade Tribunal (CITT) by potential suppliers concerning alleged breaches by the Government of Canada of the prescribed procedural requirements applicable to any aspects of the procurement process for contracts covered by the trade agreements i.e. the North American Free Trade Agreement (NAFTA), the Agreement on Internal Trade (the AIT), the Agreement on Government Procurement (the AGP) of the World Trade Organization, and the Canada-Korea Agreement on the Procurement of Telecommunications Equipment.

For all cases, a public record is compiled by the CITT and made available for viewing on the CITT’s premises. Further, all parties to a proceeding can expect that copies of the public documentation that they submit to the CITT will be provided by the CITT to the other parties to the proceeding.

If a party submits documents containing information that the party wishes to keep confidential, the party must provide the CITT with:

a statement identifying the information that the party wants to keep confidential, together with an explanation as to why the information is confidential;

a non-confidential summary of the confidential information, which should contain sufficient detail to convey a reasonable understanding of the substance of the confidential information (for example, a version of the information which blocks out the confidential information); and

one set of documents containing the confidential information and marked “confidential” or “confidentiel” and one set of documents from which the confidential information has been deleted.

Your confidential information will be protected by the Tribunal under the terms of the CITT Act and will be available only to counsel who have filed strict confidentiality undertakings.

While the discussion of this tribunal is not strictly within the scope of small and medium enterprise, it’s useful to know that such a mechanism exists should a medium size business become interested in growing.

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