FREQUENTLY ASKED QUESTIONS - PROCUREMENT INQUIRIES
Who may file a complaint with the Tribunal?
Any bidder or prospective bidder may file a complaint with the Tribunal. A bidder can be an individual, a sole proprietorship, a corporation, a joint venture or any other authorized business venture.
In cases of composite business ventures, it is important that mandated persons representing the whole of the business venture file the complaint. Generally, a subcontractor is not considered a bidder or prospective bidder on a designated contract. It is not necessary to have previously contracted with the government to be a prospective bidder.
How much time do I have to file a complaint with the Tribunal?
Under usual circumstances, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become aware, of its ground of complaint to either: 1) object to the relevant government institution; or 2) file a complaint with the Tribunal.
In the case where a complainant choses option 1) and objected to the relevant government institution within 10 working days from when it became aware, or reasonably should have become aware, of the grounds of the complaint and is denied relief by that government institution, the complainant has 10 working days from the date of the denial of relief to file a complaint with the Tribunal.
Complainants should take great care to ensure that they have provided all the requisite information for their complaints to be considered properly filed; failure to provide all such information within the above time limits may result in a complaint being considered untimely.
How do I file a complaint?
Submit the completed complaint form, the authorization form, and all supporting documents to the Tribunal through its Secure E-filing Service located at https://efiling-depote-pub.citt-tcce.gc.ca/submit-eng.aspx. Information submitted using the Secure E-filing Service is fully encrypted from the sender to the Tribunal.
Complainants may also file a procurement complaint by regular (non-encrypted) electronic mail to email@example.com, provided they accept the risks associated with this method of transmission.
If you choose to file the complaint electronically (either by the Tribunal’s Secure E-filing Service, or by regular electronic mail), do not file a hard-copy (paper).
The Tribunal prefers to receive filings by electronic means. However, should a complainant choose to file a procurement complaint in hard copy (paper), the Tribunal requires only the filing of the original in an unbound, photocopy-ready format.
How many copies of the complaint must I file?
The Tribunal requires only one copy, either electronic or hard-copy (paper).
When is a complaint complete?
A complaint must be in writing, and must identify the complainant, the solicitation at issue and the government department and/or agency whose needs are being fulfilled. It must contain a clear and detailed statement of the facts and reasons for the complaint including a detailed and precise timeline of the events leading to and supporting the complaint. The complaint must also indicate the relief it is seeking. Furthermore, the complaint must identify a clear point of contact in order to receive communications from the Tribunal and must include all documents in the complainant's possession that are relevant to the complaint.
When is a complaint considered to be “filed”?
In order for a complaint to be considered “filed”, it must be complete. A complaint is considered filed on the day on which it is filed with the Tribunal. If a complaint is deficient, it is considered filed on the day that the Tribunal receives the information that corrects the deficiencies.
What documents should I include with my complaint?
- Any notice published on the MERX electronic tendering service (www.merx.com)
- Any notice published on buyandsell.gc.ca (https://buyandsell.gc.ca/)
- All tender documents such as the complete RFP, with all amendments and attachments
- Your bid proposal in full, including the financial and technical proposal
- All related correspondence between the complainant and the government institution including e-mails, letters, faxes, etc.; and
- Any other written information that relates to any objection made
Is the government institution that I am complaining against made aware of my complaint?
Yes, the government institution is copied on the Tribunal’s acknowledgement of receipt of complaint letter.
Besides the government institution, who else may have access to the complaint?
Any information submitted to the Tribunal is made available to the public, unless it is designated as confidential.
Can I request that entire my complaint remain confidential?
No. As the Tribunal is a court of record and, in order to uphold its commitment to transparency, the Tribunal endeavors to place as much information as possible onto the public record. To that end, the Tribunal requests parties make as much information available to the public as possible. In addition, in order for parties to adequately respond to the complaint, the grounds of complaint should be sufficiently disclosed in public to allow for a proper reply by the government.
What type of information is normally considered confidential?
“Confidential information” generally includes business proprietary information, personal information or third party information. Examples of confidential information include:
- Business proprietary information such as: confidential pricing or business strategies.
- Financial bid and other financial information
- Curriculum vitae
- Personal information (home address, telephone number, personal e-mail addresses, etc.)
- Third party information (information that does not belong to the complainant or to the government institution)
- Completed evaluation grid
What type of information is NOT normally considered as confidential?
The solicitation documents in the bid dispute, the grounds of your complaint and correspondence with government officials that does not disclose business proprietary information are usually not considered to be confidential information. Examples of non-confidential information include:
- Complaint and statement of facts
- The solicitation documents in the bid dispute
- The grounds of your complaint and correspondence with government officials that does not disclose business proprietary information
- Correspondence between the complainant and the Government Institution
If I have confidential information in my complaint, how do I indicate it as such?
(Note: If you are having difficulty with the following instructions, and are pressed for time, it is more important that you file your complete complaint on time. The Tribunal’s registrar staff will be pleased to assist in providing direction on how to file a public version as required once the confidential version of the complaint has been filed.)
A party wanting portions of the information that it files with the Tribunal to be designated as confidential must submit two versions of the information to the Tribunal:
1. A confidential version containing all the confidential information and labelled “Confidential” on every page that contains confidential information. In addition, all confidential information should be highlighted by using shading, boldface characters or square brackets; and
2. (a) a separate public version of the same document with the confidential information fully deleted if you are filing the complaint electronically. (You may not simply mask or hide the confidential information, it must be deleted); or
(b) a public version of the confidential document with the confidential information fully blacked-out if you are filing the complaint in hard-copy (paper).
In the alternative to filing a public version as described in 2(a) or 2 (b), you may file a public summary of the confidential information. In either case, the public version or the public summary must give the party opposite and the Tribunal sufficient information to understand the nature of the confidential information.
More information regarding the designation and protection of confidential information is found in the Confidentiality Guidelines on available on the Tribunal's Web site at www.citt-tcce.gc.ca/en/resource-types/confidentiality-guidelines.html.
How do I know which trade agreement(s) applies to my complaint?
The Tribunal may conduct an inquiry into a complaint by a bidder or prospective bidder that relates to any aspect of the federal government procurement process for a designated contract. In order to be considered a “designated contract” the government procurement in question must be covered by at least one of the trade agreements under which Canada has obligations with respect to government procurement. You will find a list of these trade agreements that include government procurement on the Tribunal’s website at www.citt-tcce.gc.ca/en/resource-types/legislation-agreements-and-others.html.
In checking which of the trade agreements applies to your complaint, you will need to determine the following information:
- Are the particular goods or services being procured covered in the annex(es) of the trade agreements?
- Is the estimated value of the procurement equal to or greater than the applicable monetary thresholds under the trade agreements?
- Is the government institution covered in the annex(es) of the applicable trade agreements?
- Once you know the applicable trade agreement(s), you should also consider the provisions on government procurement in the applicable trade agreements so that you can identify in your complaint which provisions have allegedly been breached.
Where can I consult the text of the trade agreements that include government procurement?
You will find links to the official texts of the trade agreements that include government procurement by referring to the Tribunal's website at www.citt-tcce.gc.ca/en/resource-types/legislation-agreements-and-others.html.
Does the Tribunal hear complaints against all Government of Canada procurements?
No. The Tribunal’s authority to conduct inquiries into complaints protesting federal government procurement processes only applies where the procurement is covered by one or more of the trade agreements, e.g. procurements for goods and services by government institutions that are covered by the trade agreements, and above the applicable minimum monetary thresholds.
The trade agreements also contain numerous and varied exclusions, including general exclusions in support of other socioeconomic objectives (e.g. national security, small and minority businesses) and various specific exclusions for certain types of goods, services and construction contracts, and certain procedural exceptions.
What are the relevant monetary thresholds?
To be covered by one of the trade agreements, the monetary value of the goods, services or construction services to be procured must be equal to or greater than a defined monetary threshold. The monetary thresholds are established by the trade agreements. The minimum monetary thresholds differ between the trade agreements. The Tribunal lacks the jurisdiction to consider a complaint involving a procurement below the minimum monetary threshold.
Can I file more than one complaint on the same procurement?
Yes. The same procurement process can be the object of several distinct complaints by the same complainant. As well, it is possible for different complainants to complain about the same procurement for identical and/or different reasons. In these instances, each complaint is decided on its merit and a remedy, as appropriate, is recommended by the Tribunal.
Can I file a complaint after the contract has been awarded?
Yes. Complaints are frequently filed after a contract has been awarded because sometimes complainants only discover the basis of their complaint after the contract is awarded. As a general rule, any disputed government action or omission relating to the procurement process, e.g. from the time the government institution has decided on its procurement requirement until the time it awards the contract can be the subject of a complaint to the Tribunal. However, any disputed government action that arises after the procurement process is completed, e.g. as a contract is performed and managed, is a matter of contract administration, which falls outside the scope of the Tribunal’s jurisdiction.
Do I have to prove my allegations in order for the Tribunal to initiate an inquiry into my complaint?
No. Complainants are required to only disclose a reasonable indication of a breach of the provisions of the applicable trade agreements in order for the Tribunal to commence an inquiry. This implies, however, that a complaint cannot be premature, cannot be based exclusively on hearsay, or cannot be the result of pure speculation or conjecture.
Is there a fee to file a complaint with the Tribunal?
There is currently no fee to file a complaint with the CITT. However, the Regulations provide for the establishment of such fees. If and when this occurs, the Tribunal will make it known.
How will I know if my complaint was received?
The Tribunal issues by electronic mail a written acknowledgement of receipt of the complaint, generally within 24 hours of receipt.
When will I know if my complaint has been accepted for inquiry?
The Tribunal Member (the decision maker) assigned to the case must decide within 5 business days whether or not the Tribunal will inquire into the complaint. This decision is forwarded to all parties and is posted on the Tribunal’s website within that timeframe or as soon as possible thereafter. The reasons for the decision may be issued simultaneously, or may follow at a later date.
If my complaint is accepted for inquiry, how long does the inquiry process take?
Generally, procurement complaint proceedings before the Tribunal are completed within 90 calendar days. However, at the request of the parties, such proceedings can be accelerated by the use of an "Express Option" which, in essence, cuts the standard 90 day timeframe to 45 days. Similarly, at the request of the parties, such proceedings can be extended to a maximum of 135 calendar days.
Do I have to be represented by a legal counsel?
No. Parties to a proceeding may be self-represented, or represented by counsel. “Counsel” means any person, other than a director, servant or employee of the party, who acts in the proceedings on behalf of the party. Accordingly, you can choose to be represented by legal or non-legal counsel.
Who can intervene in a procurement complaint?
Any interested party, that is, a party with a direct and material interest in a complaint may file a request with the Tribunal seeking intervener status. Such requests should be filed with the Tribunal in the form of a letter indicating why the requester is an interested party. The Tribunal reviews such requests expeditiously and informs the parties concerned of its decision.
What information from a complaint is made available to an intervener?
Any intervener is provided with a copy of the public record of the complaint inquiry.
Can I withdraw my complaint after it has been accepted for inquiry?
Yes. You can withdraw your complaint at any time including after it has been accepted for inquiry. Such a request is typically made in the form of a letter addressed to the Tribunal and need not include reasons or justification for the withdrawal. Generally, the Tribunal accepts such requests at face value.
When the Tribunal accepts a complaint for inquiry, is the inquiry limited to the grounds of complaint or can the Tribunal decide the merits of any other irregularity it might uncover during its inquiry?
When the Tribunal accepts a complaint for inquiry, it will decide the merits of each ground of complaint cited in the complaint. In some cases, additional issues have surfaced while an inquiry was underway or as a result of an inquiry. However, the grounds of complaint that form the subject matter of a complaint and, thus, of the Tribunal’s inquiry, cannot be changed, amended or supplemented after a complaint is accepted for inquiry. Therefore, the Tribunal will consider whether the issues raised are related to an existing ground of complaint or whether they constitute an entirely new ground of complaint.
When a complaint is accepted for inquiry, are all government institution actions in relation to the procurement under inquiry suspended?
No. While Tribunal has the power to postpone the award of any contract that is the object of a complaint that has been accepted for inquiry, the government may initiate several actions related to the solicitation in dispute except for the awarding of any contract.
What remedy can I expect if the Tribunal finds that my complaint is valid?
In your complaint, you may request reimbursement of your reasonable costs incurred in filing and proceeding with a complaint and/or your reasonable costs incurred in preparing your bid.
In addition, where the Tribunal determines that a complaint is valid, it may recommend to the government such remedy as it considers appropriate, including:
- that a new solicitation for the designated contract be issued;
- that the bids be re-evaluated;
- that the designated contract be terminated;
- that the designated contract be awarded to the complainant; or
- that the complainant be compensated for lost profits or losses by an amount specified by the Tribunal
What will happen if the Tribunal determines that my complaint is not valid?
When the Tribunal decides that a complaint is not valid, it will issue a decision with reasons. In cases where the government requests its costs of defending against the complaint, the Tribunal considers such requests on merit.
What can I do if I am not satisfied with a determination made by the Tribunal?
You can challenge determinations and orders made by the Tribunal by way of judicial review in the Federal Court of Appeal under sections 18.1 and 28 of the Federal Courts Act. In addition to the complainant, the government institution and the intervener may also challenge a determination or order by the Tribunal. An application for judicial review must be made within 30 days after the date on which the determination or order is first communicated by the Tribunal to the party directly affected.
Is the government obligated to implement the recommendations made by the Tribunal?
The government is under an obligation under the Canadian International Trade Tribunal Act (CITT Act) to implement the recommendations of the Tribunal to the greatest extent possible. The government must advise the Tribunal, within 20 days after receipt of the recommendations, of the extent to which it intends to implement the recommendations and, if it does not intend to implement them fully, the reasons for not doing so. Where the government has advised the Tribunal that it intends to implement the recommendations in whole or in part, it must advise the Tribunal, within 60 days after receipt of the recommendations, of the extent to which it has then implemented the recommendations.
Although there is no recourse provided in the CITT Act or the Procurement Inquiry Regulations where the government institution chooses not to implement the Tribunal’s recommendations, it is open to a successful complainant to challenge that decision by making an application for judicial review to the Federal Court of Canada (Trial Division).