---

GOVERNMENT PROCUREMENT CHALLENGES

REQUIREMENT TO BE LIBERAL PARTY MEMBER, NOT ENOUGH TO TRIGGER SUCCESS?

Yes, this is a bit of clickbait title above – the government contract in question had a requirement that the successful bidder be a member of the Canadian Roofing Contractors Association (“CRCA” and the “Membership Requirement”), and our point is that it could well have required membership in any other organization, even a political one! BUT the Canadian International Trade Tribunal's (“CITT”) refusal to provide relief here is the interesting part.

We review this case below and the tricky nature of challenging government procurement decisions.

Baja Construction

In Baja Construction Canada Inc.(PR-2023-044), a Crown Corporation, Defence Construction (1951) Limited (“DCC”), put out a solicitation for a roof replacement of a DCC building, with its draft contract containing the Membership Requirement.

Baja Construction bid on and was awarded the contract by DCC.

Subsequently, DCC inquired whether Baja would comply with the Membership Requirement and Baja indicated that it could not. DCC then sent Baja a Notice of Default, and Baja objected to DCC concerning the Member Requirement. Baja then filed a complaint with the CITT per s. 33.11(1) of the CITT Act (“CITTA”), in advance of DCC’s deadline for corrective action.

CITT’s Decision

The issue before the CITT was whether Baja’s complaint satisfied the four conditions under ss. 6 and 7 of the CITT Procurement Inquiry Regulations (the “Regulations”) necessary to warrant an inquiry:

1. The complaint has been filed within the time limits prescribed by s. 6 of the Regulations;
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 procurement has not been conducted in accordance with the relevant trade agreements.

The CITT found that Baja’s complaint failed to satisfy several of the conditions, namely:

1. The time limit condition was not met (Baja had not received an answer from DCC concerning its objection and therefore could not be said to have denied Baja relief under s. 6(2) of the Regulations).
2. The CITT concluded it lacked jurisdiction because the matter involved contract administration not the procurement process.
3. Baja did not convince the CITT that its complaint was about a “designated contract” (i.e., contracts of a value above minimum monetary thresholds in certain trade agreements).

Takeaways

The CITT has served notice that government procurement is not an easy matter, and the Baja case is a master class in the hurdles that face those complaining to the CITT about procurement issues. One lesson that can be taken from the case is that it is often advisable to seek Experienced International Trade Counsel to assist in the challenge process.

Sub silentio: ChatGPT is generally going to miss most of this, as many do-it-yourself’ers will likely find out the hard way.

For help with Government Procurement cases, please click here.

Download a PDF copy of this Blog here.