CROWN |
Contracts |
E.H. Industries Ltd. v. Canada (Minister of Public Works and Government Services)
A-696-00
2001 FCA 48, Malone J.A.
7/3/01
10 pp.
Judicial review of decision of Canadian International Trade Tribunal (CITT) not to conduct inquiry into applicant's complaint concerning procurement by Public Works and Government Services Canada (PWGSC) of 28 maritime shipborne helicopters in procedure alleged to be intentionally structured to discriminate against applicant--In August 2000 Minister of National Defence announced intention to replace Canadian Forces' fleet of Sea King helicopters--Posted letter of intent (LOI) providing general information with respect to requirement bidders state interest in being prime contractor; outlining steps in procurement procedure--Also advised intention to conduct mandatory pre-qualification process, distribute draft request for proposal (RFP) to potential prime contractors, solicit bids through final, official RFP--Applicant submitted response, becoming one of potential prime contractors on web site--Subsequently filing complaint alleging procurement procedure structured in intentionally discriminatory manner --CITT finding no reasonable indication Canada acting contrary to procurement procedures, ruling complaint premature as procedure at LOI stage with final specifications, selection criteria not yet set--(1) When making determination within its jurisdiction, CITT decisions may only be overturned if patently unreasonable; when making decision regarding own decision CITT must be correct: Canada (Attorney General) v. Symtron Systems Inc., [1999] 2 F.C. 514 (C.A.)--Agreement on Internal Trade, chapter five requiring federal government contracts to be open to suppliers from all provinces without discrimination--Parliament conferring on CITT authority to conduct inquiries into complaints by potential suppliers made under trade agreements, including Agreement on Internal Trade (AIT)--Canadian International Trade Tribunal Act, Regulations setting out comprehensive regime for bid protests, procurement review--Regulations, s. 7(1) setting out three conditions to be met in order for CITT to have jurisdiction--CITT not mentioning first two conditions, but finding no reasonable indication of violation of AIT (s. 7(1)(c))--Purpose of assessment under s. 7(1)(c) as to whether complaint disclosing "reasonable indication" of violation of AIT to determine if evidence, arguments in support of complaint sufficient to warrant investigation--Meaning of "reasonable indication" at issue--Correct interpretation must account for fact functions to be performed administrative--Whether to conduct inquiry non-adjudicative, matter of discretion to which CITT should be accorded wide degree of deference--CITT's decision not to conduct inquiry should only be subject of intervention where patently unreasonable --(2) Complaint relating to criteria to be employed in final selection process, in request for proposal yet to be finalized--At this point in time impossible to know whether final form of RFP will discriminate against applicant's products --Applicant will have opportunity to comment on draft RFP before finalized--Also future opportunity to again complain when final RFP stage reached--Evidence not revealing discrimination against applicant at this preliminary stage--CITT should have dismissed complaint solely on ground of prematurity without looking at merits--Rational basis to find complaint not giving rise to reasonable indication of violation of AIT--Application dismissed--Canadian International Trade Tribunal Procurement Inquiry Regulations, SOR/93-602 (as am. by SOR/95-300, s. 2), s. 7(1) (as am. by SOR/96-30, s. 5)--Canadian International Trade Tribunal Act, R.S.C., 1985 (4th Supp.), c. 47--Agreement on Internal Trade, Can. Gaz., Part I, April 29, 1995.