Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Government Procurement Bid Challenge Deadlines Require Careful Attention

On July 22, 2009, the Canadian International Trade Tribunal (CITT) made its decision in PR-2009-002 SIVA & ASSOCIATES v. Canada and determined that SIVA did not file its government procurement bid challenge within the 10 day statutory limitation period.  The facts highlight a problem for bidders nad potential bidders AND highlights the important of taking swift action. 

The Facts

  • On May 20, 2009, PWGSC issued the solicitation document.
  • Bid closing was set for June 30, 2009.
  • On June 3, 2009, Siva requested more information on the globe valves from PWGSC in order for it to bid an equivalent product.
  • As of June 26, 2009, Siva had not received a response from PWGSC.
  • On June 29, 2009, Siva submitted its complaint to the CITT. However, the CITT considered that the complaint was incomplete, as it did not contain all the information relevant to the complaint, specifically, the estimated dollar value of the proposed procurement.
  • On June 30, 2009, the CITT advised Siva by telephone of the need for the estimate, and Siva indicated that it would provide the information.
  • The information was not received and, on July 13, 2009, the CITT requested in writing that Siva provide the information not later than July 15, 2009.
  • Siva filed the information with the CITT on July 16, 2009.

The 10- day deadline

Subsection 6(1) of the Regulations provides that a complaint shall be filed with the CITT “. . . not later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier.” Subsection 6(2) provides that a potential supplier that has made an objection to the relevant government institution, and is denied relief by that government institution, may file a complaint with the CITT “. . . within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier.”

In other words, 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 object to the government institution or file a complaint with the CITT. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the CITT within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.

The Decision

The CITT considered that the complaint was filed on July 16, 2009, when it received the requested information from Siva. Consequently, the CITT determined that Siva failed to file its complaint with the CITT within the prescribed time limit and considers that it was therefore filed in an untimely manner.

In light of the above, the CITT decided that it will not conduct an inquiry into the complaint and considers the matter closed.

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