Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



When the Canadian Government Says "We do not wish to commit further resources to this matter", It Means Time Period For Government Procurement Bid Challenge Starts

On December 1, 2010 the Canadian International Trade Tribunal made a decision in the government procurement bid challenge case filed by Dataintro Software Limited (CITT File No. PR-2010-077). For a copy of the case, please use the following link to the CITT web-site - http://www.citt.gc.ca/procure/determin/pr2k077_e.asp

The key issue was whether Dataintro filed its bid challenge complaint within the 10 day statutory limitation period. Subsection 6(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations provides that a complaint shall be filed with the Tribunal “. . . 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) of the Regulations states that “[a] potential supplier who has made an objection . . . to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal 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 Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.

Based on the facts, there was a lot of correspondence back and forth between Dataintro and the procuring government entity. However, on August 26, 2010, the procuring government entity informed Dataintro in writing of its "final decision", namely, that it was "not prepared to commit further resources" to the issue. The CITT found these words to be important. the tone of the letter was important.

The CITT took the position that August 26, 2010 was the date that Dataintro knew or ought to have know the basis for its complaint. The Tribunal considered that Dataintro had a clear statement that the procureing government entity was not going to do anything further and, therefore, Dataintro had actual knowledge of the denial of relief Since Dataintro filed its complaint after 10 days from August 26th, it was too late.

The morale of the story is if you get a "FOAD" letter from the government department, start writing your bid challenge complaint.

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