Canada: Alternative Routes To Challenge Procurement Decisions - Part 2

Last Updated: June 24 2013
Article by Elizabeth Mayer

Canadian International Trade Tribunal (CITT)

For any procurement involving the federal government, bidders have the opportunity to challenge the government decision through the Canadian International Trade Tribunal. The Tribunal deals with complaints under the Agreement on Internal Trade (AIT), the North American Free Trade Agreement (NAFTA) and other international trade agreements. It is primarily of interest to Canadian procurement lawyers for its consideration of the application of the Agreement on Internal Trade. This Agreement applies to the provinces and certain other public sector bodies in Canada and decisions on its application are therefore of wider interest. The Tribunal was established under the Canadian International Trade Tribunal Act and is governed by the Act and regulations made under it. All of the decisions of the CITT are available online. Further information on the CITT can be found here.

Benefits of CITT

One of the benefits of the CITT to the bidder, is that there is no requirement to prove the contract A/ contract B analysis or to make a claim based on breach of contract. The Tribunal also provides a very quick remedy - decisions must usually be made within 90 days of the complaint having been made, with tight timelines on the government body to respond to the complaint and the complainant to reply. In many cases the Tribunal makes its decisions on the basis of the written record, although it, or one of the parties, may call for a public hearing.

Powers of the CITT

The Tribunal has the power to postpone the award of a contract, to order a procurement to be undertaken again or to award damages to a bidder, either for its costs of preparing a bid or for the loss of opportunity. The CITT may award damages even where the acts of the government body did not cause any loss. For example, in E.G Spence v. PWGSC (File No. PR-2011-049) PWGSC put out an RFP for maintenance services for washers and dryers at Canadian Forces Bases. Each bidder provided a unit price per machine. In its evaluation PWGSC multiplied the unit prices of each bidder by the total number of machines (900). E.G. Spence raised a complaint on the basis that its understanding from the RFP and the mandatory site visit was that the services would be limited to 475 machines and therefore this was the correct multiplier to have used. 

The CITT upheld the complaint - the correct multiplier should have been 475. However, because PWGSC had used the same incorrect multiplier for each bidder, the results of the evaluation did not change - E.G Spence was not the successful bidder. The Tribunal still awarded damages against PWGSC for the costs incurred by E.G. Spence in preparing its proposal. The reason for this was stated to be that the Tribunal has a regulatory role as well as a decision-making role in the procurement process. It may therefore exercise its powers in order to maintain "potential bidder's confidence in the integrity of the procurement system". The Tribunal considered that the PWGSC error was such that it would undermine bidders' confidence in future evaluations, especially given that the procurement process in this case was fairly simple and therefore it was unexpected that mistakes would be made.

Time Limits

One main limitation of the Tribunal is that complaints must be filed within 10 working days of the day on which the "basis of the complaint became known or reasonably should have become known to the potential supplier". So, if the complaint relates to the terms of an RFP, for example, claiming that the terms are too vague or contain requirements that are not in accordance with the AIT, the complaint must be raised within 10 workings days of the date on which the complainant should have recognized the problem. It is therefore not possible to wait until the end of the procurement process and then to raise a complaint on these matters. There is one slight variation from this, where the bidder makes a complaint directly to the procuring authority within the applicable timeline, the deadline for filing a complaint with the CITT does not run until 10 working days after the complaint is rejected by the procuring authority.  

An example of how strictly these time lines are applied can be seen in one of the most recent decisions of the CITT, Flag Connection Inc. v, PWGSC (File number PR-2013-003). In this case, Flag Connection Inc. (FCI) alleged that the Department of National Defence, in its RFP for the procurement of Canadian flags for the purpose of repatriation ceremonies, had requested flags that did not comply with the standards of the Canadian General Standards Board relating to the manufacture of the national flag of Canada as set out in the National Flag of Canada Manufacturing Standards Act. FCI made its initial complaint to PWGSC on March 22, 2013. PWGSC formally responded on April 15, 2013, refusing to amend the RFP. FCI filed its complaint at the CITT on April 30, 2013. However, the 10 working days from April 15 expired on April 29, and accordingly the CITT refused to hear the case.  

One final point to note on time limits is that if a bidder has raised an objection with the government body, a complaint cannot be made until that body has refused the relief sought. For example, in The Corporate Research Group Ltd. v. The Department of Foreign Affairs and International Trade (File number (PR-2012-004), the bidder alleged that its proposal was not fairly evaluated in accordance with the RFP. It raised a complaint with the DFAIT and the Department agreed to re-evaluate the proposal. At the time the complaint was made to the CITT the bidder had not heard anything further. The Tribunal held that there had not at that point been a denial of relief and therefore it would not hear the complaint. The Tribunal said that the complaint could be brought once the Department responded or if the Department did not respond within a reasonable period of time (set by the Tribunal as around three weeks later).  

The next installment of this blog will explore the decisions of the CITT in more detail.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions