On June 13, 2025, amendments (the Amendments) to the Canadian International Trade Tribunal Procurement Inquiry Regulations1 (the Procurement Inquiry Regulations) came into force.
The Procurement Inquiry Regulations are regulations under the Canadian International Trade Tribunal Act which set forth the requirements and procedure for potential suppliers to make a complaint to the Canadian International Trade Tribunal (the Tribunal) with respect to contracts for the procurement of goods or services awarded or proposed to be awarded by Government of Canada institutions.
Among other things, the Amendments revise certain requirements for the Tribunal to investigate complaints, limit the monetary compensation and relief that the Tribunal may recommend, and limit the Tribunal's discretion in awarding costs incidental to the proceedings.
Eligibility and scope of a complaint
The Amendments narrow the eligibility requirements for making a complaint and the scope of a potential complaint.
Potential suppliers, including subcontractors or suppliers to the bidder or prospective bidder, are now defined as any bidder or prospective bidder that is: (a) a "Canadian supplier," as defined in Chapter Five of the Canadian Free Trade Agreement2, or (b) from a country or customs territory specified in a trade agreement that applies in respect of a designated contract.3
The "procurement process" is now defined as "the process that begins after a government institution has decided on its requirements and ends immediately after a designated contract is awarded." Furthermore, the Amendments go on to clarify that the procurement process specifically excludes the administration of an awarded designated contract.4
Complainants also have a new condition that must be satisfied with respect to complaints related to solicitations that restrict the origin of goods or services to be supplied. A complaint must provide the Tribunal with information that reasonably indicates that had the complainant been awarded the contract, it would have supplied only goods and services originating in one or more countries or customs territories that are parties to trade agreements that apply in respect of the designated contract.5
Dismissal of complaints
The Tribunal now has a strict obligation to dismiss a complaint if any of the circumstances in subsections 10(1)(a) to (d) of the Procurement Inquiry Regulations are present. Previously, the operative language of section 10(1) provided that the Tribunal "may" order the dismissal of a complaint if the criteria in section 10(1) were present. Now that language is mandatory ("shall dismiss").6 In other words, the Tribunal no longer retains the discretion to carry on with an investigation if any of the circumstances in subsections 10(1)(a) to (d) arise.
Expanded compensation regime
Complainant's costs for preparing a response to solicitation are now capped and such an award restricts the complainant's rights to other remedies. The total award for solicitation preparation costs is now capped at 2% of the complainant's bid price and such costs will only be awarded if the complainant's response to the solicitation was compliant.7
Furthermore, if such costs are awarded, the Tribunal cannot recommend that the complainant's bid be re-evaluated, that a designated contract be awarded to the complainant or that the complainant be further compensated.8
Where a complaint is found to be valid, any compensation that may be recommended by the Tribunal is now limited to:
- if the Tribunal determines that the designated contract should have been awarded to the complainant, the complainant's lost profits on the designated contract, up to 10% of the complainant's bid price; or9
- if not possible to determine whether the designated contract should have been awarded to the complainant, compensation for the lost opportunity to profit on the designated contract, up to 10% of the bid price of the awarded contract, divided by the number of potential suppliers for the designated contract,10
in each instance the applicable bid price for a designated contract does not include the value of any options or extensions contemplated in the designated contract.11
Furthermore, where the Tribunal recommends that a contract be awarded to the complainant and the contract has already been awarded to another person, the Tribunal is now required to also recommend, in the alternative, that a government institution pay compensation to a complainant instead of awarding the contract to the complainant.12
Finally, the Tribunal's discretion regarding the awarding of costs has also been circumscribed. The new section 11.3 now prescribes that, in the absence of exceptional circumstances, the Tribunal shall award costs of the proceedings to the complainant if the complaint is entirely valid, to the government institution if no part of the complaint is valid or, if the complaint is valid in part, the Tribunal may exercise its discretion to divide the costs.
The Tribunal's procurement review mechanism continues to offer suppliers an effective process for challenging procurements that violate trade agreement requirements. However, the Amendments add a layer of complexity to the process and their implications will need to be carefully considered by counsel advising clients who are considering filing a complaint.
Footnotes
1. Canadian International Trade Tribunal Procurement Inquiry Regulation, SOR/93-602 (as amended).
2. Canadian suppliers are defined as "a supplier that has a place of business in Canada".
3. Canadian International Trade Tribunal Procurement Inquiry Regulation, SOR/93-602, Section 2.2 and Section 4.1.
4. Ibid, Section 2.1.
5. Ibid, Section 7(1)(d).
6. Ibid, Section 10(1).
7. Ibid, Section 11.1(1).
8. Ibid, Section 11.1(1) and Section 11.1(2).
9. Ibid, Section 11.1(3)(a).
10. Ibid, Section 11.1(3)(b).
11. Ibid, Section 11.1(4).
12. Ibid, Section 11.2.
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