Procurement Review Board Regulations

Regulations Respecting the Review by the Procurement Review Board of Complaints Relating to the Procurement Process of the Government of Canada Her Excellency the Governor General in Council, on the recommendation of the Minister of Consumer and Corporate Affairs, pursuant to sections 15 to 18 and 21 of the Canada — United States Free Trade Agreement Implementation Act*, is pleased hereby to make the annexed Regulations respecting the review by the Procurement Review Board of complaints relating to the procurement process of the Government of Canada, effective January 1, 1989. S.C. 1988, c. 65 These Regulations may be cited as the Procurement Review Board Regulations. In these Regulations, Act means Part II of the Canada-United States Free Trade Agreement Implementation Act; (Loi) intervenor means a person who is granted leave to intervene in any proceedings before the Board under section 29. (intervenant) send, in respect of any document or information, means to transmit by hand or registered mail or by facsimile or other electronic means capable of producing for the recipient, at the destination, a printed copy of the document or information. (envoyer) For the purposes of the Act, Chairman means the Chairman of the Board; (président) member means a member of the Board; (commissaire) potential supplier means an actual or prospective bidder whose direct economic interest has been or would be affected by the award of a contract or the failure to award a contract; (fournisseur potentiel) send[Repealed, SOR/90-206, s. 1(E)] These Regulations apply in respect of the procurement relating to a contract referred to in section 15 of the Act. Subject to section 5, for the purposes of section 15 of the Act, the prescribed class of contracts is the class of contracts for eligible goods as defined by Article 1309 of the Agreement. Defence contracts and security-related contracts, other than the contracts for products included for Canada in the coverage of the Agreement by virtue of Annex 1304.3 thereof, are exempt from the operation of the Act and these Regulations. In this section, defence contracts and security-related contracts mean contracts relating to or for the procurement of arms, ammunition or war materials or any other thing indispensable to national security or national defence. In computing a period of time prescribed by these Regulations, the day on which the designated period of time begins shall not be counted, but the last day of the period shall be counted unless that day is a Saturday or a Sunday or other holiday observed in the province in which a response or filing of documents is prescribed to be made, in which case the period shall include the next business day; where the period of time prescribed or allowed is less than eight days, any intervening Saturday and any intervening Sunday or other holiday shall not be counted; and where the period of time prescribed or allowed is eight days or more, any intervening Saturday and any intervening Sunday or other holiday shall be counted unless the last day of the period is a Saturday or a Sunday or other holiday, in which case the last day shall be considered to be the next business day. The Chairman shall be appointed as a full-time member and other members may be appointed as full-time or part-time members. A member shall be appointed to hold office during good behaviour for a term not exceeding five years but may be removed at any time for cause. A member is eligible to be reappointed as a member in the same or another capacity on the expiration of a first or subsequent term of office. A member shall have knowledge and experience related to public sector procurement. A member shall be paid such remuneration for the member’s services as may be fixed by the Governor in Council and is entitled to be paid reasonable travel and living allowances while absent from the member’s ordinary place of residence in the course of carrying out the member’s duties under the Act and these Regulations. Subject to subsection (7), a person who has ceased to be a member may, with the authorization of the Chairman, and where the person was the Chairman and the sole member, with the authorization of the Minister, take part in the disposition of any complaint in which that person became engaged while the person was a member, and a person so authorized shall, for that purpose, be considered to be a member. No person who has ceased to be a member shall, after the expiration of 120 days after the person ceased to be a member, take part in the disposition of any complaint pursuant to the authorization of the Chairman or the Minister referred to in subsection (6). Where a member or former member who has taken part in the disposition of a complaint is unable to continue to do so by virtue of subsection (7) or is unable or unwilling to do so for any other reason, the remaining members who took part in the disposition of that complaint may, with the authorization of the Chairman, make a determination on the complaint. In the event of the absence or incapacity of a member, other than the Chairman, the Governor in Council may appoint a person to act as a substitute member for such period of time and on such other terms and conditions as the Governor in Council may provide. The Minister shall designate another member to act as Chairman during the absence or incapacity of the Chairman or during the vacancy of the Chairman’s position, and that member, while acting as Chairman, shall have all the powers and perform all the duties and functions of the Chairman. The Chairman is the chief executive officer of the Board and has supervision over and direction of the work of the Board, including the allocation of work among the members; the assignment of members to sit at meetings of the Board and to preside thereat; the fixing of a quorum for a meeting of the Board; and the management of the internal affairs and the staff of the Board. A member shall be considered to have a conflict of interest where the member is not in compliance with the Conflict of Interest and Post-Employment Code for the Public Service (Treasury Board, October 1985). No member who has a conflict of interest shall participate in any work of the Board until the conflict of interest is resolved. No member shall use membership on the Board to influence or seek to influence the decision of another person in order to further the private interests of that member. The Minister may issue guidelines to members concerning the nature of the interests that are inconsistent with the proper performance of their duties and functions in relation to matters before the Board. The head office of the Board shall be located in the National Capital Region as described in the schedule to the National Capital Act. The Board may sit at such times and at such places in Canada as the Chairman considers necessary for the proper performance of its duties and functions. The Board may, with the approval of the Governor in Council, make rules not inconsistent with the Act, these Regulations or the Agreement governing the conduct of the work of the Board and the management of its internal affairs. There shall be a Secretary of the Board who shall be appointed in accordance with the Public Service Employment Act. In the event of the absence or incapacity of the Secretary, or if the office of Secretary is vacant, the Chairman may authorize any officer or employee of the Board to act as temporary Secretary. Such other officers and employees as are necessary for the proper conduct of the work of the Board shall be appointed in accordance with the Public Service Employment Act. It shall be a condition of appointment of a full-time member that the member be deemed to be a person employed in the Public Service for the purposes of the Public Service Superannuation Act. It shall be a condition of appointment of a part-time member, or substitute member, that the member be deemed to be a person employed in the Public Service for the purposes of the Public Service Superannuation Act unless the Governor in Council provides that the member is not to be so employed for those purposes. The Board may appoint and, subject to the approval of the Treasury Board, fix the remuneration of persons having technical or special knowledge to assist the Board in any matter in an advisory capacity. The Board may request any department or agency of the Government of Canada to second to the Board, for specified periods, such officers or employees of the department or agency as are necessary for the proper conduct of the work of the Board. The powers, duties and functions of the Board are to receive complaints and make determinations and conduct investigations in relation thereto; and make recommendations in writing to a governmental institution respecting any aspect of its procurement. All proceedings before the Board shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit. The Board shall not grant an extension of any time limit referred to in this Part except in exceptional circumstances. A complaint that is filed with the Board shall be in writing and be addressed to the Board; set out the name, address and telephone number of the complainant; include the original complaint signed by the complainant or the complainant’s representative, and at least one copy; identify the governmental institution responsible for the procurement that is the subject of the complaint, the solicitation and contract numbers and, if available, the name and telephone number of the contracting officer; include copies of all relevant documents; be concise and logically arranged and contain a clear and detailed statement of the substantive and factual grounds of the complaint; request that the Board make a determination on the complaint; and state the form of relief requested. Where the Board receives a complaint that does not comply with subsection (1), the Board shall send a notice to the complainant specifying the deficiencies. Forthwith on the filing of a complaint or of information submitted to correct any deficiencies referred to in subsection (2), the Board shall send a notice of receipt of the complaint to the complainant. A complaint shall be considered to be filed in the case of a complaint that complies with subsection (1), on the day it is received by the Board; and in the case of a complaint that does not comply with subsection (1), on the day the information is received by the Board to correct the deficiencies specified in the notice referred to in subsection (2). No formal briefs or other technical forms of pleading or motion are required for a complaint. Where the basis of a complaint is known or should reasonably have been known prior to bid opening or the closing date for receipt of bids, the complaint shall be filed prior to bid opening or the closing date for receipt of bids, as the case may be, but not later than 10 days after the basis of the complaint is known or should reasonably have been known. In any case other than those referred to in subsection (1), a complaint shall be filed not later than 10 days after the basis of the complaint is known or should reasonably have been known, whichever is earlier. Where a complaint has been filed initially with the government institution, any subsequent complaint filed with the Board within 10 days after actual or constructive knowledge of the denial of relief by the governmental institution shall be considered by the Board where the initial complaint to the governmental institution was filed within the time limits set out in subsection (1) or (2) or within such shorter time limits as may be required by the governmental institution in respect of that initial complaint. The Board, where good cause is shown or where it determines that a complaint raises issues significant to the procurement system, may consider any complaint that is not filed within the time limits set out in this section. Subject to subsection (2), the Board shall, within one day after the filing of a complaint, send to the individual designated in the solicitation by the governmental institution to receive complaints in respect of the procurement a copy of the complaint; a copy of every document filed with the complaint except any document containing confidential evidence or information referred to in subsection 26(3); and where any documents containing confidential evidence or information referred to in subsection 26(3) are withheld, a list of those documents. Where no individual is designated in the solicitation by the governmental institution to receive complaints in respect of the procurement, the Board shall send the material referred to in subsection (1) to the Deputy Minister or head of the governmental institution. On receipt of a copy of the complaint referred to in section 24, the governmental institution shall immediately inform the Board, and confirm in writing, whether the contract that is the subject of the complaint has been awarded and, where the contract has been awarded, provide to the Board the name and address of the contractor and the name and address of the representative of the contractor, if any. The Board shall, immediately after receiving the information referred to in subsection (1), send a copy of the complaint to the contractor or the representative of the contractor. Subject to subsection 26(3), a copy of every communication to the Board from the contractor or the representative of the contractor referred to in subsection (2) shall forthwith after receipt be sent by the Board to the governmental institution and the complainant. Subject to subsection (3), material submitted to the Board by a complainant shall not be withheld from any intervenor or from any governmental institution that may be involved in the complaint. Where the complainant considers that the complaint contains information that should be withheld, the complainant shall affix a statement so advising to the front page of the complaint submission and shall identify the information to be withheld and set out the reasons for withholding the information. Where evidence or information that is by its nature confidential is given or elicited in the course of any proceedings before the Board, the evidence or information shall not knowingly be disclosed by any person in any manner that is calculated or likely to make it available for the use of any business competitor of any person to whose business or affairs the evidence or information relates. Where the Board has sent a copy of a complaint to a governmental institution pursuant to section 24 and the Board decides to order the governmental institution to postpone awarding a contract pursuant to paragraph 16(1)(b) of the Act, the Board shall, before making such an order, send a notice informing the governmental institution of its intention to make such an order. For the purposes of subsection 16(2) of the Act, the prescribed time for the certification in writing by the governmental institution to the Board is two days after the day on which the notice referred to in subsection (1) is sent by the Board. The Board shall, within five days after the day on which a complaint is filed, determine whether the complaint meets the following requirements: that the complainant is a potential supplier; that the contract is a contract described in section 15 of the Act; that the information provided by the complainant and any other information examined by the Board in respect of the complaint discloses a reasonable indication that the procurement has not been carried out in accordance with the procurement policies, practices and procedures of the Government of Canada; and that the complaint is not trivial, frivolous, vexatious or made in bad faith. Where the Board determines that a complaint has met the requirements set out in subsection (1), the Board shall publish a notice of the filing of the complaint and of its decision to commence an investigation of the complaint in the Canada Gazette, Part I, or such other publication as the Board considers appropriate and shall, within the applicable time limit set out in section 39, conduct an investigation of the complaint, which investigation may include a hearing; and make a report of its findings and recommendations in relation to the complaint. The Board may grant leave to any potential supplier or representative of the Government of Canada or any person having a material and direct interest in any proceedings before the Board to intervene in those proceedings by making representations in the course of those proceedings. Subject to subsection 32(2), the governmental institution shall file with the Board a complete report on the complaint, together with a copy of the report, within 25 days after the day on which a copy of the complaint was sent to the governmental institution by the Board pursuant to section 24. A report referred to in subsection (1) shall contain a copy of the following: the complaint; the solicitation, including the specifications or portions thereof relevant to the complaint; all other documents relevant to the complaint except any documents containing confidential evidence or information referred to in subsection 26(3); a list of any confidential documents referred to in paragraph (c) that have been excluded from the report; a statement that sets out all findings, actions and recommendations of the governmental institution and responds fully to all allegations of the complaint; and any additional evidence or information that may be necessary in order to resolve the complaint. The Board shall, forthwith after receiving a report referred to in subsection (1), send to the complainant a copy of the statement referred to in paragraph (2)(e) and of the relevant documents referred to in paragraph (2)(c), except any documents that the complainant is not otherwise authorized by law to receive or that would give the complainant an unfair advantage; and make available to all intervenors a copy of the material referred to in paragraph (a). The governmental institution may request from the Board, in writing, an extension of the time limit referred to in subsection (1) and shall set out in the request the reasons therefor. The Board shall determine, in writing, whether the specific circumstances of the complaint warrant an extension of the time limit for the submission of the report and, where appropriate, may set a new date for the submission of the report. The complainant shall, within seven days after the day on which the Board sends a copy of the statement to the complainant pursuant to subsection 30(3), file with the Board comments on that statement or a request that the case be decided on the existing record. The Board shall, forthwith after receiving the comments referred to in subsection (1), send a copy thereof to the governmental institution and all intervenors. On the request of the complainant filed within the time limit referred to in subsection (1) and where the specific circumstances of the complaint warrant an extension of that time limit, the Board may extend the time limit for the filing of the comments referred to in that subsection. The Board may, at any time, dismiss a complaint before issuing a determination referred to in section 39 where the complaint on its face does not disclose a valid basis; is in respect of a procurement by an entity other than a governmental institution; relates to a contract having a value other than the value referred to in section 15 of the Act; relates to a contract that is not within the prescribed class of contracts referred to in section 4; is otherwise inappropriate for consideration by the Board; is not filed within the time limits set out in section 23; or fails to comply with any other requirement of this Part. Where the Board dismisses a complaint under subsection (1), the report referred to in subsection 30(1) is not required to be filed and the Board shall so notify the governmental institution. Where, after reviewing the report of the governmental institution in respect of a complaint or after reviewing other information in respect thereof with which the Board is otherwise provided, the Board determines that there is no valid basis for the complaint, the Board may dismiss the complaint. The Board may dismiss a complaint where the complainant fails to file, within the required time limit, the comments or a request referred to in subsection 31(1) or; a request for an extension of the time limit under subsection 31(3). A determination on a complaint shall not be delayed by the failure of a party to file a submission within the prescribed time limit, and the failure of any party or governmental institution to comply with the prescribed time limit may result in the resolution of the complaint without consideration of the submission. The Board may, on the request of the complainant or on the Board’s own initiative, hold a hearing on the merits of a complaint. A request for a hearing shall be made at the earliest possible time in the complaint proceeding. A hearing shall be held on a date and at a time and place set by the Board and the Board shall send notice thereof to all parties. The date referred to in subsection (3) shall be not earlier than seven days after the report of the governmental institution is filed with the Board. Not more than one hearing shall ordinarily be held on a complaint. The complainant, the governmental institution and all intervenors may file comments with the Board in respect of the complaint at the hearing and, where such comments are filed, the Board shall send copies thereof to the other parties within five days after the day on which the comments are filed. The Board may request that a hearing be held if at any time during the proceeding it decides that a hearing is needed in order to clarify material issues. Where a hearing is held, the Board may make such adjustments in the time limits for submitting documents to the Board as it determines to be fair to all parties. All parties to the hearing may appear in person or may be represented at the hearing by counsel or by an agent and, with leave of the Chairman, may do so by electronic means. Subject to subsection (3), a hearing before the Board shall be held in public. The Board may, on its own initiative, hold the hearing in camera or may hold the hearing in camera on the request of any party to the complaint, where the party establishes to the satisfaction of the Board that the circumstances of the procurement or the commercial confidentiality of the information before the Board justifies an in camera hearing. In making the appropriate determination on a complaint, the Board shall consider all the circumstances surrounding the procurement or proposed procurement, including the seriousness of the deficiency in the procurement, the degree of prejudice to all interested parties or to the integrity and efficiency of the competitive procurement system, the good faith of the parties and the extent of performance of the contract to which the procurement relates. Subject to subsection (2), paragraph 40(5)(e) and subsection 41(3), the Board shall issue a determination on a complaint within 90 days after the day on which the complaint is filed. Under exceptional circumstances the Board may extend the time limit referred to in subsection (1) and shall set out in writing the exceptional circumstances of the complaint that justify that extension. Where the complainant, the governmental institution or any intervenor requests an expeditious determination on a complaint, the Board shall consider the feasibility of using the procedure set out in subsection (5), referred to herein as the “express option”. The Board may apply the express option in the case of any complaint that is suitable for resolution within 45 days after it is filed. A request for the express option shall be made in writing and shall be submitted to the Board not later than three days after the complaint is filed. The Board shall determine whether to apply the express option within two days after receiving a request therefor and shall notify the governmental institution, the complainant and all intervenors if the express option is to be applied. Where the express option is applied, the time limits set out in this Part for filing documents shall not apply and the following procedure shall be followed: the governmental institution shall, within 10 days after the day on which it is notified by the Board that the express option is to be applied, file with the Board a complete report on the complaint, together with a copy of the report, containing the material referred to in subsection 30(2); the Board shall, forthwith after receiving a report referred to in paragraph (a), send to the complainant a copy of the material referred to in paragraph 30(3)(a) and make a copy of that material available to all intervenors; the complainant shall, within five days after the day on which the Board sends the statement of the governmental institution referred to in paragraph 30(2)(e) to the complainant pursuant to paragraph (b), file with the Board comments on that statement or a request that the case be decided on the existing record; the Board shall, forthwith after receiving the comments referred to in paragraph (c), send a copy thereof to the governmental institution and all intervenors; and the Board shall issue a determination on the complaint within 45 days after the day on which the complaint is filed. The Board may dismiss any complaint the subject-matter of which is the subject of litigation before a court of competent jurisdiction, unless the court requests that the Board make a determination on the complaint. The Board shall dismiss any complaint the subject-matter of which has been decided on the merits by a court of competent jurisdiction. Where the court requests that the Board make a determination on a complaint, the time limits prescribed by this Part may be modified by the Board. Every determination made on a complaint shall be signed by the Chairman and a copy thereof shall be sent by the Board to the head of the governmental institution responsible for the procurement that is the subject of the complaint. The Board shall, on the expiration of the 10 day period referred to in subparagraph 20(b)(i) of the Act, send to the complainant and all intervenors a copy of the determination on the complaint and, where applicable, of the written report of the governmental institution referred to in that subparagraph.