Procurement Review Board Regulations (SOR/89-41)

Transmission of Complaint

• 24 (1) 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) a copy of the complaint;

  • (b) a copy of every document filed with the complaint except any document containing confidential evidence or information referred to in subsection 26(3); and

  • (c) where any documents containing confidential evidence or information referred to in subsection 26(3) are withheld, a list of those documents.

• (2) 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.

Exchange of Information

• 25 (1) 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.

• (2) 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.

• (3) 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.

Confidentiality

• 26 (1) 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.

• (2) 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.

• (3) 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.

Postponement of Award Order

• 27 (1) 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.

• (2) 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.

Investigation

• 28 (1) The Board shall, within five days after the day on which a complaint is filed, determine whether the complaint meets the following requirements:

  • (a) that the complainant is a potential supplier;

  • (b) that the contract is a contract described in section 15 of the Act;

  • (c) 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

  • (d) that the complaint is not trivial, frivolous, vexatious or made in bad faith.

• (2) 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,

  • (a) conduct an investigation of the complaint, which investigation may include a hearing; and

  • (b) make a report of its findings and recommendations in relation to the complaint.

Intervention

29 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.

Governmental Institution Report

• 30 (1) 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.

• (2) A report referred to in subsection (1) shall contain a copy of the following:

  • (a) the complaint;

  • (b) the solicitation, including the specifications or portions thereof relevant to the complaint;

  • (c) all other documents relevant to the complaint except any documents containing confidential evidence or information referred to in subsection 26(3);

  • (d) a list of any confidential documents referred to in paragraph (c) that have been excluded from the report;

  • (e) a statement that sets out all findings, actions and recommendations of the governmental institution and responds fully to all allegations of the complaint; and

  • (f) any additional evidence or information that may be necessary in order to resolve the complaint.

• (3) The Board shall, forthwith after receiving a report referred to in subsection (1),

  • (a) 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

  • (b) make available to all intervenors a copy of the material referred to in paragraph (a).

• (4) 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.

• (5) 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.

Filing Comments on the Statement of the Governmental Institution

• 31 (1) 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.

• (2) The Board shall, forthwith after receiving the comments referred to in subsection (1), send a copy thereof to the governmental institution and all intervenors.

• (3) 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.

Dismissal of Complaints

• 32 (1) The Board may, at any time, dismiss a complaint before issuing a determination referred to in section 39 where the complaint

  • (a) on its face does not disclose a valid basis;

  • (b) is in respect of a procurement by an entity other than a governmental institution;

  • (c) relates to a contract having a value other than the value referred to in section 15 of the Act;

  • (d) relates to a contract that is not within the prescribed class of contracts referred to in section 4;

  • (e) is otherwise inappropriate for consideration by the Board;

  • (f) is not filed within the time limits set out in section 23; or

  • (g) fails to comply with any other requirement of this Part.

• (2) 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.

33 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.

34 The Board may dismiss a complaint where the complainant fails to file, within the required time limit,

• (a) the comments or a request referred to in subsection 31(1) or;

• (b) a request for an extension of the time limit under subsection 31(3).

Late Filing

35 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.

Hearing

• 36 (1) 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.

• (2) A request for a hearing shall be made at the earliest possible time in the complaint proceeding.

• (3) 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.

• (4) 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.

• (5) Not more than one hearing shall ordinarily be held on a complaint.

• (6) 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.

• (7) 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.

• (8) 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.

• 37 (1) 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.

• (2) Subject to subsection (3), a hearing before the Board shall be held in public.

• (3) 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.

Determination

38 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.

• 39 (1) 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.

• (2) 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.

Express Option

• 40 (1) 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”.

• (2) 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.

• (3) 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.

• (4) 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.

• (5) 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:

  • (a) 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);

  • (b) 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;

  • (c) 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;

  • (d) 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

  • (e) the Board shall issue a determination on the complaint within 45 days after the day on which the complaint is filed.