Thales Canada Inc. (“Thales”) was a respondent to an Invitation to Qualify (“ITQ”) as a potential supplier in a federal procurement for the acquisition of defensive cyber solutions. The ITQ was issued by Public Services and Procurement Canada (“PSPC”) on behalf of the Department of National Defence (“DND”) and the Canadian Armed Forces (“CAF”).
On the final date for the delivery of responses to the ITQ, Thales was ready, willing and able to submit its proposal. As a result of a technical problem with the third-party platform selected by PSPC for receiving the proposals, Thales was unable to complete its submission. Thales took active steps to notify PSPC and submitted its proposal through alternative means prior to the expiration of the deadline. PSPC was immediately alerted about the technical problem, which made it impossible for Thales to submit its proposal via the platform and acknowledged receipt of Thales’ proposal via email. However, PSPC later refused to accept Thales’ proposal and consider it for pre-qualification. Thales was effectively disqualified from the procurement.
Thales filed a complaint with the Canadian International Trade Tribunal (“CITT”), challenging the government’s conduct. It has taken a position that PSPC’s refusal to enable it to submit a proposal was unfair, unjustified and contrary to its obligations under the Canadian Free Trade Agreement (“CFTA”) and the Canada-European Union Comprehensive Economic and Trade Agreement (“CETA”) and that Thales ought not to be penalized or faulted for technological failure emanating from the third-party platform prescribed by PSPC.
The government has sought to dismiss Thales’ complaint on the grounds of a national security exception under the Canadian International Trade Tribunal Procurement Inquiry Regulations. Thales is responding to the motion.
Thales has commenced a parallel proceeding in the Federal Court seeking judicial review of the government’s decision with respect to the procurement.
Fasken represents Thales with a team led by Peter Mantas and including Alexandra Logvin, Marcia Mills, Nabila Abdul Malik, and Gabrielle Cyr.
Jurisdiction
- Canada
