TRUST BUSINESS SYSTEMS
Determinations
TRUST BUSINESS SYSTEMS
File No. PR-2005-027
TABLE OF CONTENTS
BY FACSIMILE
October 12, 2005
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| Re: |
Solicitation Number W3380-063267/A |
The Canadian International Trade Tribunal (the Tribunal) (Ellen Fry, Presiding Member) has reviewed the complaint submitted on behalf of Trust Business Systems (Trust) on September 30, 2005, and has decided not to initiate an inquiry into this complaint.
Trust alleged that the Department of Public Works and Government Services (PWGSC) incorrectly limited the procurement to specific manufacturers’ products (Cisco) with no provision for equivalent products. In addition, Trust alleged that PWGSC did not follow its own procedure for addressing enquiries during the solicitation stage by not publishing its questions as an amendment to the solicitation. Trust also alleged that PWGSC breached the provisions of the trade agreements by not providing it with the requested network diagram. It is Trust’s position that PWGSC cancelled the Request for Proposal (RFP) in order to avoid competition from Trust with non-Cisco products. Trust alleged that, had it not asked the questions and requested an amendment to allow Cisco or equivalent products to be proposed, then the RFP would have proceeded and only Cisco products would have been purchased.
Subsection 30.11(1) of the Canadian International Trade Tribunal Act (the CITT Act) reads, in part, that a potential supplier “may file a complaint with the Tribunal concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint.” On September 2, 2005, Trust objected to PWGSC concerning the limitation to Cisco brand switches in Solicitation Number W3380-063267/A, and requested that PWGSC revise the requirement to allow for equivalent products. In addition, Trust requested a copy of the network diagram. On September 6, 2005, PWGSC advised Trust that substitute products would not be accepted. On September 15, 2005, PWGSC advised Trust that RFP Number W3380-063267/A had been cancelled because PWGSC’s Central Administration division, Government Enterprise Network Management Services, had already negotiated a contract with some suppliers who had been pre-qualified for different parts and switches and that PWGSC’s client had been directed to that division.
Paragraph 7(1)(c) of the Canadian International Trade Tribunal Procurement Inquiry Regulations reads, in part, that the Tribunal shall, within five working days after the day on which the complaint is filed, determine whether “the information provided by the complainant … discloses a reasonable indication that the procurement has not been carried out in accordance with whichever of Chapter Ten of NAFTA, Chapter Five of the Agreement on Internal Trade, the Agreement on Government Procurement …applies”.
A “designated contract”, as defined in Section 30.1 of the CITT Act, means “a contract for the supply of goods or services that has been or is proposed to be awarded by a government institution and that is designated or of a class of contracts designated by the regulations”. Given the fact that RFP number W3380-063267/A is now cancelled, and that a contract will not result from that solicitation, the Tribunal is of the view that it does not have the jurisdiction to initiate an investigation into a complaint regarding solicitation number W3380-063267/A as there is no resulting “designated contract”.
Furthermore, regarding PWGSC’s existing contract for parts and switches, the Tribunal is of the view that, based on the information contained in the complaint, there is no reasonable indication that that procurement has not been carried out in accordance with the applicable trade agreements.
In light of the above, the Tribunal will not conduct an inquiry into this complaint and considers the matter closed.
Yours sincerely,
Hélène Nadeau
Secretary