TRUST BUSINESS SYSTEMS
Determinations
TRUST BUSINESS SYSTEMS
File No. PR-2007-064
TABLE OF CONTENTS
BY FACSIMILE
November 2, 2007
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| Subject: |
Solicitation No. EN869-060329/T (RVD118) |
The Canadian International Trade Tribunal (the Tribunal) (Presiding Member: Pierre Gosselin) has reviewed the above complaint submitted by Trust Business Systems (Trust) on October 25, 2007, and has decided not to initiate an inquiry into the complaint.
Trust alleged that the Request for Volume Discount (RVD) precluded vendors from offering products equivalent to the one specified, despite an “Equivalency” clause contained in the RVD. Trust also alleged that the Department of Public Works and Government Services (PWGSC) did not provide it with adequate information to allow it to bid an equivalent product.
Pursuant to section 30.11 of the Canadian International Trade Tribunal Act (CITT Act), a “. . . potential supplier may file a complaint with the Tribunal concerning any aspect of the procurement process that relates to a designated contract . . . .” Subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations requires the Tribunal to determine, among other things, whether the complainant is a potential supplier. Section 30.1 of the CITT Act defines a potential supplier as a “. . . bidder or a prospective bidder on a designated contract.”
Netgear, Inc. (Netgear) is the holder of standing offer EN578-030742/017/EW. Although an offeror may authorize an agent to act on its behalf for the purposes of performing the work under the call-ups issued against a standing offer and for the purposes of receiving payment, the standing offer in question established Netgear as the only authorized bidder, i.e. the party that ultimately bears the rights and obligations concerning the bid. According to the standing offer, the appointment of agents “. . . does not amend, diminish or modify any of the responsibilities of the Offeror under the Standing Offer. The Offeror agrees and understands that it shall be the responsibility of the Offeror to ensure that all of its Authorized Resellers and Service Outlets conform to the terms and conditions of the Standing Offer and complete any contracts resulting from Call-ups or Requests for Volume Discounts in accordance with their terms and conditions, and that, should the Reseller or Service Outlet fail to fulfill the obligations of any such contract, the Offeror shall, upon written notification from the PWGSC Cont[r]acting Authority, complete and fulfill those obligations directly at no additional cost to Canada.”
For this reason, the solicitation in the form of an RVD was sent to Netgear. The RVD indicated what was to be contained in the responding proposals. Item 2 of the mandatory criteria required that, “[i]f prices provided by a DISO [Departmental Individual Standing Offer] Agent form part of a bidder’s proposal, the DISO holder (Offeror) and Agent must sign the certification attached as Annex ‘B’ – DISO HOLDER (OFFEROR) CERTIFICATION” to the RVD. The certification states that the offeror certifies that the prices quoted by its DISO agent as part of the proposal are correct.
Consequently, the Tribunal is of the view that, notwithstanding Trust’s role as the agent of Netgear for certain purposes, it is clear that Netgear, and not Trust, remains the bidder in the solicitation. The Tribunal notes that the complaint included a letter from Netgear supporting the complaint brought by Trust. In the Tribunal’s view, however, that letter does not establish Trust as Netgear’s agent, in the legal sense, for the purpose of filing a complaint on its behalf. In other words, with respect to the filing of a complaint in relation to the standing offer in question, Netgear would have had to file a complaint on its own behalf. Of course, it would have been open to Netgear to designate Trust as its counsel or representative.
Accordingly, the Tribunal is of the opinion that Trust is not a potential supplier, as defined by the CITT Act, for the purpose of filing a complaint. As such, the Tribunal will not initiate an inquiry into the complaint and considers the matter closed.
Yours sincerely,
Hélène Nadeau
Secretary