Determinations

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CISCO SYSTEMS CANADA CO.
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2008-012

Order and reasons issued
Thursday, July 3, 2008

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TABLE OF CONTENTS

• ORDER
• STATEMENT OF REASONS
• • COMPLAINT
  • TRIBUNAL’S DECISION

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IN THE MATTER OF a complaint filed by Cisco Systems Canada Co. under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

AND FURTHER TO a decision to conduct an inquiry into the complaint under subsection 30.13(1) of the Canadian International Trade Tribunal Act.

BETWEEN
CISCO SYSTEMS CANADA CO.	Complainant
AND
THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES	Government Institution

ORDER

Pursuant to paragraph 10(a) of the Canadian International Trade Tribunal Procurement Inquiry Regulations, the Canadian International Trade Tribunal hereby dismisses the complaint.

André F. Scott
André F. Scott
Presiding Member

Susanne Grimes
Susanne Grimes
Acting Secretary

Tribunal Member:	André F. Scott, Presiding Member
Director:	Randolph W. Heggart
Senior Investigator:	Cathy Turner
Counsel for the Tribunal:	Eric Wildhaber
Complainant:	Cisco Systems Canada Co.
Counsel for the Complainant:	Gordon LaFortune
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Susan D. Clarke
	Ian McLeod

Please address all communications to:

The Secretary
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
15th Floor
Ottawa, Ontario
K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
E-mail:

STATEMENT OF REASONS

COMPLAINT

1. On April 30, 2008, Cisco Systems Canada Co. (Cisco) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ concerning a procurement (Solicitation No. M2989-084976/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Royal Canadian Mounted Police for the provision of a telephone system.

2. Cisco alleged that PWGSC improperly issued a competitive solicitation for the requirement instead of using existing standing offers and that PWGSC improperly biased the technical specifications in favour of Nortel brand equipment on a no-substitute basis thereby failing to ensure equal access to the procurement. Cisco requested, as a remedy, that the Tribunal recommend that PWGSC cancel the procurement and satisfy the requirement through the existing standing offers. In the alternative, Cisco requested that the Tribunal recommend that PWGSC cancel the procurement and re-issue the solicitation with amendments to include performance-based criteria rather than brand-name equipment for describing the requirement. Cisco also requested its reasonable costs incurred in preparing and proceeding with its complaint.

3. On May 7, 2008, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.² On May 8, 2008, PWGSC informed the Tribunal that a contract had not yet been awarded. On May 13, 2008, Cisco filed additional information with the Tribunal. On June 16, 2008, PWGSC advised the Tribunal that, having given consideration to the particulars and circumstances of the procurement process that is the subject of the complaint, it cancelled the solicitation at issue and advised counsel for Cisco of the cancellation. PWGSC therefore requested that the Tribunal terminate its inquiry. On June 20, 2008, Cisco advised the Tribunal that it had no submissions to make on the matter.

TRIBUNAL’S DECISION

4. The Tribunal notes that PWGSC’s Request for Proposal incorporated by reference a clause by which PWGSC reserved the right to cancel the solicitation at any time.³

5. Section 30.1 of the CITT Act defines “designated contract” as “. . . 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”.

6. Paragraph 10(a) of the Regulations provides that the Tribunal may, at any time, order the dismissal of a complaint where, after taking into consideration the CITT Act, the Regulations and the applicable trade agreements, the Tribunal determines that the complaint has no valid basis.

7. Given that the solicitation was cancelled, the Tribunal determines that there is no designated contract that has been or is proposed to be awarded by PWGSC and that, therefore, the complaint has no valid basis. Consequently, pursuant to paragraph 10(a) of the Regulations, the complaint is dismissed.

8. Given that the complaint process has been terminated at such an early stage without a determination, the Tribunal will not award costs.

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¹ . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].

² . S.O.R./93-602 [Regulations].

³ . PWGSC’s “Standard Instructions – Goods or Services – Competitive Requirements” were incorporated by reference into and formed part of the bid solicitation. Part 10 reads as follows: “Canada reserves the right to: . . . (d) cancel the bid solicitation at any time . . . .”