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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • DECISION

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IN THE MATTER OF 22 complaints filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47

BY

ENTERASYS NETWORKS OF CANADA LTD.

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

Pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal has decided not to conduct an inquiry into the complaints.

Stephen A. Leach
Stephen A. Leach
Presiding Member

Dominique Laporte
Dominique Laporte
Secretary

1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act ¹ provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations,² a potential supplier may file a complaint with the Canadian International Trade Tribunal (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. Subsection 30.13(1) of the CITT Act provides that, subject to the Regulations, after the Tribunal determines that a complaint complies with subsection 30.11(2) of the CITT Act, it shall decide whether to conduct an inquiry into the complaint.

2. The complaints relate to procurements (Solicitation Nos. 45045-090114/A [RVD 732], W8474-105448/A [RVD 738], W0106-09613B/B [RVD 695(2)], W8474-105450/A [RVD 729], W3078-10C082/A [RVD 733], W8474-105446/A [RVD 730], EN869-104113/A [RVD 735], 5P041-091006/A [RVD 736], W8474-105447/A [RVD 739], EN869-103849/B [RVD 716], W0103-10JK40/A [RVD 724], W0117-095460/A [RVD 742], W010S-10D282/B [RVD 711], 23240-103817/B [RVD 728], W7714-093847/A [RVD 748], W8474-105439/A [RVD 744], W8474-105451/A [RVD 745], 5P421-091026/A [RVD 747], 39903-100603/A [RVD 750], W0113-100475/A [RVD 751], EN869-104307/A [RVD 755] and EN869-104307/B [RVD 756])³ by the Department of Public Works and Government Services (PWGSC) on behalf of various government departments for the supply of networking equipment. All RVDs were issued under National Master Standing Offer (NMSO) No. EN578-030742/000/EW.

3. Enterasys Networks of Canada Ltd. (Enterasys) alleges that PWGSC: (1) did not confirm with the client departments that the line items in the above-noted RVDs, which were to be limited to either category 1.1 or category 1.2 Local Area Network (LAN) switches, met the minimum technical requirements for those categories as defined in the NMSO; (2) failed to disclose crucial evaluation criteria information by not providing the client departments’ technical justifications (TJs) to Enterasys during the bidding period; and (3) did not forward the questions posed by Enterasys during the enquiry periods to the client departments.

4. The Tribunal notes that it has already conducted an inquiry into complaints relating to the 22 RVDs in question that were previously filed by Enterasys (File Nos. PR-2009-132 to PR-2009-153).⁴ Thus, this is the second series of complaints filed by Enterasys regarding the procurements at issue. According to Enterasys, the aforementioned allegations constitute new grounds of complaint relating to these procurements.

5. Subsection 6(1) of the Regulations provides that a complaint shall be filed with the Tribunal “. . . not later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier.”

6. Subsection 6(2) of the Regulations states that “[a] potential supplier who has made an objection . . . to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier.”

7. In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have become aware, of its ground of complaint to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.

8. In its complaints, Enterasys claims to have made an objection to the Tribunal on June 22, 2010, regarding the contents of documents provided by PWGSC in response to a Tribunal order dated May 28, 2010, for the production of certain documents relating to the subject RVDs.⁵ Enterasys claims that this objection resulted in a request by the Tribunal to PWGSC and that PWGSC’s response to the Tribunal’s request (i.e. PWGSC’s filing of July 26, 2010) was PWGSC’s response to Enterasys’ objection. On that basis, Enterasys submits that its complaints were filed within the time limits prescribed by the Regulations since they were filed within 10 working days after July 26, 2010.⁶ However, the Tribunal notes that Enterasys’ alleged objection was in the form of a letter to the Tribunal, in which Enterasys complained that PWGSC failed to comply with the Tribunal’s order for the production of documents in the context of File Nos. PR-2009-132 to PR-2009-153 and breached section 46 of the CITT Act regarding the designation of confidential information. In the Tribunal’s opinion, this letter does not raise any issues or grievances with the procurement processes at issue per se and was not addressed to the government institution that issued the solicitation documents, that is, PWGSC.

9. As a matter of law, an objection must be sufficiently precise in identifying those aspects of the procurement process with which the objector takes issue. In Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services),⁷ the Federal Court of Appeal confirmed a finding of the Tribunal that a complainant’s letter to PWGSC could only be considered an objection to those aspects of the procurement process to which it expressly referred. Also, the “relevant government institution” for purposes of receiving objections relating to a procurement process is the government institution that issued the solicitation documents and is responsible for the procurement, not the Tribunal.

10. In this case, Enterasys’ June 22, 2010, letter does not refer to any aspect of the procurement processes at issue. Rather, it pertains to alleged shortcomings of PWGSC in complying with the provisions of the CITT Act and a Tribunal order during the course of an inquiry. Thus, the Tribunal does not consider that Enterasys’ letter constitutes a valid objection and, therefore, finds that the deadline for filing a complaint with the Tribunal with respect to the aspects of the procurement processes to which Enterasys referred in its complaints is governed by subsection 6(1) of the Regulations.

11. The Tribunal must therefore decide whether the complaints were filed within 10 working days from the date on which Enterasys first became aware, or reasonably should have become aware, of its grounds of complaint. According to Enterasys, the documents disclosed by PWGSC on July 26, 2010, in relation to the previous complaints, “have proven” that PWGSC did not forward its questions to the client departments during the enquiry periods of the RVDs. Enterasys further claims that, after reviewing the letter and documents provided by PWGSC on July 26, 2010, “. . . it became clear that PWGSC did not confirm with the client department that the Technical Justification (TJ) and technical requirements for each item in Annex A of each RVD met the minimum requirements for each Category, and PWGSC failed to disclose crucial evaluation criteria information by not providing these technical justifications to Enterasys.” More generally, Enterasys claims that, at the outset of its complaints, a statement made in PWGSC’s July 26, 2010, letter is “. . . further evidence that supports our grounds for complaint . . . .”

12. The Tribunal considers that these statements, which indicate that the letter and documents filed by PWGSC on July 26, 2010, constitute additional supporting evidence for previously existing or known grounds of complaint, suggest that the basis of the complaints became known, or reasonably should have become known, to Enterasys before July 26, 2010.⁸ In this regard, the Tribunal finds it important to emphasize that the comments on the Government Institution Report (GIR) filed by Enterasys on July 7, 2010, in the context of the Tribunal’s inquiry in File Nos. PR-2009-132 to PR-2009-153, contain allegations that are similar, if not identical, to the three grounds that Enterasys has raised in the present complaints.

13. In particular, the Tribunal notes, in relation to the public documents filed by PWGSC on July 2, 2010, in compliance with the Tribunal’s order for the production of documents in the context of File Nos. PR-2009-132 to PR-2009-153, that Enterasys’ comments included a letter dated July 7, 2010, signed by one of its employees, which alleged as follows:

• For all of the RVD’s, the documents from PWGSC show that they did not send the questions to the end user departments that were asked by Enterasys during the enquiries period. In the case of each RVD, the TJs were requested, and it is clear from PWGSC’s email that TJ’s did exist; however, PWGSC refused to forward them to the bidders. . . .

. . . 

• With respect to several of these RVD’s, PWGSC’s email [shows] that there are even internal issues as to what Categories the RVD items fall into. . . .
• Several of the documents from PWGSC confirm through PWGSC’s email to the departments, that the minimum specifications of the categories, shown in Annex A, Appendix A of the Standing Offer, must be met in the RVD. Despite this, these emails also illustrate how PWGSC failed to ensure that this requirement was met.

[Emphasis added]

14. The Tribunal further notes that a witness statement,⁹ filed by counsel for Enterasys in both series of complaints and originally filed on July 7, 2010, in the context of the Tribunal’s inquiry in File Nos. PR-2009-132 to PR-2009-153, addresses the contents of the documents provided by PWGSC on July 2, 2010, and includes the following allegation: “It is clear that PWGSC has obtained the criteria for evaluating Enterasys bids that meet and exceed the category generic specifications, and yet it has been my experience, since the [Networking Equipment Support Services Departmental Individual Standing Offer] began, and in the case of the RVD’s that are the subject of this complaint,^[10] that PWGSC has consistently refused to provide this crucial evaluation criteria information. This is clearly demonstrated in the case of every RVD when reviewing the emails and ‘Technical Justifications’ that are in the public disclosure of documents from PWGSC.”

15. The Tribunal considers that the above statements confirm that the basis of the current complaints became known, or reasonably should have become known, to Enterasys before July 26, 2010. Indeed, the contents of Enterasys’ comments on the GIR filed on July 7, 2010, which includes allegations that are virtually identical to those raised in the present complaints, demonstrate that Enterasys was aware of its grounds of complaint at the beginning of July 2010 when it reviewed the public documents provided by PWGSC on July 2, 2010, in the context of the Tribunal’s inquiry in File Nos. PR-2009-132 to PR-2009-153. Indeed, it is reasonable to conclude that Enterasys was aware of the basis of its complaints on July 7, 2010, at the latest, that is, the day on which it filed with the Tribunal documents that included the aforementioned allegations. Therefore, in accordance with subsection 6(1) of the Regulations, Enterasys had to file its complaints relating to these allegations not later than July 21, 2010 (i.e. 10 working days after July 7, 2010). However, Enterasys’ complaint form in this matter was filed with the Tribunal on August 10, 2010.

16. That being the case, the Tribunal finds that Enterasys’ complaints were filed outside the time limit prescribed by subsection 6(1) of the Regulations. In light of the foregoing, the Tribunal will not conduct an inquiry into the complaints and considers the matter closed.

DECISION

17. Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaints.

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

² . S.O.R./93-602 [Regulations].

³ . The 22 RVDs in question were each considered to be separate procurement processes and were assigned separate file numbers (i.e. PR-2010-024 to PR-2010-045).

⁴ . The Tribunal issued its determination regarding these complaints on August 9, 2010.

⁵ . As noted above, the Tribunal conducted an inquiry into previously filed complaints regarding the same RVDs, i.e. File Nos. PR-2009-132 to PR-2009-153. During the course of that inquiry, on May 28, 2010, the Tribunal ordered PWGSC to file all information, including all TJs and related correspondence, which underlay the description of the procurement requirements with a reference to particular trademarks or brand names that were sent by client departments to PWGSC with respect to the solicitations at issue. In response, PWGSC filed confidential and public documents with the Tribunal on June 11, 2010. On the same date, a public version of the documents filed by PWGSC was provided to Enterasys. Further to correspondence dated June 14 and 22, 2010, from Enterasys alleging that some information filed had been improperly designated as confidential information by PWGSC, on June 24, 2010, the Tribunal requested PWGSC to comply with the requirements of section 46 of the CITT Act in this regard. On July 2, 2010, PWGSC filed a revised public version of the documents filed on June 11, 2010, and a copy of the revised public documents was served on Enterasys on the same date. Subsequently, on July 14, 2010, the Tribunal requested PWGSC to confirm, by July 16, 2010, that it had fully complied with the Tribunal’s order of May 28, 2010. PWGSC replied to this request on July 26, 2010, by stating that a further review of PWGSC’s files revealed the existence of additional documents for RVDs 730, 736 and 739, but no such documents for the remaining RVDs. A public version of the additional documents was attached to PWGSC’s July 26, 2010, letter and was served on Enterasys on that date.

⁶ . The Tribunal notes that Enterasys’ complaint form was filed on August 10, 2010, that is, on the tenth working day after July 26, 2010.

⁷ . 2000 CanLII 16572 (F.C.A.).

⁸ . However, since the complaint form was filed 10 working days after July 26, 2010, in order to conclude that the complaints were filed within the time limit prescribed by subsection 6(1) of the Regulations, the Tribunal must be persuaded that the basis of the complaints did not become known, or reasonably should not have become known, to Enterasys before July 26, 2010.

⁹ . Comments on the GIR, July 7, 2010, File Nos. PR-2009-132 to PR-2009-154, Exhibit 5 at para. 45.

¹⁰ . These are the same RVDs that are at issue in the current set of complaints.