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TABLE OF CONTENTS

• ORDER
• STATEMENT OF REASONS
  • COMPLAINT
  • TRIBUNAL’S ANALYSIS
  • ORDER OF THE TRIBUNAL

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IN THE MATTER OF a complaint filed by Enterasys Networks of Canada Ltd. pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

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

AND FURTHER TO a request filed by the Department of Public Works and Government Services on October 21, 2010, pursuant to rule 23.1 of the Canadian International Trade Tribunal Rules, requesting that the Canadian International Trade Tribunal dismiss the complaint.

BETWEEN

ENTERASYS NETWORKS OF CANADA LTD. Complainant

AND

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES Government Institution

Pursuant to subsection 30.13(5) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal has ceased to conduct its inquiry into the complaint, and the proceedings in respect of this particular complaint are terminated.

Stephen A. Leach
Stephen A. Leach
Presiding Member

Serge Fréchette
Serge Fréchette
Member

Jason W. Downey
Jason W. Downey
Member

Dominique Laporte
Dominique Laporte
Secretary

Tribunal Member: Stephen A. Leach, Presiding Member
Serge Fréchette, Member
Jason W. Downey, Member

Director: Randolph W. Heggart

Investigation Manager: Michael W. Morden

Senior Investigator: Michelle Mascoll

Counsel for the Tribunal: Nick Covelli

Complainant: Enterasys Networks of Canada Ltd.

Counsel for the Complainant: Claude-Alain Burdet

Government Institution: Department of Public Works and Government Services

Counsel for the Government Institution: David M. Attwater
Susan D. Clarke
Ian McLeod
Roy Chamoun
David Covert

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:

COMPLAINT

1. On October 4, 2010, Enterasys Networks of Canada Ltd. (Enterasys) 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. 05005-105617/A [RVD 788]) by the Department of Public Works and Government Services (PWGSC) for the supply and delivery of networking equipment.

2. Enterasys requested that the RVD be cancelled and re-tendered in compliance with the trade agreements.

3. On October 7, 2010, 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) Canadian International Trade Tribunal Procurement Inquiry Regulations.²

4. The Tribunal advised the parties that it would limit the inquiry to the following three allegations:

(1) that equipment is being purchased that is not part of the permitted category 1.1 specifications;

(2) that PWGSC was not justified to identify products by brand names and product codes in view of the provisions of the applicable trade agreements; and

(3) that there was insufficient information and insufficient time available to bid Enterasys equipment that is equivalent to the equipment identified by brand name and product code in RVD 788.

5. On October 21, 2010, PWGSC advised the Tribunal that RVD 788 had been cancelled because the product sought had indeed been improperly categorized. PWGSC also advised that it intended to solicit for the requirement under the proper product category. Given that the RVD had been cancelled, PWGSC submitted that there was no longer a designated contract and, therefore, no longer a valid basis to Enterasys’ complaint.

TRIBUNAL’S ANALYSIS

6. Pursuant to subsection 30.13(5) of the CITT Act, the Tribunal may, at any time, cease conducting an inquiry “. . . if it is of the opinion that the complaint is trivial . . . .” The ordinary meaning of “trivial” is “. . . concerned only with . . . unimportant matters.”³

7. The cancellation and planned re-tendering of the RVD provide the essential remedy that Enterasys requested. Consequently, they render the complaint moot and therefore unimportant or, in other words, trivial. The Tribunal therefore decides, pursuant to subsection 30.13(5) of the CITT Act, to cease inquiring into the complaint.

ORDER OF THE TRIBUNAL

8. Pursuant to subsection 30.13(5) of the CITT Act, the Tribunal has ceased to conduct its inquiry, and the proceedings in respect of this particular complaint are terminated.

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

² . S.O.R./93-602.

³ . Shorter Oxford English Dictionary, 5th ed., s.v. “trivial”.