EDUCOM TRAINING SYSTEMS INC.
Determinations
File No.: PR-99-037
Ottawa, Wednesday, May 3, 2000
File No.: PR-99-037
IN THE MATTER OF a complaint filed by EDUCOM Training Systems Inc. under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;
AND IN THE MATTER OF a decision to conduct an inquiry into the complaint under subsection 30.13(1) of the Canadian International Trade Tribunal Act.
DETERMINATION OF THE TRIBUNAL
Pursuant to section 30.14 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is not valid.
Zdenek Kvarda
_________________________
Zdenek Kvarda
Presiding Member
Michel P. Granger
_________________________
Michel P. Granger
Secretary
Date of Determination: May 3, 2000
Tribunal Member: Zdenek Kvarda
Investigation Manager: Randolph W. Heggart
Investigation Officer: Paule Couët
Counsel for the Tribunal: Tamra Alexander
Complainant: EDUCOM Training Systems Inc.
Counsel for the Complainant: Peter N. Mantas
Government Institution: Department of Public Works and Government Services
Counsel for the
Government Institution: Susan D. Clarke
David M. Attwater
STATEMENT OF REASONS
COMPLAINT
On December 16, 1999, the Canadian International Trade Tribunal (the Tribunal) received a complaint submitted by EDUCOM Training Systems Inc. (EDUCOM) under subsection 30.11(1) of the Canadian International Trade Tribunal Act [1] concerning the procurement (Solicitation No. EN875-9-0718/A) by the Department of Public Works and Government Services (the Department) for the provision by information technology professionals of third-level engineering support of office systems and sub-systems to the Department.
EDUCOM alleged that, contrary to several provisions of the North American Free Trade Agreement, [2] the Agreement on Government Procurement [3] and the Agreement on Internal Trade, [4] the Department, in conducting this solicitation, placed itself in a conflict of interest by working together with a named potential supplier (hereinafter the preferred vendor) and the "incumbents" [5] to assist them in obtaining the contract. This conduct rendered the bidding process dubious, prejudicial and discriminatory. Specifically, EDUCOM alleged that the Department provided the preferred vendor and the "incumbents" with information not available to EDUCOM and set out improper time limits in which to bid to favour the preferred vendor and the "incumbents". EDUCOM was particularly concerned that the Department was prepared to amend the Request for Proposal (RFP) closing date for the benefit of the preferred vendor, even though such amendment was considered impossible a week earlier.
EDUCOM requested, as a remedy, that the Department pay damages to EDUCOM for the Department's conduct in this solicitation and that EDUCOM be allowed to file a proposal for compensation within 30 days of receipt of the Tribunal's reasons. As well, EDUCOM requested its reasonable costs incurred in preparing a response to the solicitation and in relation to filing and proceeding with the complaint.
On January 7, 2000, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the conditions set out in section 7 of the Canadian International Trade Tribunal Procurement Inquiry Regulations. [6] On January 12, 2000, the Tribunal ordered the Department to postpone the award of any contract in connection with this solicitation until the Tribunal determined the validity of the complaint.
MOTION
On February 2, 2000, the Department filed a notice of motion requesting that the Tribunal dismiss the complaint because it was filed outside the time limits imposed by section 6 of the Regulations and, in the alternative, requesting an extension of the time to file the Government Institution Report (GIR). On February 9, 2000, EDUCOM responded to the Department's motion and filed a notice of cross-motion requesting that counsel of record for the Department, Mr. David Attwater, be removed on the grounds that his presence represents a conflict of interest and that his continued involvement in this case would create a reason for apprehension of bias by the Tribunal. EDUCOM also requested that the validity of the complaint be decided on the basis of the record as it then stood since, it alleged, the Department failed to file the GIR or request an extension to file the GIR in a timely manner.
In its response to the Department's motion, EDUCOM submitted that it filed its complaint with the Tribunal on December 16, 1999. On December 21, 1999, the Tribunal advised EDUCOM that there were deficiencies in its complaint and requested EDUCOM to correct the deficiencies before close of business on December 30, 1999. This was done.
EDUCOM submitted that it filed its complaint on time, since its December 16, 1999, communication to the Tribunal falls within 10 working days from December 9, 1999, the date on which the basis of its complaint became known. Furthermore, EDUCOM submitted that it complied with the Tribunal's direction, setting December 30, 1999, as the time limit within which to file additional information. The Tribunal, EDUCOM submitted, has the power to set such deadlines and, as appropriate, may extend or abridge the time limits fixed by the Canadian International Trade Tribunal Rules [7] or dispense with, vary or supplement any rules in order to avoid an injustice.
With respect to the basis of the complaint, EDUCOM submitted that it was only on December 9, 1999, that it became clear that the Department was designing the solicitation to suit a particular bidder, as opposed to conducting an open and fair bidding process.
Moreover, EDUCOM stated that, since the Tribunal had already decided to conduct an inquiry into the matter, which included an assessment by the Tribunal of the timeliness of the complaint, it lacks the jurisdiction to review its decision. Finally, EDUCOM submitted that, since the Department failed to serve EDUCOM with the motion, the said motion is in breach of subrule 24(3) of the Rules of Procedure and void ab initio.
On February 16, 2000, the Department submitted that it had interpreted EDUCOM's complaint as containing three distinct grounds of complaint as follows: (1) that EDUCOM was prejudiced and, therefore, unable to file a timely proposal due to a certain E-mails from the Department; (2) that the initial time limits set by the Department were improper and not based on any case of urgency and were imposed to favour one particular bidder; and (3) that solicitation amendments unfairly favoured the incumbents. The Department submitted that it understands from EDUCOM's response to the motion that EDUCOM does not intend to pursue the first two grounds. Insofar as the third ground of complaint is concerned, the Department submitted that that ground of complaint became known to EDUCOM on December 9, 1999. In the circumstances, the Department submitted, given that EDUCOM never objected to this matter to the Department and filed its complaint on this ground only on December 30, 1999, that the complaint, therefore, missed the deadline imposed by subsection 6(1) of the Regulations.
The Department submitted that, as the time limit for filing a complaint is fixed by the Regulations, it is not open to the Tribunal, pursuant to rule 8 of the Rules of Procedure, to extend the time limit for the complaint to be filed. With respect to EDUCOM's assertion that it relied on correspondence from the Secretary of the Tribunal dated December 21, 1999, that it unconditionally had until December 30, 1999, to correct deficiencies in its complaint and remain timely pursuant to section 6 of the Regulations, the Department submitted, inter alia, that EDUCOM was advised, in the said letter, that additional information was required before the complaint could be considered filed and that, following the receipt of the required information, the Tribunal would determine the timeliness of the complaint.
With respect to EDUCOM's allegation that its failure to file a timely complaint was attributable to a cause beyond its control, the Department submitted that EDUCOM admits in its response to the motion that the additional information could have been sent to the Tribunal sooner. Under the circumstances, the Department submitted, paragraph 6(3)(a) of the Regulations has no application.
With respect to the time limits in which to file the GIR and to request an extension of the period in which to file the GIR, the Department submitted that it did not receive EDUCOM's complaint until January 10, 2000, and thus had until February 4, 2000, to file the GIR under subrule 103(1) of the Rules of Procedure or to seek an extension of time under subrule 103(4). The Department also addressed the issue of the conflict of interest created by Mr. Attwater's presence. In its response, EDUCOM withdrew its cross-motion with respect to that issue.
DECISION ON MOTION
EDUCOM raised two preliminary issues. The first related to whether the Department's motion was void ab initio because it was not served upon EDUCOM by the Department, as required by subrule 24(3) of the Rules of Procedure. However, on February 3, 2000, the Tribunal sent a copy of the Department's motion to EDUCOM and gave EDUCOM until February 10, 2000, to file comments on the motion. Therefore, it is the Tribunal's view that EDUCOM was not prejudiced by the failure of the Department to serve the motion on EDUCOM. As rule 6 permits the Tribunal to dispense with, vary or supplement the Rules of Procedure and as rule 7 provides that no proceeding before the Tribunal is invalid by reason of a defect in form or a technical irregularity, the Tribunal is of the view that the motion was properly constituted despite the Department's failure to serve EDUCOM.
The second preliminary issue related to whether the Tribunal has the jurisdiction to hear a motion based on the alleged late filing of the complaint once the Tribunal has made a determination, pursuant to subsection 30.12(3) of the CITT Act, that the complaint complies with subsection 30.11(2). The Tribunal notes that paragraph 10(c) of the Regulations permits the Tribunal, at any time, to order the dismissal of a complaint where the complaint is not filed within the applicable time limits. Therefore, it is the Tribunal's view that it has jurisdiction to hear the motion.
The main issue in the motion was whether the complaint was timely. On the basis of the evidence and submissions before the Tribunal at the time of the motion, the Tribunal is of the view that the basis of the complaint became known or should reasonably have become known to EDUCOM on December 9, 1999. It was at this time that EDUCOM became aware that the bid submission date was extended beyond January 1, 2000, notwithstanding the Department's earlier refusal to extend the bid submission date on the grounds that bid completion was required prior to January 1, 2000, due to Y2K issues.
On December 16, 1999, the Tribunal received a letter from EDUCOM submitting a complaint and a request for procurement review. On December 21, 1999, the Tribunal sent a letter to EDUCOM specifying the deficiencies in the complaint and the corrective action which had to be taken in order for the complaint to comply with subsection 30.11(2) of the CITT Act. The Tribunal specified that the deficiencies had to be corrected before 5:00 p.m. on December 30, 1999. This was done.
Upon receipt of the complaint on December 16, 1999, section 30.12 of the CITT Act required the Tribunal to undertake the following:
30.12 (1) The Tribunal shall notify the complainant in writing of the receipt of the complaint.
(2) Where the Tribunal determines that a complaint does not comply with subsection 30.11(2) [which sets out the contents of a complaint], it shall notify the complainant in writing and specify the deficiencies to be corrected, the corrective action required and the period within which the action must be taken.
(3) Where the Tribunal determines that a complaint complies with subsection 30.11(2), it shall notify, in writing, the complainant, the relevant government institution and any other party that the Tribunal considers to be an interested party.
It is the Tribunal's view that subsection 30.12(2) of the CITT Act imposes on the Tribunal a substantive obligation to assist the complainant in complying with the requirements of subsection 30.11(2). Further, the Tribunal's power to specify "the period within which the [corrective] action must be taken" must be read with this obligation in mind.
The Department suggests that the Tribunal's authority under subsection 30.12(2) of the CITT Act to specify the time period within which corrective action must be taken is limited by section 6 of the Regulations, which provides as follows:
6. (1) Subject to subsections (2) and (3), a potential supplier who files a complaint with the Tribunal in accordance with section 30.11 of the Act shall do so 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.
(2) A potential supplier who has made an objection regarding a procurement relating to a designated contract 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.
(3) A potential supplier who fails to file a complaint within the time limit set out in subsection (1) or (2) may file a complaint within the time limit set out in subsection (4), if the Tribunal determines, after considering all of the circumstances surrounding the procurement, including the good faith of the potential supplier, that (a) the failure to file the complaint was attributable to a cause beyond the control of the potential supplier at the time the complaint should have been filed in order to meet the requirements of subsection (1) and (2); or (b) the complaint concerns any aspect of the procurement process, of a systemic nature, relating to a designated contract, and compliance with one or more of Chapter Ten of NAFTA, Chapter Five of the Agreement on Internal Trade and the Agreement on Government Procurement.
(4) A complaint under subsection (3) may not be filed later than 30 days after the day the basis of the complaint became known or reasonably should have become known to the potential supplier.
Effectively, the Tribunal's authority to "specify the date" is simply a procedural step with no substantive element. Therefore, it becomes necessary for the Tribunal to determine the nature of the authority conferred on it by subsection 30.12(2) of the CITT Act.
It is the Tribunal's view that its authority to set the date by which the corrective action must be taken forms a key and necessary component of the Tribunal's obligation to inform the complainant of the deficiencies in the complaint. In order for the Tribunal's obligation to be effective, the authority to set the date for corrective action must be substantive. If the Tribunal were unable to set a date that provided the complainant with a reasonable time to respond, given the circumstances of the case and taking into consideration the purpose of the bid challenge provisions, the Tribunal's assistance to the complainant in pointing out the complaint's deficiencies, particularly at the end of the 10-working-day time frame, could be empty of meaning or effect. Therefore, it is the Tribunal's view that subsection 30.12(2) of the CITT Act confers on the Tribunal the substantive authority to set the date by which the complainant must respond, including a date outside the 10 days provided for in the Regulations.
The Tribunal notes that it is a well-established principle of statutory interpretation that regulations (subordinate legislation) cannot "amend, alter, enlarge or limit the substantive terms" of an Act. [8] As the Tribunal finds that its authority to set the date by which the complainant must respond is substantive, the Tribunal is of the view that the provisions of the Regulations, as subordinate legislation, cannot and do not override that authority.
This interpretation is supported by very practical considerations faced by the Tribunal at this early stage in the proceedings. Often, the initial information provided by the complainant is not sufficient for the Tribunal to determine the time at which the grounds of the complaint became known or reasonably should have become known to the complainant. The Tribunal requires the additional information, sought pursuant to subsection 30.12(2) of the CITT Act, in order to make that determination and, therefore, the determination of the timeliness of the complaint pursuant to the Regulations. However, subsection 30.12(2) requires the Tribunal to set the date by which the corrective action must be taken. If the terms of the Regulations can override the Tribunal's authority to set a date for providing additional information to correct deficiencies outside the 10-day limit for filing a complaint, it would severely restrict the meaningfulness of subsection 30.12(2) and render it a disservice to complainants who rely on the Tribunal's directions by replying on the date set by the Tribunal. Allowing the Tribunal to exercise this provision in a substantive manner, keeping in mind the need to provide a timely and effective bid dispute process, one which does not unduly impair the federal government's ability to effectively conduct its business, is consistent with the purposes and objectives of the CITT Act and the agreements giving rise to the federal government's bid protest obligations. [9]
In requiring EDUCOM to correct the deficiencies, the Tribunal exercised its substantive discretionary authority to set the date by which that action must be taken. In exercising its discretion to set that date, the Tribunal was mindful of the purpose of the bid challenge provisions and their emphasis on the timely resolution of disputes. The complaint was submitted within the 10-working-day time frame set out in the Regulations and the time frame for corrective action set by the Tribunal extended that time frame with respect to the proper "filing" [10] of the complaint only to the extent necessary to give EDUCOM a reasonable time to respond, given the time that it took the Tribunal to communicate the list of deficiencies to EDUCOM.
Finally, the Tribunal also notes that subsection 6(3) of the Regulations permits a complainant to file a complaint beyond the 10-working-day time frame set out in subsection 6(1) of the Regulations where the failure of the complainant to file within that time frame was attributable to a cause beyond the control of the complainant. In the Tribunal's view, given the Tribunal's obligation to assist the complainant in complying with the requirements of subsection 30.11(2) of the CITT Act, where the Tribunal takes a significant amount of time (in the context of the 10-working-day time limit) to provide the complainant with notice of the deficiencies in the complaint, the complainant's failure to file the complaint within the 10-working-day time limit is attributable to a cause beyond its control. Therefore, in the context of this case, the Tribunal is of the view that the extended 30-day time limit provided for in subsection 6(3) of the Regulations is applicable. For these reasons, the Tribunal dismissed the Department's motion and determined that the complaint was timely.
As noted above, EDUCOM raised two issues in its cross-motion. It requested that the Tribunal assess the complaint on the basis of the administrative record before it and without the benefit of the GIR because, it was alleged, the GIR was not submitted within the time limits set out in the Rules of Procedure and a request for an extension to file the GIR was not submitted within the time limits also set out in the Rules of Procedure. Subrule 103(4) of the Rules of Procedure requires the Department to request an extension to file the GIR not later than 25 days after the Department receives the complaint from the Tribunal. As evidenced by the date stamp on the Department's copy of the Tribunal's covering letter, the complaint was received by the Department on January 10, 2000. As EDUCOM has presented no evidence to dispute the date of receipt, the Tribunal accepts that date as the date of receipt by the Department. The Department, therefore, had until February 4, 2000 to make its request for an extension of time. Since the request was made on February 2, 2000, the Tribunal found that it was timely and dismissed this ground for the cross-motion.
In its response of February 22, 2000, EDUCOM withdrew its request that Mr. Attwater be removed as counsel of record on the grounds that his continued involvement in the case would create a reasonable apprehension of bias due to his former role as counsel for the Tribunal. For these reasons, the Tribunal dismissed EDUCOM's cross-motion.
On March 9, 2000, the Department filed a GIR with the Tribunal in accordance with rule 103 of the Rules of Procedure. On March 21, 2000, EDUCOM filed comments on the GIR with the Tribunal. On March 28 and 31, 2000, the Tribunal asked the Department to answer a number of questions. On April 5, 2000, the Department responded. EDUCOM filed comments on the Department's response on April 12, 2000. The Department also filed a submission on that date. On April 13, 2000, EDUCOM and the Department filed additional submissions with the Tribunal, and on April 14, 2000, EDUCOM filed final submissions with the Tribunal.
Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that a hearing was not required and disposed of the complaint on the basis of the information on the record.
PROCUREMENT PROCESS
To simplify contract administration and to obtain a more cohesive and well-defined contract, the Department decided to procure a number of third-level support functions that it previously secured through numerous contracts with seven different companies through a single contract with one vendor.
On November 12, 1999, an RFP was advertised as a Notice of Proposed Procurement (NPP) on Canada's Electronic Tendering Service (MERX) and in Government Business Opportunities.
The original closing date in the RFP was December 10, 1999. This represented a reduction of 15 days from the normal minimum 40-day bidding period under NAFTA and the AGP. The reduction was requested by the Department to ensure that there would be no interruption in service and that the Department would be in a good position to address potential problems arising during the Y2K rollover period.
During the bidding period, the Department received a number of questions and comments from potential suppliers concerning the restrictive nature of certain mandatory requirements in the RFP. Specifically, on November 19, 1999, a prospective bidder, other than EDUCOM or the preferred vendor, asked that the period to bid be extended by "at least" three weeks. The Department did not grant this request because a contract needed to be in place before the end of December 1999 due to the critical time period for Y2K rollover. According to the GIR, the Department assumed that the problems raised in the request were unique to the requestor. On December 3, 1999, another bidder, again not EDUCOM or the preferred vendor, requested a "4-6 week" extension for the submission of proposals due to the complex nature of the requirements. On December 7, 1999, the Department informed bidders that the mandatory requirements contained in the Statement of Work (SOW) and evaluation criteria would be amended to make them less restrictive. At the same time, bidders were informed that the bid closing date had been extended to January 10, 2000, to allow bidders to react, as appropriate, to the revised SOW and evaluation criteria.
EDUCOM filed its complaint with the Tribunal on December 30, 1999.
POSITION OF PARTIES
Department's Position
With respect to EDUCOM's allegation that the Department amended the RFP, including the bid closing date, in order to assist the preferred vendor, the Department submitted that no evidence was tendered to support this allegation. More specifically, the Department submitted that no evidence was tendered supporting EDUCOM's allegation that the Department was aware that the preferred vendor was experiencing particular problems with the RFP; that it was unable to submit a compliant bid before December 10, 1999; that the Department was motivated to assist the preferred vendor; that the changes to the mandatory requirements and bid closing date were designed to benefit the preferred vendor; and that these changes specifically benefited the preferred vendor.
The Department argued that, contrary to EDUCOM's allegation, the preferred vendor did not ask for an extension of the bid closing date. Furthermore, the Department asserted that it did not meet with the preferred vendor during the bidding period or communicate by any means with the preferred vendor for the purposes alleged by EDUCOM. As well, contrary to EDUCOM's assertion, the amendments to the RFP did not change, in any way, the requirement that the third-level support be delivered on site.
The Department submitted that it extended the period in which to submit bids because, as a result of a "chorus" of questions and comments about the restrictive nature of certain mandatory conditions in the RFP, it had become apparent that a number of potential bidders had difficulty putting together a proposal, thus threatening the competitive nature of the process and acquisition of the required services. Since, according to the Department, many of the requirements could be amended or deleted without threatening the procurement of the required quality services, the Department changed some of these requirements and provided potential bidders with a reasonable time to consider the amendments and respond to the changes, as required by the trade agreements.
The Department requested its complaint costs and emphasized in its final submission that EDUCOM's complaint was frivolous and vexatious and amounted to an abuse of process.
EDUCOM's Position
EDUCOM submitted that the Department's agreement to amend the bid closing date was only the "final link" allowing it to understand that the RFP, as drafted, favoured the preferred vendor. The bidding period, EDUCOM submitted, was truncated unnecessarily and without valid reasons. This was done, EDUCOM argued, because the Department was confident that the incumbents under a single vendor, the preferred vendor, would be the successful bidders. EDUCOM submitted that the incumbents alone could have met the requirements as drafted in the original RFP. It is only when the incumbents were informed that they might be contravening the Competition Act [11] and that some of the incumbents pulled out of their exclusive work arrangement with the preferred vendor [12] that the Department, realizing that the preferred vendor could not be compliant, agreed to extend the bid closing date and to rewrite the requirement for the resources requested. This, EDUCOM submitted, is the nature of its complaint, i.e. the preferential treatment extended to the preferred vendor.
TRIBUNAL'S DECISION
Section 30.14 of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its consideration to the subject matter of the complaint. Furthermore, at the conclusion of the inquiry, the Tribunal must determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been observed. Section 11 of the Regulations further provides that the Tribunal is required to determine whether the procurement was conducted in accordance with NAFTA, the AGP and the AIT.
Article 1012(2)(a) of NAFTA and Article XI (2)(a) of the AGP provide that, in open tendering procedures, the period for the receipt of tenders shall not be less than 40 days from the date of the NPP. The above-mentioned period may be reduced to no less than 10 working days where, for example, a state of urgency, duly substantiated, renders impracticable the 40-day period. [13]
EDUCOM alleged that the Department unnecessarily truncated the bidding period in this instance. The Tribunal finds that EDUCOM should reasonably have known this ground of complaint on or about November 12, 1999, when the RFP was published. However, EDUCOM only raised the matter in the complaint that it filed with the Tribunal on December 30, 1999, which date clearly falls outside the 10-working-day time frame prescribed in subsection 6(1) of the Regulations to file a complaint. Therefore, this ground of complaint is late, and the Tribunal will not assess it on its merits.
With respect to EDUCOM's allegation that the Department failed to treat all bidders equally as provided for by Article 1008 of NAFTA and Article VII of the AGP, the Tribunal finds that there is no merit to this allegation.
EDUCOM made a number of assertions indicating that, in conducting this procurement process, the Department acted so as to assist and facilitate the preferred vendor and the incumbent's success, to the detriment of other bidders. The Tribunal has found no conclusive evidence on the record of such behaviour on the part of the Department. There was no such evidence in the GIR, in the additional information provided by the Department on April 5, 2000, in answer to the Tribunal's requests of March 28 and 30, 2000, or in EDUCOM's complaint and submissions. In fact, the evidence on the record shows that vendors other than the preferred vendor requested the extensions and that vendors, other than the preferred vendor, sought formal clarifications. Furthermore, the Tribunal finds no evidence on the record showing that the Department favoured the preferred vendor or the incumbents over any other vendor or that the modifications of certain mandatory requirements and the extension of the bidding period to January 10, 2000, were of particular assistance to the preferred vendor. EDUCOM cited one concrete example of a requirement allegedly relaxed, specifically to help the preferred vendor's bid to be compliant to the RFP. However, the requirement that third-level support information technology personnel be on site, which was set out in the original RFP, in fact, was not changed in the amendments to the RFP.
The Department has requested its costs in the matter. The Tribunal has decided that the circumstances of this case do not warrant costs against EDUCOM. While EDUCOM's complaint is not valid, in the Tribunal's opinion, it is not frivolous or vexatious.
DETERMINATION OF THE TRIBUNAL
In light of the foregoing, the Tribunal determines that the procurement was conducted in accordance with the requirements of the trade agreements and that, therefore, the complaint is not valid.
1. R.S.C. 1985 (4th Supp.), c. 47 [hereinafter CITT Act].
2. 32 I.L.M. 289 (entered into force 1 January 1994) [hereinafter NAFTA].
3. Annex 4 to the Agreement on Government Procurement, 15 April 1994, online: World Trade Organization Homepage
4. As signed at Ottawa, Ontario, on 18 July 1994 [hereinafter AIT].
5. In this determination, the term "incumbents" refers individually or collectively to persons currently performing the services that are the object of this solicitation. These persons are consultants working for a variety of vendors.
6. S.O.R./93-602 [hereinafter Regulations].
7. S.O.R. 91/499 [hereinafter Rules of Procedure].
8. Philips v. Atlantic Lottery Corp., [1992] N.B.J. No. 570 (C.A.), citing Opron Inc. v. Emco Limited (1980), 29 N.B.R. (2d) 422. See also, Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Belanger v. Canada (1916), 54 S.C.R. 265.
9. For example, Article 1017(f) of NAFTA provides that a supplier shall have no less than 10 working days from the time the basis of the complaint became known or should have become known to the supplier to initiate a bid challenge.
10. Rule 96 of the Rules of Procedure.
11. R.S.C. 1985, c. C-34.
12. Educom submitted that the incumbents signed non-competition agreements with the preferred vendor in support of the preferred vendor's bid.
13. Article 1012(3)(c) of NAFTA and Article XI (3)(c) of the AGP.
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Initial publication: May 3, 2000