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TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • SUMMARY OF THE COMPLAINT
  • BACKGROUND TO THE COMPLAINT
  • ANALYSIS
  • DECISION

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

BY

ECI NETWORKS CANADA

AGAINST

SHARED SERVICES CANADA

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 complaint.

Ann Penner
Ann Penner
Presiding Member

Gillian Burnett
Gillian Burnett
Acting Secretary

The statement of reasons will be issued at a later date.

1. Subsection 30.11(1) of the Canadian International Trade Tribunal Act¹ 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.

SUMMARY OF THE COMPLAINT

1. ECI Networks Canada (ECI) filed a complaint with the Tribunal about a procurement (Solicitation No. 2B0KB-12-0634) by Shared Services Canada (SSC) for the supply and delivery of networking equipment. ECI alleged that the solicitation process was conducted in breach of the applicable trade agreements because it (1) had not been publicly posted on MERX³ and (2) required Cisco brand products without allowing for substitutes.

2. As a remedy, ECI requested that a new tender for the goods be issued, accepting equivalent products. ECI also requested that the award of the contract be postponed.

BACKGROUND TO THE COMPLAINT

3. According to ECI, SSC issued the solicitation by e-mail to a limited number of bidders on February 13, 2013. On February 17, 2013, SSC sent another e-mail to selected bidders to indicate that only Cisco brand products would be accepted.

4. ECI did not receive SSC's e-mails directly. While it did not specify how it received the e-mails, ECI explained that it understood their contents and had planned to partner with a Cisco-authorized vendor to submit a proposal for the procured goods as a sub-component provider. After learning that SSC would only accept Cisco brand products, ECI did not submit a bid because it supplies other equivalent technologies.

5. On March 3, 2013, ECI filed its complaint. The Tribunal determined that the complaint did not comply with subsection 30.11(2) of the CITT Act. Accordingly, on March 4, 2013, the Tribunal notified ECI of the deficiencies to be corrected and requested that it provide additional information pursuant to subsection 30.12(2) of the CITT Act. Specifically, the Tribunal requested the following:

- a clear and detailed statement of the events and dates that led to the filing of the complaint . . ., including how and when ECI obtained a copy of Solicitation No. 2B0KB-12-0634 and became aware that a contract had been awarded to another supplier;

- a copy of ECI's complete proposal in response to the solicitation, if any;

- all correspondence between ECI and SSC relating to this matter, if any; and

- all information and documents supporting your estimated value of the procurement ($5,800,000.00).

6. In addition, the Tribunal requested that ECI indicate whether, to its knowledge, the solicitation was a Request for Quotation issued pursuant to the Network Equipment Support Services (NESS) National Master Standing Offer (NMSO) (Solicitation No. EN578-030742/J) by the Department of Public Works and Government Services for the procurement of networking equipment from pre-qualified suppliers and whether ECI was qualified to sell networking equipment to the federal government pursuant to the NESS NMS0.

7. ECI provided additional information on March 6, 2013.

ANALYSIS

8. Upon receipt of a complaint which complies with subsection 30.11(2) of the CITT Act, the Tribunal must decide whether it meets certain conditions before conducting an inquiry. The first condition is that the complaint be filed within the time limits prescribed by section 6 of the Regulations.

9. 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.”

10. Subsection 6(2) of the Regulations provides that a potential supplier that 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.”

11. Subrule 96(1) of the Canadian International Trade Tribunal Rules⁴provides that, in the case of a complaint that does not comply with subsection 30.11(2) of the CITT Act, it will be considered filed “. . . on the day that the Tribunal receives the information that corrects the deficiencies . . . .”

12. These provisions make it clear that 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. They also make it clear that, in the case of a deficient complaint, any additional information to correct the deficiencies must be provided to the Tribunal within those 10 working days, since the complaint will only be considered filed once the requested information is received.

13. In this case, ECI filed its complaint on March 3, 2013, and provided additional information three days later. March 6, 2013, therefore, is the day on which the Tribunal considers the complaint to be filed.

14. ECI's first ground of complaint is that the solicitation was not publicly posted on MERX. The information provided in the complaint, as well as the additional information provided on March 6, 2013, indicates to the Tribunal that ECI was aware of the first e-mail on the date on which it was sent.⁵ Having become aware that the solicitation was issued by e-mail, as opposed to being posted on MERX, as early as February 13, 2013, ECI had two options to raise its concerns. First, it could have filed a complaint with the Tribunal within 10 working days of SSC's e-mail, or by February 27, 2013, pursuant to subsection 6(1) of the Regulations. Second, it could have objected to SCC by February 27, 2013, pursuant to subsection 6(2). ECI did neither; nothing was filed until the Tribunal received the complaint and additional information on March 6, 2013. The Tribunal can only conclude therefore that the first ground of complaint was not filed in a timely manner.

15. ECI's second ground of complaint is that SSC would only accept Cisco brand products. ECI indicated that SSC notified selected bidders by e-mail dated February 17, 2013, that no substitutions for Cisco brand products would be allowed to meet the requirements of the solicitation. On the basis of the information before it, the Tribunal concludes that ECI became aware of SSC's no substitution directive on February 17, 2013. Again, no evidence was filed to suggest otherwise. ECI, therefore, had 10 working days, or until March 1, 2013, to either object to SSC or file a complaint with the Tribunal on this ground of complaint. Once again, ECI did not make an objection or file its complaint with the Tribunal by the relevant date. Accordingly, the second ground of complaint also cannot be considered filed in a timely manner.

DECISION

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

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

² . S.O.R./93-602 [Regulations].

³ . Canada's electronic tendering service.

⁴ . S.O.R./91-499.

⁵ . In this regard, ECI did not claim, in its correspondence dated March 6, 2013, that it became aware of this e-mail at a later date, nor did it file evidence suggesting that this was the case.