FOUNDRY NETWORKS INC.
Orders
File No. PR-2001-061
Ottawa, Friday, May10, 2002
File No. PR-2001-061
IN THE MATTER OF a complaint filed by Foundry Networks Inc. 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.
ORDER OF THE TRIBUNAL
Pursuant to paragraph 10(a) of the Canadian International Trade Tribunal Procurement Inquiry Regulations, the Canadian International Trade Tribunal hereby dismisses the complaint.
Richard Lafontaine
Richard Lafontaine
Presiding Member
Michel P. Granger
Michel P. Granger
Secretary
| Date of Order and Reasons: |
May10, 2002 |
| Tribunal Member: |
Richard Lafontaine, Presiding Member |
| Investigation Manager: |
Paule Couët |
| Investigation Officer: |
Peter Rakowski |
| Counsel for the Tribunal: |
Philippe Cellard |
| Complainant: |
Foundry Networks Inc. |
| Government Institution: |
Department of Public Works and Government Services |
| Counsel for the Government Institution: |
David M. Attwater |
STATEMENT OF REASONS
COMPLAINT
On February 8, 2002, Foundry Networks Inc. (Foundry) 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 the establishment of a National Individual Standing Offer (NISO) (Solicitation No. 01B68-020615/A) by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Agriculture and Agri-Food (AAFC) for the procurement of internetworking equipment.
Foundry alleged that, contrary to the provisions of the North American Free Trade Agreement 2 and the Agreement on Internal Trade,3 PWGSC has limited this solicitation to the products of a particular supplier, Cisco Systems Inc. (Cisco). Specifically, it alleged that, although PWGSC and AAFC stated in the solicitation that they permitted consideration of equivalent solutions, the Request for a Standing Offer (RFSO) contained a number of stipulations and requirements that had the effect of excluding other products from consideration. Foundry further alleged that PWGSC refused to provide relevant and necessary information relating to the existing network devices being used by AAFC. Therefore, it was unable to bid on this requirement. Foundry requested that the Tribunal issue a postponement of award order.
Foundry requested, as a remedy, that the existing solicitation be cancelled and that a new solicitation be conducted in accordance with the trade agreements. In the alternative, it requested compensation for the lost opportunity to participate in the competition and to profit therefrom. Foundry also requested that it be awarded its costs incurred in preparing and proceeding with the complaint.
On February 15, 2002, 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.4 On the same day, the Tribunal issued a postponement of award order. On March 14, 2002, PWGSC filed a letter in lieu of a Government Institution Report (GIR) with the Tribunal. In this letter, it expressly denied the allegations in the complaint and advised the Tribunal that, pursuant to article A.12 of the RFSO, it was cancelling the solicitation at issue.
According to PWGSC, the RFSO was to set up a NISO for AAFC to procure certain networking equipment. It was determined that AAFC's requirements for networking equipment could be satisfied under an existing National Master Standing Offer (NMSO). PWGSC submitted that, when the RFSO was issued, it did not know if and when the NMSO would be in place. It stated that 18 suppliers, including Foundry, qualified under the NMSO. Under the circumstances, PWGSC submitted that the most expedient and prudent approach would be for the Tribunal to dismiss the complaint pursuant to section 10 of the Regulations.
On March 25, 2002, Foundry filed comments on the letter. It submitted that its complaint was well founded and that it was concerned that PWGSC had now determined that AAFC's requirements for networking equipment could be satisfied under an NMSO that was established well after the date of its complaint.
Foundry submitted that the NISO and the NMSO are two very different procurement vehicles. According to Foundry, a NISO is a procurement vehicle that is specific to one government department, in this case AAFC, and is designed to allow call-ups from the one company that was awarded a contract based on the lowest-priced bid for certain products that are specific to the department's requirements. On the other hand, the NMSO in question, under which 18 suppliers qualified, including Foundry, is designed to meet the general internetworking requirements of all federal government departments. Foundry submitted that this NMSO could potentially allow AAFC to purchase Cisco products, thus avoiding competition from companies like Foundry. It further requested that, given the differences between these standing offers, a solicitation for AAFC's requirements be conducted to allow it to submit a competitive proposal.
TRIBUNAL'S DECISION
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.
Foundry's complaint concerned alleged restrictive specifications and a refusal to provide alleged relevant and necessary information. Those two grounds of complaint related to Solicitation No. 01B68-020615/A. As indicated in the letter filed by PWGSC in lieu of the GIR, that solicitation was cancelled pursuant to article A.12 of the RFSO.5 Foundry did not contest PWGSC's right under the RFSO to cancel the solicitation. The Tribunal notes that Foundry itself, in its complaint, sought the cancellation of the solicitation and that it is one of the 18 suppliers that qualified under the NMSO. As for Foundry's allegation that the NMSO could potentially allow AAFC to purchase Cisco products, thus avoiding competition from companies like Foundry, it does not relate to the complaint under inquiry. If Foundry considered that AAFC's actions under the NMSO breached the trade agreements, the Tribunal is of the view that this would have to be the subject of a new complaint.
Given that the solicitation was cancelled pursuant to article A.12 of the RSFO, the Tribunal determines that the complaint has no valid basis. In this regard, it notes that the validity of the cancellation of the solicitation that is the subject of this complaint has not been challenged. Therefore, pursuant to paragraph 10(a) of the Regulations, the Tribunal dismisses the complaint.
With respect to Foundry's request that it be compensated for its complaint costs, the Tribunal notes that, as a general rule, it only grants complaint costs to a complainant where it determines that a complaint is valid. Moreover, it notes that, in the present inquiry, there is no indication that PWGSC acted in bad faith. Therefore, the Tribunal does not award Foundry its complaint costs.
1 . R.S.C. 1985 (4th Supp.), c. 47 [hereinafter CITT Act].
2 . 32 I.L.M. 289 (entered into force 1 January 1994).
3 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.intrasec.mb.ca/eng/it.htm>.
4 . S.O.R./93-602 [hereinafter Regulations].
5 . This clause provided: "Canada reserves its right to cancel this solicitation at any time prior to the recommendation for award of a Standing Offer. Canada will not assume any liability for bid preparation costs."
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Initial publication: May 9, 2002