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Procurement
Determinations
File No. PR-2001-034
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Ottawa, Tuesday, January 22, 2002
File No. PR-2001-034
IN THE MATTER OF a complaint filed by Diversicomm Data Systems 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 subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is not valid.
Richard Lafontaine
Richard Lafontaine
Presiding Member
Michel P. Granger
Michel P. Granger
Secretary
The statement of reasons will follow at a later date.
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Date of Determination: |
January 22, 2002 |
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Date of Reasons: |
January 25, 2002 |
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Tribunal Member: |
Richard Lafontaine, Presiding Member |
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Investigation Manager: |
Paule Couët |
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Counsel for the Tribunal: |
Michèle Hurteau |
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Complainant: |
Diversicomm Data Systems |
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Counsel for the Complainant: |
Ronald D. Lunau |
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Government Institution: |
Department of Public Works and Government Services |
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Counsel for the Government Institution: |
David Attwater |
Ottawa, Friday, January 25, 2002
File No. PR-2001-034
IN THE MATTER OF a complaint filed by Diversicomm Data Systems 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.
STATEMENT OF REASONS
COMPLAINT
On October 24, 2001, Diversicomm Data Systems (Diversicomm) 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 procurement (Solicitation No. 60074-010017/A) by the Department of Public Works and Government Services (PWGSC) for the provision of Local Area Network (LAN) switches and configuration management software as well as the support and maintenance of the proposed network devices and software on behalf of the Department of Finance (Finance) and the Treasury Board Secretariat (TBS).
Diversicomm alleged that PWGSC erred in rejecting Diversicomm's bid as non-compliant when it applied an evaluation methodology and criteria that are not identified in, and are inconsistent with, the tender documents and that violate the North American Free Trade Agreement, 2 the Agreement on Internal Trade 3 and the Agreement on Government Procurement. 4 Specifically, Diversicomm submitted that PWGSC had failed to observe the criteria and the evaluation methodology in declaring its offer non-compliant for not meeting the requirements of two articles of the Request for Standing Offer (RFSO), i.e for failing to provide technical brochures and documentation to fully describe the proposed equipment (article B.2ii)d)) and for failing to meet the mandatory requirement of article 1.16.8. of Annex A to Appendix C to the RFSO.
Diversicomm requested that the Tribunal issue an order directing PWGSC, Finance and TBS not to award any contract until the Tribunal had determined the complaint. As a remedy, Diversicomm requested that it be awarded the standing offer as the only compliant bidder. In addition, Diversicomm requested that it be awarded its costs incurred in relation to preparing and filing the complaint.
On October 31, 2001, 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. 5 The Tribunal also ruled that, as no contract was proposed to be awarded under Solicitation No. 60074-010017/A, it would not issue a postponement of award order.
On November 26, 2001, PWGSC filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules. 6 On December 7, 2001, Diversicomm filed comments on the GIR with the Tribunal. On December 13, 2001, PWGSC requested the right to respond to Diversicomm's comments on the GIR on the grounds that Diversicomm had made allegations of bias against PWGSC and had raised new grounds. On December 14, 2001, the Tribunal granted PWGSC's request. The Tribunal also granted Diversicomm the opportunity to comment on PWGSC's submissions. On December 19, 2001, PWGSC filed its submissions on Diversicomm's comments on the GIR and, on December 27, 2001, Diversicomm filed its final comments in response.
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
On June 29, 2001, a Notice of Proposed Procurement and an RFSO, with a closing date of August 13, 2001, were published on MERX. 7 By amendment, the bid closing date was extended to August 20, 2001. The procurement was identified as being subject to the provisions of NAFTA, the AGP and the AIT.
A total of eight modifications were issued during the bid solicitation period. Seven proposals were submitted in response to the RFSO. Following the technical evaluation, all offers were declared non-compliant with the mandatory requirements of the RFSO. Diversicomm and all the other bidders were told that the Crown would revise the solicitation in order to clarify its requirement and would reissue a revised solicitation. To assist Diversicomm with the revised solicitation, PWGSC gave it a list of items showing where its offer was non-compliant with the mandatory requirements of the RFSO.
On September 26, 2001, PWGSC advised Diversicomm that its offer had been found to be non-compliant with the mandatory requirement of the RFSO to provide certain technical brochures and documentation. On October 3, 2001, Diversicomm objected to the grounds upon which its offer was found non-compliant by PWGSC. It asked that its offer be reviewed and that a meeting with PWGSC be set. PWGSC met with Diversicomm on October 9 and again on October 11, 2001. At the October 11, 2001, meeting, Diversicomm, Foundry Networks (Foundry), which was Diversicomm's supplier of the proposed equipment, PWGSC and the Technical Authority from Finance and TBS discussed the compliance of Diversicomm's offer with the mandatory requirements of the RFSO. Later that day, PWGSC confirmed, in an e-mail message to Diversicomm, that its offer was non-compliant and formally dismissed the objection.
On October 12, 2001, PWGSC advised Diversicomm, by electronic mail, that its offer was non-compliant with article 1.16.8. of Annex A to Appendix C to the RFSO. 8 There was an exchange of correspondence on the parties' views as to the meaning of article 1.16.8. On October 18, 2001, PWGSC advised Diversicomm that its position would be presented to PWGSC's legal counsel for review and comment. No further comments were provided to Diversicomm prior to the date of filing of its complaint with the Tribunal on October 24, 2001.
On November 9, 2001, PWGSC advised Diversicomm that it had identified further grounds of non-compliance in its bid, including non-compliance with article 1.6.7. of Annex A to Appendix C to the RFSO. 9 Correspondence on these new grounds was exchanged between the parties. On November 14, 2001, PWGSC advised Diversicomm that its clarification would be considered in any re-evaluation of Diversicomm's offer, should the Tribunal recommend such a re-evaluation.
The following provisions of the RFSO are relevant to this case.
A.1 Requirement Categories (I)
i) Mandatory Requirements
Where an element of this RFSO is mandatory it will be identified specifically with the word "Mandatory", an "(M)", or with a statement covering a section of this document. The words "shall", "must", "essential" and "will" in this RFSO are to be interpreted as mandatory requirements. Failure to comply with a mandatory requirement will result in elimination of an offer from further consideration.
ii) Rated Elements
Where an element of this RFSO is rated it will be identified specifically with the word "Rated", an "(R)", or with a statement covering a section. The Bidder is not required to respond to rated elements or comply with rated clauses, except where such [an] element is identified as being mandatory; however, offers which do address rated elements will be allocated points in accordance with the Compliance Matrix at Appendix J.
B.1 Presentation of Offers (I) & (M)
vii) Responses to technical requirements must include a narrative which substantiates the response. Where it is necessary to refer to other documentation which is included with the offer, the Bidder should include the precise location in the reference material including the title of the document, and the page and paragraph numbers.
An example of the required response format is:
|
Article |
Response |
Description |
Reference |
| 5.1.4 |
Comply |
The proposed system supports the IEEE 802.3 standard. |
Spec. Sheet, Page 10, para. 12 |
B.2 Technical Offer
ii) Mandatory Requirements for Technical Proposal (M)
It is MANDATORY that the Technical Proposal, submitted in writing, contain the following:
b) a response for each article of Sections A, B, C, D, the Statement of Work (Appendix A), LAN Requirements and Architecture Requirements (Appendix C), and Annexes A, B and C to Appendix C, of this RFSO. This response must consist of one of the following three choices:Comply: Where the offer complies with the article in all respects. With the exception of the technical requirements referred to herein, no further explanation is necessary;
d) technical brochures and documentation (as applicable) to fully describe the proposed equipment;
C.3 Evaluation and Selection Methodology (I)
iv) Phase 1: Contractual and Technical Evaluation of Mandatory Requirements:
a) Each offer shall be reviewed for compliance with all mandatory requirements of this RFSO by ensuring:
3) Appendix I, Mandatory Compliance Matrix - Technical Requirements and Appendix J, Rated Compliance Matrix - Technical Requirements and the technical narrative response for each article demonstrates and supports that the offer meets the mandatory requirements of the RFSO;v) Phase 2: Point Rated Evaluation:
a) Offers will be evaluated and scored in accordance with specific evaluation criteria as follows:
2) In order to obtain the maximum 10 points per rated item, the Bidder must demonstrate that it meets the rated requirement exactly as stated in Appendix J. Bidders offering an alternate proprietary protocol will be awarded 5 points per item.
b) Any offer that does not obtain a minimum score of 5 points FOR EACH RATED ITEM, for a minimum overall score of 790 points (740 points mandatory requirements and 50 points for rated requirements), will be considered non-compliant and will receive no further consideration.
The following articles found in Annex A, "LAN Switches Technical Requirements", to Appendix C to the RFSO, are also relevant to this case. They state, in part:
1.16. Quality of Service (M) & (R ) & (I)
1.16.1. (M)
All Classes of LAN switches must support a minimum of two (2) Quality of Service (QoS) features.
1.16.8.
The Class D of LAN switches must support Resource Reservation Protocol (RSVP).
(10 points) (R)
OR
The Class D of LAN switches must offer a proprietary protocol to permit the reservation of resources across an IP network. (5 points) (R)
POSITION OF PARTIES
PWGSC's Position
PWGSC argued that Diversicomm did not provide the mandatory documentation, in this case, technical brochures and documentation (as applicable) to "fully describe the proposed equipment" as required by article B.2ii)d) of the RFSO and that such documentation was required in Annex A to Appendix C to the RFSO. It further submitted that, while the RFSO provided bidders with the discretion to choose the applicable technical brochures or other documentation, such documentation had to "fully describe the proposed equipment". PWGSC asserted that the bidders were not given a choice with respect to providing the documentation or not.
In addition, PWGSC submitted that the supporting documentation was essential to verify the information contained in the mandatory narrative responses to the technical requirements and to confirm compliance of an offer with the mandatory requirements. PWGSC also submitted that the RFSO, in article B.1vii), required the bidders to provide a narrative response for each technical requirement. PWGSC cited other articles of the RFSO that supported this requirement, such as articles C.3iv)a)3) and B.2ii)b), which provide that, with the exception of the technical requirements, where the response for an article of the RFSO is "Comply", no further explanation is required.
PWGSC argued that it was a mandatory requirement to provide both a narrative and supporting documentation with respect to Annex A to Appendix C to the RFSO. According to PWGSC's submission, as Annex A identified and specified technical requirements of the necessary LAN switches, a narrative response was mandatory pursuant to articles B.1vii), B.2ii)b) and C.3iv)a)3) of the RFSO. Moreover, as Annex A pertained to "equipment" (i.e. LAN switches), technical brochures or other documentation that fully describe the proposed equipment were mandatory pursuant to article B.2ii)d). Diversicomm's narrative response did not meet the mandatory requirement to provide supporting documentation that fully describes the proposed LAN switches. As such, PWGSC found Diversicomm's offer to be non-compliant, as it did not meet a mandatory requirement.
With respect to the issue concerning article 1.16.8. of Annex A to Appendix C to the RFSO, PWGSC submitted that this article was also a mandatory requirement. PWGSC asserted that the term "must" in the article, together with article C.3v) of the RFSO, clarified that it was mandatory for bidders to offer Class D of LAN switches that supported one of the two Quality of Service (QoS) protocols identified in article 1.16.8. PWGSC also referred to article A.1i), which advised bidders that the term "must" was to be interpreted as a mandatory requirement. Article A.1i) also stated that "[f]ailure to comply with a mandatory requirement will result in elimination of an offer from further consideration." Moreover, PWGSC submitted that this mandatory requirement was also supported by article C.3v)a)2). PWGSC contended that Diversicomm's proposed Class D of LAN switches supported neither of the protocols identified in article 1.16.8. and, as a result, its offer was declared non-compliant pursuant to article C.3v)b).
In response to Diversicomm's allegation that article 1.16.1. of Annex A to Appendix C to the RFSO eliminated the mandatory requirement of article 1.16.8. because that article uses the expression "a minimum", PWGSC submitted that the expression "a minimum", as used in article 1.16.1., does not mean that the Class D of LAN switches must support only two of the QoS features in article 1.16. In PWGSC's submission, the expression merely signals the least number of features required for all classes of LAN switches. PWGSC added that specifying a minimum number of features for all classes does not eliminate the possibility that the RFSO may require more than the minimum number of features for any one of the classes of LAN switches.
In its response to Diversicomm's comments on the GIR, PWGSC addressed the following three issues: (1) the late filing of documentation available at bid closing; (2) the notification of further grounds of non-compliance; and (3) Diversicomm's entitlement to compensation.
In its comments on the GIR, Diversicomm filed an exhibit prepared by Foundry entitled "Release Notes for the Fastiron 4802" describing the queuing function. PWGSC argued that this document was dated August 9, 2001, and was therefore available prior to the bid closing date of August 20, 2001. Moreover, it was mandatory for bidders to include "technical brochures and documentation (as applicable) to fully describe the proposed equipment" and Diversicomm had the onus of meeting the mandatory requirements.
With respect to PWGSC advising Diversicomm of further grounds of non-compliance, PWGSC argued that this was not discriminatory, as the requirement to evaluate offers thoroughly and strictly includes the right to advise the complainant at any time of any non-conformance with the mandatory requirements of the RFSO. Moreover, PWGSC contended that not advising the complainant of these further points would prejudice the complainant in that it might prepare an offer in response to the re-solicitation, not being aware of further points of non-compliance with the RFSO.
Finally, PWGSC argued that Diversicomm is not entitled to an additional award of compensation for alleged prejudice and injury as none was suffered by Diversicomm.
PWGSC argued that, if Diversicomm's offer is non-compliant with any one of the mandatory requirements of the RFSO, the complaint must be dismissed. PWGSC also requested its complaint costs. However, PWGSC requested the right to re-evaluate all the offers should the Tribunal find in favour of Diversicomm. It also reserved the right to make submissions on the award of costs or compensation.
Diversicomm's Position
Diversicomm submitted that it fulfilled all the documentation requirements in Annex A to Appendix C to the RFSO. It contended that its bid contained two types of documentation that describe the proposed equipment: data sheets and price lists published by Foundry describing the features, performance characteristics and pricing of the switches, and additional documentation in response to specific requirements, transmitted by Foundry and inserted electronically by Diversicomm in its proposal. This documentation was differentiated by being set out in italics in the text of the proposal. Diversicomm argued that the format in which the documentation was submitted is a matter of form rather than substance. The format of the additional documentation (whether in hard copy or electronic copy) was irrelevant to the compliance of the proposal. Moreover, in some cases, it was self-evident that the declaration "Comply" conveyed all the necessary information. Diversicomm provided, as an example, article 1.6.5. of Annex A to Appendix C where it responded "Comply" to the requirement, which in its view was a sufficient response in the context of this limited requirement, and nothing else was required. Foundry also provided a written certification relating to its equipment, which was included in the bid proposal. Diversicomm was informed by PWGSC that its bid was non-compliant since supporting documentation was missing and that it did not comply with article 1.16.8. of the RFSO.
Diversicomm argued that article B.2ii)d) of the RFSO required that the bidder submit "documentation (as applicable) to fully describe the proposed equipment", which left substantial discretion to the bidder to decide what type of documentation was applicable to fully describe the proposed equipment. Diversicomm argued that article B.2ii)d) does not specify the particular types of documentation, such as "technical brochures/specification sheets/engineering white paper/user manuals". The RFSO did not limit bidders with respect to the type of documentation on which they could rely. Diversicomm also submitted that PWGSC had indicated that it expected particular types of documentation that would "validate the information provided". In Diversicomm's submission, this is a methodology and purpose very different from what the RFSO described in article B.2ii)d). Diversicomm argued that its bid was compliant with article B.2ii)d) in that it had provided data and pricing sheets that fully described the equipment offered. Some of the technical specifications relevant to the proposal were not in Foundry's existing data sheets since the latter had not been prepared with the specific requirements of the RFSO in mind. For these reasons, Diversicomm obtained additional information from Foundry to submit as complete a proposal as possible.
Diversicomm argued that PWGSC applied article C.3v)b) of the RFSO so as to require every rated item in the RFSO to be supported and receive a minimum score, which had the effect of converting every rated item into a mandatory one. This is not supported by the terms of the RFSO. In its view, article C.3v)b) should have been read as applying only to those rated items that should have been, or that were, supported. Diversicomm was of the view that, if the RFSO permitted bidders not to support a particular rated item, then article C.3v)b) could not apply to that item. It submitted that PWGSC had misapplied articles 1.16.8. and C.3v)b) in finding Diversicomm's bid non-compliant.
With respect to the mandatory nature of article 1.16.8. of Annex A to Appendix C to the RFSO requiring QoS features, Diversicomm contended that PWGSC failed to read the RFSO as a whole and that article C.3v)b) could not be read in isolation from the other provisions of the RFSO. Diversicomm examined article 1.16., which provides for mandatory and rated requirements. It argued that article 1.16.8. is identified in the RFSO only as a rated requirement and is therefore a desirable feature, not a mandatory requirement. In its view, had it been mandatory, it would have been designated so. As its proposal supported more than the two minimum QoS features required by article 1.16.8., Diversicomm argued that it was compliant.
In addition, Diversicomm argued that its bid accumulated more than the minimum 790 points required by article C.3v)b) of the RFSO and met all the mandatory requirements for the QoS features in article 1.16. In concluding, Diversicommm submitted that it should be awarded the contract, as it is the only compliant bidder.
Diversicomm concluded by stating that PWGSC had erred in ruling its bid non-compliant and had failed to apply the evaluation methodology set out in the RFSO.
In response to the GIR, which stated that its bid was non-compliant because it failed to meet the requirement to include a narrative, Diversicomm argued that there seemed to be no reason, either in logic or under the RFSO, why supporting documentation could not, in appropriate cases, meet the need for a narrative, or be seen as rendering narrative explanation unnecessary and superfluous.
In further response to the GIR, Diversicomm submitted that PWGSC had introduced material relating to events that had occurred after Diversicomm submitted its complaint, that the events did not relate to the grounds of non-compliance, that they were new grounds of non-compliance and that the GIR did not fully disclose the circumstances surrounding the subsequent events.
Diversicomm alleged that PWGSC had not made a determination that its bid was non-compliant on the so-called new grounds and had refused to advise Diversicomm as to whether it intended to disqualify Diversicomm's bid on the basis of the alleged new grounds. Diversicomm submitted that PWGSC's actions after the filing of the complaint demonstrate clear bias against Diversicomm in that there was a determined effort on PWGSC's part to examine Diversicomm's proposal and to search for any possible additional grounds on which it could disqualify Diversicomm. In Diversicomm's view, it is inappropriate for PWGSC to attempt to introduce these inconclusive, subsequent dealings into the record of the complaint.
With respect to the accuracy of the technical information contained in Diversicomm's proposal, Diversicomm submitted that it provided the most accurate and current information. It also submitted that it is common practice in the industry to issue Release Notes that, as in this case, clearly describe the queuing options. Diversicomm provided a copy of the Release Notes with its response to the GIR. It argued that, as technology advances very rapidly, brochures are only updated from time to time in order to keep costs down. Therefore, Diversicomm provided a narrative written by a Foundry engineer, as it was the best way to provide accurate and current technical information in the bid response. Diversicomm concluded by stating that it had provided supporting documentation.
With respect to article 1.16.8. of Annex A to Appendix C to the RFSO, Diversicomm reiterated the position that it took in its complaint. It also requested that, in recognition of the prejudice and injury that it suffered during this process, it be awarded additional compensation.
In its December 27, 2001, response to PWGSC's reply of December 19, 2001, Diversicomm submitted that PWGSC mischaracterized Diversicomm's position. It reiterated that there was no better or more current documentation available than that provided by Foundry's engineer (and inserted electronically in Diversicomm's proposal), which was specifically tailored to the technical requirements of the RFSO. In Diversicomm's submission, both types of documentation included in its proposal, i.e. the data sheets and the text inserted electronically in the text of the proposal, were actual documentation. As to the Release Notes attached to Diversicomm's reply, these notes are the property of Foundry and were not in Diversicomm's possession at the time of the bidding. In any event, the Release Notes are irrelevant, as the technical information prepared by Foundry and provided to Diversicomm for the bid proposal and the technical information contained in the Release Notes are the same. Diversicomm argued that it submitted the best possible documentation that would present its bid in the best light and that the Tribunal's inquiry has to be based on whether Diversicomm submitted technical brochures and documentation (as applicable), which met the requirement, and not on what it could have submitted. With respect to the so-called "additional grounds" of non-compliance, Diversicomm submitted that PWGSC's approach had been nothing short of contradictory, confusing and non-committal, and that it believed that the whole issue had been raised simply to try to discredit Diversicomm.
TRIBUNAL'S DECISION
Section 30.14 of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations 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 provides, in part, that the Tribunal is required to determine whether the procurement was conducted in accordance with the relevant trade agreements.
Article 506(6) of the AIT provides, in part: "The tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria." Articles 1015(4)(d) of NAFTA and Article XIII (4)(c) of the AGP provide the following: "awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation". In this case, the Tribunal must decide whether PWGSC improperly applied the evaluation criteria in evaluating Diversicomm's proposal.
The Tribunal has given careful consideration to the terms of the RFSO and to the parties' extensive submissions. Based on a full reading of article B.1vii) of the RFSO, which specifies that "[r]esponses to technical requirements must include a narrative which substantiates the response" and the definition of the term "comply", as set out in article B.2ii)b), the Tribunal is of the view that the provision of a narrative is a mandatory requirement. This is supported by article A.1i), which specifically states that words such as "must" in the RFSO "are to be interpreted as mandatory requirements" and that "[f]ailure to comply with a mandatory requirement will result in elimination of an offer for further consideration." In addition, the Tribunal finds that the narrative is required to substantiate a response to each technical requirement contained in Annex A to Appendix C to the RFSO. The Tribunal also finds that article B.1vii) clearly distinguishes the term "narrative" from "other documentation which is included with the offer". This is further evidenced by the example of the required response format provided in the same article and reproduced above.
In the Tribunal's view, the term "other documentation" as used in article B.1vii) of the RFSO includes the terms "technical brochures" and "documentation" found in article B.2ii)d). By simply responding "Comply" to such items as, for example, article 1.6.5. of Annex A to Appendix C to the RFSO, the Tribunal is of the view that, contrary to paragraph 29 of the complaint, Diversicomm has not met the terms of the RFSO. In particular, the Tribunal finds that article B.1vii), which requires a narrative relating to responses to technical requirements such as those found in Annex A to Appendix C, and which covers the technical requirements for LAN switches, required further explanation in the form of a narrative. Other examples of non-compliance found in Diversicomm's proposal in this regard include articles 1.6.2. 10 and 1.20.3. 11 of Annex A to Appendix C. In light of the above, the Tribunal concludes that Diversicomm failed to meet the mandatory requirement to include a narrative relating to the responses to the technical requirements of Annex A to Appendix C pursuant to article B.1.vii). Although, in this regard, it is not necessary for the Tribunal to determine whether the bidders had a choice to provide technical brochures or other documentation under article B.2ii)d) of the RFSO, the Tribunal is of the view that article B.2ii), in its entirety, was mandatory pursuant to the terms of article A.1i). Therefore, the Tribunal finds that the words "as applicable", in article B.2ii)d), only provided discretion in determining whether the documents were to be technical brochures or some other documentation.
With respect to the issue of whether article 1.16.8. of Annex A to Appendix C to the RFSO is a mandatory requirement, the Tribunal is of the view that this article, although a rated element, is also mandatory. Article C.3v)b) states that any offer that does not obtain a minimum score of 5 points for each rated item will be considered non-compliant. Article 1.16.8. stipulates that "[t]he Class D of LAN switches must support Resource Reservation Protocol (RSVP)." Diversicomm indicated that its Class D of LAN switches did not support either of the protocols identified in article 1.16.8. The Tribunal notes that article A.1ii) clearly provides for rated elements to be identified as mandatory. As stated earlier, article A.1i) also indicates that the word "must" in the RFSO is to be interpreted as indicating a mandatory requirement. Therefore, by virtue of articles A.1 and C.3v)b), the Tribunal is of the view that Diversicomm has not met the mandatory requirements of article 1.16.8. Moreover, the Tribunal is not persuaded by Diversicomm's arguments that Class D switches need only support a minimum of two QoS features.
Finally, the Tribunal is not convinced that PWGSC has exhibited bias or has caused any prejudice to Diversicomm in this matter.
Consequently, the Tribunal will not award Diversicomm its costs incurred in preparing the solicitation or in relation to these proceedings. The Tribunal has also decided that the circumstances of this case do not warrant costs against Diversicomm. Therefore, submissions on this matter are not necessary.
DETERMINATION OF THE TRIBUNAL
In light of the foregoing, the Tribunal determines that, pursuant to subsection 30.14(2) of the CITT Act, 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 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.intrasec.mb.ca/eng/it.htm> [hereinafter AIT].
4 . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [hereinafter AGP].
5 . S.O.R./93-602 [hereinafter Regulations].
6 . S.O.R./91-499.
7 . Canada's Electronic Tendering Service.
8 . PWGSC submitted that it is a mandatory requirement of article 1.16.8. for the Class D of LAN switches to support Resource Reservation Protocol (RSVP) or to have a proprietary protocol that permits the reservation of resources across an Internet Protocol network.
9 . Article 1.6.7. was deleted and replaced by a modification to the RFSO, dated August 8, 2001.
10 . Physical Properties.
11 . Simple Network Management Protocol.
[Table of Contents]
Initial publication: January 25, 2002
