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Procurement
Determinations
AVERNA TECHNOLOGIES INC.
v.
DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES
File No. PR-2005-035
Determination issued
Monday, February 13, 2006
Reasons issued
Friday, March 10, 2006
TABLE OF CONTENTS
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IN THE MATTER OF a complaint filed by Averna Technologies 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.
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BETWEEN |
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AVERNA TECHNOLOGIES INC. |
Complainant |
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AND |
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THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES |
Government Institution |
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 valid.
Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal recommends, as a remedy, that the Department of Public Works and Government Services cancel the contract awarded to Néosoft Technologies Inc. and award the contract to the only qualified bidder, Averna Technologies Inc., if it accepts it, as soon as possible, in order to meet the delivery deadlines.
In the alternative, the Canadian International Trade Tribunal recommends that Averna Technologies Inc. be compensated by an amount that recognizes the profit that it could have made if it had been awarded the contract. If the Department of Public Works and Government Services elects to compensate Averna Technologies Inc. and the parties are unable to agree on an amount to be paid within 30 days of notifying the Canadian International Trade Tribunal in accordance with section 13 of the Canadian International Trade Tribunal Regulations of its intention to do so, the parties may apply to the Canadian International Trade Tribunal for a determination of the amount of compensation.
Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Averna Technologies Inc. its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by the Department of Public Works and Government Services. The Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 2, and its preliminary indication of the amount of the cost award is $2,400. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Canadian International Trade Tribunal, as contemplated by the Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of the award.
Pierre Gosselin
Pierre Gosselin
Presiding Member
Hélène Nadeau
Hélène Nadeau
Secretary
The statement of reasons will be issued at a later date.
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Tribunal Member: |
Pierre Gosselin, Presiding Member |
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Research Director: |
Marie-France Dagenais |
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Senior Investigation Officer: |
Michael W. Morden |
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Counsel for the Tribunal: |
Philippe Cellard |
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Complainant: |
Averna Technologies Inc. |
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Counsel for the Complainant: |
Paul Lalonde |
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Intervener: |
Néosoft Technologies inc. |
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Government Institution: |
Department of Public Works and Government Services |
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Counsel for the Government Institution: |
Susan D. Clarke |
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Christianne M. Laizner |
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Bernard Letarte |
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Ian McLeod |
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Dah Yoon Min |
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: secretary@citt-tcce.gc.ca
STATEMENT OF REASONS
COMPLAINT
1. On November 14, 2005, Averna Technologies Inc. (Averna) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11 (1) of the Canadian International Trade Tribunal Act. 1 The complaint concerned the procurement (Solicitation No. W7701-052344/A) by the Department of Public Works and Government Services (PWGSC), on behalf of the Department of National Defence, for updating the acquisition and control systems at the experimental complex at Defence Research and Development Canada (DRDC)—Valcartier.
2. Averna alleged that the contract had been awarded to a company that was in conflict of interest with the contracting authority because the successful bidder had been involved in drafting the Request for Proposal (RFP), thereby violating the RFP’s conflict of interest provisions. It also alleged that the technical evaluation criteria had been discriminatorily applied and that Néosoft Technologies Inc. (Néosoft) had an advantage because it had prepared the study preceding the existing contract, even though the study proved to be incomplete.
3. As a remedy, Averna requested that the contract awarded to Néosoft be cancelled, that Néosoft’s proposal be withdrawn and that the contract be awarded to the best remaining bidder as soon as possible, in order to meet DRDC—Valcartier’s delivery deadlines. In the alternative, Averna requested that it be compensated for lost profit, specifically 40 percent of its bid amount, or that the contract awarded to Néosoft be cancelled and the RFP reissued. It also requested its costs associated with this complaint according to Level 2 of the Tribunal’s Guideline for Fixing Costs in Procurement Complaint Proceedings (Guideline).
4. On November 21, 2005, the Tribunal informed the parties that the complaint had been accepted, as it met the requirements of subsection 30.13(1) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations. 2 On December 5, 2005, the Tribunal granted intervener status to Néosoft. On December 15, 2005, PWGSC filed a Government Institution Report (GIR). On December 29, 2005, Averna submitted its comments on the GIR. On January 11, 2006, PWGSC filed further submissions on Averna’s comments on the GIR. On January 23, 2006, Averna submitted its comments on PWGSC’s submissions. On the same day, Néosoft filed its submissions on Averna’s comments on the GIR and PWGSC’s further submissions. On January 30, 2006, Averna submitted its comments on Néosoft’s submissions.
5. 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, pursuant to paragraph 25(c) of the Canadian International Trade Tribunal Rules, 3 disposed of the complaint on the basis of the written information on the record.
PROCUREMENT PROCESS
6. The RFP was published on MERX 4 on August 12, 2005, with a bid closing date of September 12, 2005, which was subsequently extended to September 19, 2005.
7. According to the RFP, DRDC—Valcartier was asking that a company modernize and standardize the acquisition and control processes for certain experimentation systems by migrating the 27 experimentation systems at the DRDC—Valcartier experimental complex to the latest version of the National Instruments LabVIEW software in order to integrate the virtual instrumentation technology into those systems. The project was scheduled to take place in three stages over three fiscal years, namely from 2005 to 2008.
8. According to PWGSC, five companies submitted proposals, two of which, Averna and Néosoft, were found to be compliant. According to PWGSC, the contract was awarded to Néosoft on October 25, 2005, for a total value of $569,952. On October 28, 2005, Averna contacted PWGSC to express its dissatisfaction with the outcome. PWGSC subsequently contacted Néosoft to order it to suspend the work begun. On November 2, 2005, PWGSC informed Néosoft and Averna, in writing, that the stop work order had been lifted and that Néosoft could proceed with the contract.
9. Averna filed its complaint with the Tribunal on November 14, 2005.
POSITION OF THE PARTIES
Averna’s Position
10. Averna submitted that the technical evaluation committee had improperly evaluated its own proposal and Néosoft’s proposal. It added that Néosoft could not have been considered as a potential supplier unless the DRDC—Valcartier evaluation committee had discriminatorily applied the evaluation criteria or unless Néosoft had misrepresented itself. Averna argued that Néosoft was a company located in Val-Bélair, close to DRDC—Valcartier, had only one employee, namely its president Mr. Martin St-Laurent, and that he had no relevant experience in data acquisition.
11. Averna also submitted that it had doubts as to the evaluation committee’s impartiality because Mr. St-Laurent was a former work colleague of one of the committee members. It maintained that, in May 2005, one of the evaluation committee members had strongly encouraged Averna to set up a partnership with Néosoft when it had clearly sent the message that such a partnership would be “a definite advantage for winning the mandate of setting up the acquisition systems” [translation]. Averna also submitted that one or more PWGSC representatives had indicated the following:
• The study’s successful bidder risked not being able to respond to the subsequent RFP.
• The applicability of the conflict of interest clause had been examined, but DRDC—Valcartier representatives had convinced PWGSC to grant Néosoft a right of exemption from this clause.
• The conflict of interest clause should not have been part of the solicitation and had been included by mistake.
Averna submitted that preference had been given to Néosoft by DRDC—Valcartier officers involved in the process before DRDC—Valcartier even had the opportunity to finalize its plans and RFP, confirm its budget and review the various bids.
12. Averna submitted that Néosoft was the author of the study used as a technical reference in preparing the RFP pursuant to which it had been selected as the successful bidder; Averna noted that the RFP indicated (conflict of interest clause 5 ) that any contractor in any manner directly or indirectly involved in the preparation of the RFP would be deemed to be in conflict of interest. The clause reads as follows:
Canada may have engaged the assistance of private sector contractors in the preparation of this solicitation. Responses to this solicitation from any such contractor or with respect to which any such Bidder or any of its subcontractors, employees, agents or representatives are in any manner directly or indirectly involved will be deemed to be in conflict of interest (real or perceived) and will not be considered. The Bidder represents and certifies that it has not received, nor requested, any information or advice from any such contractor or from any other company or individual in any way involved in the preparation of this solicitation or in the definition of the technical requirement. The Bidder further warrants and certifies that there is no conflict of interest as stated above.
13. Averna submitted that Néosoft’s proposal should not have been considered because that company had been involved in drafting the RFP. It noted that Néosoft was the author of a study associated with the RFP, knew about the products covered in the RFP and had provided estimates of the time required (in business days) for delivering the requested services and should therefore have been declared in conflict of interest. Averna submitted that the PWGSC procurement officer had informed Averna on October 28, 2005, that she had received an exception request from DRDC—Valcartier in respect of this clause and that she had granted Néosoft the right to bid because, as DRDC—Valcartier had convinced her, “there was no conflict of interest in this case” [translation].
14. Averna submitted that the conflict of interest clause was unqualified and written in very broad terms. It provided that anyone in any manner directly or indirectly involved in drafting the RFP or defining the technical requirement would be deemed to be in conflict of interest. According to Averna, there is no doubt that to include the study in the RFP technical requirement constitutes involvement in defining the RFP technical requirements.
15. Averna submitted that the study prepared by Néosoft had not been completed and described only in very broad terms some of the systems to be provided, giving the study’s author a clear advantage with respect to its direct and sole access to the information needed for estimating the design costs of the systems to be delivered. According to Averna, the author itself acknowledged not having enough time to complete the study. Averna also submitted that Néosoft definitely had a competitive advantage due to its preparing the study, namely:
• Néosoft was able to estimate the actual effort required because it had access to privileged information, such as the source code of the current systems;
• in its study, Néosoft provided superficial information concerning the requirements of the systems to be replaced, giving it an advantage over the other bidders; and
• the many hours that Néosoft had worked on the study gave it access to the site and users of the current systems.
Averna submitted that lack of access to this undocumented information reduces the accuracy of competing bidders’ cost and risk assessments and that, without redoing the study in question themselves, they must proceed with rough estimates, thereby reducing their ability to reduce their costs and their proposed price. For example, Averna noted that, in the study, Néosoft had provided estimates of the time that it felt was required for implementing the LabVIEW software application. Using these time estimates and the RFP’s maximum budget envelope, the study suggests an hourly rate below $50, which is 25 to 40 percent below the industry’s current market pricing. Averna submitted that the effort suggested in the study was decidedly greater than that used by Néosoft in calculating the price provided in the winning bid.
PWGSC’s Position
16. PWGSC submitted that the bids had been evaluated based on a cost-per-point rating system with the required impartiality, using a stringent method whereby members of the evaluation committee allocate points unanimously. It submitted that the level of detail and accuracy that the committee had put into evaluating the proposals and the fact that Averna had been ranked higher from a technical perspective did not support Averna’s allegation of bias. In addition, PWGSC, not the evaluation committee, did the final calculation for determining the winning bid.
17. As to the allegation that Néosoft had only one employee, PWGSC indicated that, according to Néosoft’s proposal, 6 a five-person team for undertaking the implementation project described in the RFP was proposed. The proposal also mentions the experience that its members had acquired through several projects in which they had been involved. PWGSC added that Néosoft’s experience and qualifications had been evaluated based on information in its proposal, which contained descriptions of projects carried out using the LabVIEW software, as well as information on Néosoft’s Web site.
18. Regarding the allegation that Mr. Sébastien Turgeon, a member of the technical evaluation committee, had recommended that Averna set up a partnership with Néosoft because it would be a definite advantage for obtaining the contract, PWGSC stated that “Mr. Turgeon made no such remarks” [translation]. It submitted the following: “In May 2005, Mr. Turgeon did in fact meet with Mr. Karym Lahjioui from Averna, at Averna’s request, because it wished to make itself known to DRDC Valcartier. That exploratory meeting was about the report derived from the study and DRDC Valcartier’s requirements” [translation]. PWGSC acknowledged that the possibility of awarding the contract to two different companies had been discussed at that meeting but that, at that time, project funding was uncertain and the terms of a potential implementation project had not yet been determined. In the GIR, PWGSC provided the e-mail exchange 7 between Mr. Turgeon and Mr. Lahjioui demonstrating that Mr. Turgeon had never recommended a partnership with Néosoft.
19. With respect to the allegation that the evaluation committee was not impartial because one of its members, Mr. Turgeon, had worked on a project with Mr. St-Laurent in the past, PWGSC submitted that, the fact that Mr. St-Laurent had, more than three years ago, worked on a project that had also involved Mr. Turgeon did not create a reasonable apprehension of bias regarding the evaluation committee. It also submitted that, after the project ended in 2002, Mr. Turgeon and Mr. St-Laurent did not maintain any contact with each other.
20. PWGSC submitted that the conflict of interest clause did not apply in this case because Néosoft had not been involved in drafting the RFP. It acknowledged that the statement of work entitled “Technical Specification No. 52344” referred to the report prepared by Néosoft in the first phase of the project, but submitted that the statement of work in Annex A of the RFP had been prepared by DRDC—Valcartier, not Néosoft. According to PWGSC, no private contractors had been specifically involved in drafting or preparing the RFP. PWGSC also submitted that the purpose of the contract was to obtain a report following a study assessing the magnitude of the job of modernizing the systems and establishing common development standards and specifications for updating the current acquisition and control processes; PWGSC submitted that, at the time that the solicitation for that report was issued, it was unsure whether the resulting report would be annexed to the subsequent RFP.
21. PWGSC submitted that Néosoft did not have any advantage because it had prepared the report derived from the study prior to the implementation phase. According to PWGSC, the information that Néosoft generated during its first contract appeared in the report that it had produced, and the report had been sent to all bidders that had participated in the procurement process. PWGSC argued that, if the Tribunal found that Néosoft had an advantage because it had prepared the prior study, that advantage would not be any greater than that of a former bidder or supplier regarding a new solicitation issued for the same product.
22. PWGSC submitted that the ground of complaint regarding the incompleteness or erroneousness of the study was late. It submitted that Averna could not complain about the incompleteness of Néosoft’s report because the report had been published on MERX, along with the RFP, on August 12, 2005, and that Averna could have read it at that time. Thus, Averna’s criticisms had been expressed late.
Néosoft’s Position
23. Néosoft submitted that it did not have information that was not known to the other bidders, did not have an unfair advantage and was not in conflict of interest.
24. Néosoft stated that in no way had it been involved in preparing the RFP or in defining the technical requirements. It submitted that DRDC—Valcartier had already made the major software and hardware choices, based on industry standards. To Néosoft’s knowledge, Averna is the only Quebec company that is a member of the National Instruments 8 alliance; therefore, it is ridiculous to claim that Néosoft had an advantage.
25. Néosoft submitted that Averna’s allegations regarding the approximate $35 hourly rate and according to which its proposal had overstated the number of weeks required were completely false. It submitted that its hourly rate was normally set at between $35 and $45, that it had met the estimated number of weeks in the report and that it had proposed a team of four full-time people.
26. According to Néosoft, if Averna felt that the report did not contain all the information needed for preparing its proposal, it could have submitted a request for information.
TRIBUNAL’S ANALYSIS
27. Pursuant to subsection 30.14(1) of the CITT Act, the Tribunal, in conducting an inquiry, shall limit its considerations to the subject matter of the complaint. Moreover, at the conclusion of an inquiry, the Tribunal shall 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 or are being observed. Section 11 of the Regulations further provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which in this case are the Agreement on Internal Trade, 9 the North American Free Trade Agreement 10 and the Agreement on Government Procurement. 11
28. PWGSC submitted that NAFTA and the AGP do not apply to research and development procurement. It is true that the systems that are the subject of the services to be delivered are indeed used to perform research and development work. However, the required services involve updating or improving the systems. In the Tribunal’s view, these services are not research and development services. 12 NAFTA and the AGP are therefore applicable.
29. Article 506(6) of the AIT provides the following: “In evaluating tenders, a Party may take into account not only the submitted price but also quality, quantity, delivery, servicing, the capacity of the supplier to meet the requirements of the procurement and any other criteria directly related to the procurement that are consistent with Article 504. 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.”
30. Similarly, Article 1015(4)(d) of NAFTA provides that “awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation [...]”.
31. Moreover, Article XIII (4)(c) of the AGP provides the following: “Awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation.”
32. In the RFP, Annex D—Certification Requirements contains the following clause:
Canada may have engaged the assistance of private sector contractors in the preparation of this solicitation. Responses to this solicitation from any such contractor or with respect to which any such Bidder or any of its subcontractors, employees, agents or representatives are in any manner directly or indirectly involved will be deemed to be in conflict of interest (real or perceived) and will not be considered. The Bidder represents and certifies that it has not received, nor requested, any information or advice from any such contractor or from any other company or individual in any way involved in the preparation of this solicitation or in the definition of the technical requirement. The Bidder further warrants and certifies that there is no conflict of interest as stated above.
33. Averna submitted that having in any manner “directly or indirectly” been involved in drafting the RFP or defining the technical requirements should disqualify Néosoft and that, because the conflict of interest clause applies to Néosoft, its proposal should not have been considered.
34. PWGSC and Néosoft submitted that the conflict of interest clause did not apply in this case because Néosoft had not been involved in drafting the RFP.
35. The Tribunal notes that Annex A to the RFP entitled “Statement of Work” included technical specification No. 52344, which specifically dealt with the project referred to in the RFP, namely “Updating acquisition and control systems at the experimental complex – implementation following the study”. The Tribunal also notes that the objectives of the work to be completed are described as follows in the technical specification: “a contract for the implementation phase which follows a previous review and analysis phase to upgrade the energetic materials experimental facilities, following the technical specifications and recommendations in the report derived from the study” [emphasis added]. Finally, the Tribunal notes that the “Statement and Plan of Work” section in the technical specification states the following: “In sum, the objective is to implement the study’s recommendations . . . .” This section also indicates that the report derived from the study is attached.
36. The clause in question in this case provides that a contractor whose assistance Canada has engaged in the preparation of the RFP will be deemed to be in conflict of interest if it files a proposal. The clause also states that proposals submitted by such contractors will not be considered.
37. According to the Tribunal, after reviewing the RFP documents, there is no doubt that the report prepared by Néosoft was absolutely necessary to the preparation of a proposal in response to the RFP. The Tribunal is of the view that, without the report, a bidder would not have known the nature of the work required or the technical specifications to follow.
38. Thus, in the Tribunal’s opinion, Néosoft’s report was essential to the RFP. This means that Canada did indeed engage the assistance of Néosoft for preparing the RFP. Néosoft should therefore have been deemed to be in conflict of interest and its proposal should not have been considered.
39. In light of its finding regarding this particular ground of complaint from Averna, the Tribunal deems unnecessary to rule on Averna’s other grounds of complaint.
40. The Tribunal therefore finds that, in accepting Néosoft’s proposal, PWGSC breached Article 506(6) of the AIT, Article 1015(4)(d) of NAFTA and Article XIII(4)(c) of the AGP.
41. For this reason, Averna’s complaint is valid.
42. In formulating its recommendations, the Tribunal must, pursuant to subsection 30.15(3) of the CITT Act, consider all the circumstances relevant to the procurement to which the RFP relates, particularly the following:
• the seriousness of any deficiency in the procurement process;
• the degree to which the complainant and all other interested parties were prejudiced;
• the degree to which the integrity and the efficiency of the competitive procurement system were prejudiced;
• whether the parties acted in good faith; and
• the extent to which the contract was performed.
43. In the Tribunal’s opinion, awarding a contract to Néosoft, whose proposal should not have been considered, is a serious deficiency. The degree to which Averna was prejudiced is great because it should have been awarded the contract. By making these decisions, PWGSC also prejudiced the integrity and the efficiency of the competitive procurement system, one of the key principles of which is that government contracts are to be awarded in accordance with the conditions set out in the RFPs. In light of these considerations, the Tribunal recommends that, as a remedy, PWGSC cancel the contract awarded to Néosoft and award the contract to the only qualified bidder, Averna, if it accepts it, as soon as possible, in order to meet the established delivery deadlines.
44. Given the extent to which the contract has been performed, the Tribunal recommends, in the alternative, that Averna be compensated by an amount that recognizes the profit that it could have made if it had been awarded the contract. If PWGSC elects to compensate Averna and the parties are unable to agree on the amount to be paid within 30 days after PWGSC advises the Tribunal of its intention, pursuant to section 13 of the Regulations, the parties may request that the Tribunal establish the amount of the cost award.
45. The Tribunal also awards Averna its reasonable costs incurred in preparing and proceeding with its complaint. The Tribunal considered its Guideline and is of the view that this complaint case has a complexity level corresponding to the middle level of complexity referred to in Appendix A to the Guideline, specifically Level 2.
46. The Guideline contemplates classification of the level of complexity of complaint cases based on the following three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the proceedings. The complexity of the procurement was medium, as it involved a defined service project requiring relatively scarce knowledge. The complexity of the complaint was medium, since it involved several grounds. Finally, the complexity of the proceedings was medium, given that there was an intervener, numerous submissions from the parties and a public hearing was not required. Accordingly, as contemplated by the Guideline, the Tribunal’s preliminary indication of the cost award is $2,400.
DETERMINATION OF THE TRIBUNAL
47. Pursuant to subsection 30.14 (2) of the CITT Act, the Tribunal determines that the complaint is valid.
48. Pursuant to subsections 30.15 (2) and (3) of the CITT Act, the Tribunal recommends, as a remedy, that PWGSC cancel the contract awarded to Néosoft and award the contract to the only qualified bidder, Averna, if it accepts it, as soon as possible, in order to meet the delivery deadlines.
49. In the alternative, the Tribunal recommends that Averna be compensated by an amount that recognizes the profit that it could have made if it had been awarded the contract. If PWGSC elects to compensate Averna and the parties are unable to agree on an amount to be paid within 30 days of notifying the Tribunal in accordance with section 13 of the Regulations of its intention to do so, the parties may apply to the Tribunal for a determination of the amount of compensation.
50. Pursuant to section 30.16 of the CITT Act, the Tribunal awards Averna its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by PWGSC. The Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 2, and its preliminary indication of the amount of the cost award is $2,400. If any party disagrees with the preliminary indication of the level of the complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated by the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the award.
1 . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].
2 . S.O.R./93-602 [Regulations].
3 . S.O.R./91-499.
4 . Canada’s electronic tendering service.
5 . RFP, Annex D—Certification Requirements.
6 . GIR, Annex H at pp. 36 et seq.
7 . GIR, Annex I.
8 . The manufacturer of the software in question, LabVIEW.
9 . 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat <http://www.intrasec.mb.ca/index_en/ait.htm> [AIT].
10 . North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994) [NAFTA].
11 . 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm> [AGP].
12 . Appendix 1001.1b-2-B of NAFTA defines procurement of research and development services as including the acquisition of specialized expertise for the purposes of increasing knowledge in science; applying increased scientific knowledge or exploiting the potential of scientific discoveries and improvements in technology to advance the state of art; and systematically using increases in scientific knowledge and advances in state of art to design, develop, test, or evaluate new products or services.
