Procurement

Determinations

DIGIDYNE INC.
File No. PR-2006-021

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BY FACSIMILE

August 14, 2006

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The Canadian International Trade Tribunal (the Tribunal) (Panel: Meriel V.M. Bradford, Presiding Member; Pierre Gosselin, Member; Ellen Fry, Member) has reviewed the complaint submitted on August 8, 2006, on behalf of DigiDyne Inc. (DigiDyne), and has decided not to conduct an inquiry into this complaint.

According to subsection 6(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (the Regulations), 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.” Subsection 6(2) of the Regulations specifies that a potential supplier who 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.”

Digidyne’s complaint alleges that Public Works and Government Services Canada (PWGSC), through its inclusion of the requirement for bidders to obtain Original Equipment Manufacturer (OEM) certification, unfairly denied it the opportunity to bid on the requirement. According to the complaint, the Request for Proposal (RFP) containing the alleged unfair requirement was issued on June 8, 2006. On June 16, 2006, DigiDyne wrote to PWGSC and requested that a number of clauses in the RFP be either deleted or modified. On July 12, 2006, PWGSC issued Amendment no. 3 to the RFP, in which it responded to each of DigiDyne’s requests, notably in Answers 2 through 11, and advised all bidders that the RFP would not be amended with respect to the certification requirements.

The Tribunal considers that DigiDyne knew of the basis of its complaint when the RFP was issued on June 8, 2006. DigiDyne then objected to PWGSC on June 16, 2006, within the 10 workings days stipulated by subsection 6(2) of the Regulations. The Tribunal notes that Amendment no. 3 to the RFP responded to each of DigiDyne’s concerns in the negative. Specifically, regarding DigiDyne’s concern that only a single entity would be able to meet the OEM certification requirements, question and answer number 2 of the Amendment stated that PWGSC was “satisfied that more than one company will be able to respond to this requirement”. The Tribunal believes that DigiDyne knew of its “denial of relief” on July 12, 2006, the day Amendment no. 3 was issued.

In order for the complaint to be filed with the Tribunal in accordance with the provisions of subsection 6(2) of the Regulations, DigiDyne would have had to have filed its complaint within 10 working days of receiving that denial of relief, or by July 26, 2006. As DigiDyne’s properly documented complaint, dated August 4, 2006, was not received at the Tribunal until August 8, 2006, it was filed outside the allowable timeframe and, as such, cannot be considered by the Tribunal.

In light of the above, the Tribunal will not conduct an inquiry into this complaint and considers the matter closed.

Yours sincerely,

Susanne Grimes
Acting Secretary