February 8, 2022
Mr. Michel Granger
The Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
Ottawa ON K1A 0G7
Dear Mr. Granger:
P&L Commmunications Inc. ("PLCom") submits that the above-noted procurement violates the procurement provisions of NAFTA and the Agreement on Internal Trade (AIT).
PLCom therefore requests that the Tribunal review the procurement by Public Works and Government Services Canada ("PWGSC") in the captioned solicitation and grant the relief requested in this complaint (as may be subsequently supplemented in accordance with the instructions of the Tribunal).
The Complainant, P&L Communications, and known as PLCom, is based at 134 Sparks Street, Ontario, and has been supplying a broad variety of media monitoring products to the Federal Government for more than six years. Its address is as follows:
134 Sparks Street
Ottawa, Ontario, K1J 5B6
Attention: Richard Lamothe, President
Telephone: 613 231 5597
Fax: 613 230 1258
Email: [email protected]
The purchase was carried out on behalf of Agriculture Canada (Canadian Food Inspection Agency (CFIA) ) by Public Works and Government Services Canada. These institutions are subject to the procurement provisions of NAFTA and the Agreement on Internal Trade.
The subject contract relates to media monitoring systems, i.e. goods that are not excluded from coverage by the relevant trade agreements. The contract is valued by PWGSC at $59,556.20.
PLCom has attached the following relevant documents in support of its complaint:
PLCom submits that PWGSC violated provisions of the NAFTA and the AIT in its handling of the process related to the subject ACAN issued in respect to Solicitation No. 39014-010701/A (copy attached) to procure an electronic media monitoring sytem for Agriculture Canada (Canadian Food Inspection Agency (CFIA)). PLCom has been, throughout this process, treated unfairly and highhandedly by PWGSC and the Canadian Food Inspection Agency (CFIA). PLCom submitted a legitimate letter of challenge and a statement of its own capabilities in response to the ACAN, accompanied by more than adequate documentation and evidence to prove that it was capable of supplying an electronic media monitoring system. Upon taking notice of the ACAN, PLCom requested that a competitive procurement process be held and that it be given an opportunity to submit a proposal to meet the requirements of the CFIA. PLCom's challenge to the ACAN was summarily dismissed by PWGSC, without valid basis, in a manner that precluded competition.
As appears from the attached documentation, on or about Friday December 29, 2000, PWGSC published an ACAN on MERX with respect to the award of a contract for an electronic media monitoring system to Densan Consultants Limited, of 880 Wellington St., Ottawa On. The closing date to challenge the ACAN was January 15, 2001, which given the New Year's holiday permitted just 11 business days for PLCOM to submit its written response. On January 12, 2001, Mr. Richard Lamothe, President of PLCom, telephoned PWGSC contracting officer Ms. Arti Bhal advising her that PLCom would be submitting a written statement of capabilities and would be requesting a competitive procurement. On Monday, January 15, 2022 PLCom submitted its written response to the ACAN (copy attached). In its written submission PLCom provided a username and password to permit PWGSC officials access to its media monitoring system, known commercially in the Ottawa media monitoring industry as INFOLYNX.
On Friday January 26, 2001, PWGSC responded via fax to PLCom's January 15th letter, but mistakenly referred to a technical review by Industry Canada. PWGSC corrected this mistake by sending a second fax on Monday January 29, 2022 (note that this fax is dated January 25 but it was not faxed to PLCom until January 29) saying that the CFIA was the client department, not Industry Canada. This latter fax stated that PLCom's product did not meet the mandatory requirements of the ACAN and therefore the challenge was dismissed.
The assertion that PLCom's software did not meet "the mandatory requirements" is without foundation and cannot reasonably support the dismissal of PLCom's challenge.
According to PWGSC, PLCom's software was judged to be incompatible with the software being used by CFIA and because CFIA needed a system that " will run in house, under Windows NT, using Microsoft Information Server (IIS) and using Active Server Page Scripting (ASP)". PWGSC's letter further alleges that PLCom's Infolynx system was "hosted" by PLCom , implying that the Infolynx system software could not be installed in-house on a server at the CFIA. The letter alleged that the Infolynx system was a "Linux application", implying that the application was incompatible with Microsoft NT.
All of these allegations are misleading and incorrect, and even if true, cannot justify disqualifying PLCom since none of the so-called "mandatory requirements" referred to by PWGSC were included in the ACAN documentation. In other words, PWGSC is creating ex post fact mandatory requirements which it had not initially made part of its solicitation documentation.
PWGSC has acted carelessly and is simply wrong in its assessment of PLCom's product. First, it has erroneously characterised the Infolynx system. No official from either PWGSC or CFIA ever contacted PLCom either by telephone or in writing to ask for any product information or technical specifications prior to issuing the dismissal of PLCom's challenge. PLCOM does not know how PWGSC/CFIA concluded that its system does not run with Windows NT, nor why PWGSC/CFIA concluded that Infolynx can only be run as an externally hosted system. Had PWGSC or the CFIA made the most basic inquiries from PLCom, they could have quickly established that the Infolynx can very easily run locally on a Windows NT platform.
Second, as stated in its letter of January 15, 2022 PLCom is already a supplier of electronic media monitoring systems to the federal government. When PLCom challenged a similar ACAN to Densan Consultants for identical services in June/July 1999 by Elections Canada, the ACAN was withdrawn by Elections Canada because Elections Canada found that PLCOM was able to supply a competing and functionally equivalent electronic Media Monitoring system. After withdrawing its ACAN, Elections Canada issued an RFP and a full and open competitive procurement was held. PLCOM won that competition beating Densan with a higher point evaluation and a lower price in a fair and open competition. Elections Canada continues to use PLCom's system. There is no material difference between the Elections Canada requirement, which was openly competed and the current CFIA requirement which should be submitted to the same competitive process.
Third, PLCom submits that all the so-called mandatory requirements for Microsoft-branded software are specious, technically irrelevant, unfair and unnecessarily restrictive. PLCom's Infolynx system is a Web-based/HTTP (Hypertext Transfer Protocol) application that functions independent of the Network OS (Operating System). It is therefore specious and technically invalid to specify Windows/NT/IIS as a mandatory software requirement. Infolynx is entirely compatible with the TCP/IP network at the CFIA even if it is run on a Linux or Unix OS. The system functions much like a network appliance such as a network printer and because the entire Linux application is run and administered through a Web Browser Interface, the system is entirely independent of the Network OS.
In any event, a requirement mandating the use of specific trademarked or patented products is a breach of NAFTA Article 1007 which requires that technical specifications be specified in terms of performance criteria and that functional equivalents must be allowed. PWGSC's requirement for Microsoft product names and the Microsoft trademarks "Windows NT", "Microsoft Information Server (IIS)"and Microsoft "Active Server Page Scripting (ASP)" as its principal technical specification is thus contrary to NAFTA Article 1007 (3). PLCom also points out that the invocation of such Microsoft product brands has the effect of creating a Microsoft monopoly within the Federal government, thereby stifling open trade and free competition in Canada for electronic media monitoring system software.
Fourth, even if the Microsoft software requirements were not illegitimate under NAFTA and had not been introduced into the process ex post facto, they could not justify refusing to compete this requirement since Infolynx can run with Windows NT/MS IIS on any TCP/IP network. In other words, PLCom does not believe that such a technical requirement is legitimate, but it could meet such a requirement if it had the competitive opportunity to do so.
In discriminating against PLCom and refusing to purchase this requirement through a competitive process, PWGSC breached the procurement provisions of the applicable trade agreements, including:
NAFTA Articles 1007.1 (technical specifications created with the purpose of creating an unnecessary obstacle to trade), 1007.2 (technical specifications not in terms of performance criteria but instead requiring design or descriptive characteristics), 1007.3 (in failing to allow for functional equivalents and requiring specific trademarked software and platform), 1008 (tendering procedures that were applied in a discriminatory manner and failing to provide equal access to information with respect to a procurement in failing to inform PLCom of the Microsoft software and platform requirements), 1016 (in using a limited tendering procedure where none of the justifications listed in Articles 1016.1 or 1016.2 are present; AIT Articles 506.1 (in not following the prescribed competitive procedure - 506.2 to 506.9 - where none of the exceptional conditions set out in Articles 506.11 and 506.12 apply); Such other and further provisions as PLCom may submit and the Tribunal permit.
PLCom therefore requests that:
All of which is respectfully submitted.
Should the Tribunal have any questions regarding this complaint, please contact the undersigned at 613-231-5597, or by email to [email protected] or by post to P&L Communications Inc., 134 Sparks St., Suite 200, Ottawa On K1J 6P6.
Richard Lamothe BA (Hons), MA, MBA