On December 29, 2000, The Department of Public Works and Government Services (PWGSC) published on Canada's Electronic Tendering Service (MERX) an Advanced Contract Award Notice (ACAN) for Solicitation No. 39014-010701/A, sole-sourcing the contract to Densan Consultants, Ltd. The procurement in question was for an electronic media monitoring system to be delivered to the Canadian Food Inspection Agency (CFIA). P&L Communications (PLCom) of Ottawa, Ontario, produces a web/intranet-based media-monitoring application called InfoLynx, and wished to be given an opportunity to compete for this contract. On January 15, 2001, PLCom submitted a challenge to the ACAN, asking that the procurement be opened up for competition. The CFIA responded by stating that InfoLynx did not meet the mandatory technical requirements because it ran on Linux and PHP, and not Windows NT and ASP. PLCom was exasperated at this response. First of all it was technically incorrect: InfoLynx does indeed run on Linux, but is built with C++ and mod_perl and contains no PHP code. More importantly the response was in serious breach of the trade regulations. PLCom felt that it had to seek legal action, or go out of business, as this was the third solicitation in the past 12 months that mandated Windows NT.
A procurement of this type is governed by two documents: the Agreement on Internal Trade (AIT) and The North American Free Trade Agreement (NAFTA). The overriding principle in both documents is that competition is the norm. If any restrictive measures are imposed by a government acency, that agency must show why those restrictions were necessary. In this case, the CFIA and PWGSC had issued an ACAN that made no mention of any platform-related technical requirements, then had after the fact imposed vendor-specific requirements. On February 8, 2001, P&L Communications filed a complaint before the Canadian International Trade Tribunal (CITT). The complaint contained the following passage:
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.On May 30, 2001, after considerable debate between the interested parties, the CITT ruled that PLCom's original complaint was valid.
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.
The original complaint, filed February 8, 2001, can be found here.
The CITT ruling, issued May 30, 2001, can be found in HTML format on the local mirror, and on the CITT.gc.ca site
The CITT ruling, issued May 30, 2001, can be found in PDF format on the local mirror.
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