This article is an excerpt from Government Procurement, which is available for purchase.
In its October 2012 determination in Team Sunray and CAE Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal upheld the government’s decision to reject a complainant’s proposal for failing to provide a required declaration from an original equipment manufacturer. The case dealt with a Department of Defence RFP for the provision of an integrated suite of communication and data equipment. The RFP required that proponents provide written assurances from the original equipment manufacturer regarding the availability of the required equipment:
Of particular relevance to this inquiry is the pre-selected mandatory requirement listed in Article 6.5.2. of Volume 1 to the RFP, which provides as follows:
6.5.2. The Bidders must provide, for the LCSS radios (PRC 117, 148, 152) and the DAGR (if the ISS-S provides military GPS capability via an interface to the CF in-service DAGR
[Defense Advanced GPS Receiver]), a certification note with their bid submission from the Original Equipment Manufacturer (OEM) indicating that they will furnish the required ICD’s [Interface Control Documents] to bidders and assist the Bidder in the required integration/engineering effort thereby allowing the winning Bidder to complete the work and fully qualify the ISS-S once in contract. In order to obtain contact information for the applicable OEM’s bidders should submit a request to the Contracting Authority.ICD Certification:
We, (Name of OEM), hereby certify that we will furnish the required Interface Control Documents to (Name of bidder) and assist (Name of bidder) in the required integration/engineering effort thereby allowing the (Name of bidder) to complete the work and fully qualify the ISS-S once in contract.
Name of OEM:
Per:
(Name and Title)
It is expected that Technical Assistance Agreements (TAA’s) will be required for the provision of ICD’s for these devices noted above and will need to be in place post contract award between the winning bidder and the respective OEM’s. It is also expected that Canadian Controlled Goods Certification will be mandatory in obtaining this documentation.
As Non-Disclosure Agreements (NDA’s) are to be arranged fully by the OEM’s of these devices and prospective ISSP bidders, the Canadian Department of National Defence (DND) is acting solely in a facilitating role with regards to this process.[Bold in original, emphasis added]
(para. 10)
The complainant was a joint venture comprised of Team Sunray and CAE Inc. However, the required certification provided from the OEM only referred to CAE Inc. and did not refer to Team Sunray. The proposal was rejected as non-compliant for failing to mention both members of the joint venture team. The complainants challenged their rejection, arguing that the provision of the certification naming one joint venture party should be sufficient for meeting the mandatory requirement for the entire team. The Tribunal disagreed, finding that the RFP required each member of the joint venture to provide the required certification and that the government had properly rejected the proposal as non-compliant for failing to meet this requirement.
