FOREIGN TRADE |
Novell Canada Ltd. v. Canada (Minister of Public Works and Government Services)
A-440-99
Rothstein J.A.
26/5/00
8 pp.
Judicial review of decision of Canadian International Trade Tribunal (CITT) applicant's complaint valid, recommending government compensate applicant for loss of contract to supply software licences--Applicant supplier of Network Operating System (NOS) to Department of National Defence--Government giving public notice of intent to purchase Microsoft server licences, client access licences to upgrade Banyan NOS--Government's position acquisition exempt from procurement provisions of NAFTA, other Trade Agreements requiring government procurement to be by way of competitive tendering because of uneconomical nature of such procedures, time constraints associated with achieving Y2K compliance, project merely upgrade--While basis of applicant's complaint specific contract not subject to competitive tendering, also alleging server and client access licence contract part of procurement program that would shut applicant out of DND market to supply new NOS--Seeking determination CITT declined to exercise jurisdiction to determine whether government engaged in contract splitting to avoid obligations under NAFTA, other Trade Agreements--Application allowed--CITT referring to contract splitting as peripheral issue--In view of applicant's complaint, could hardly be considered "peripheral"--CITT confining itself to server, client access licences contract because prior or future procurement actions not before it--But complaint, reply providing some references to hardware, software actions already taken by DND, and actions applicant thought would take place that would result in inevitable rationalization, migration of DND NOS to Microsoft--CITT could not say only server, client access licences contract before it--CITT refusing to consider whether contract component of larger procurement process, one of issues raised in complaint--Standard of review correctness--CITT having jurisdiction to decide whether government engaged in contract splitting, but not exercising that jurisdiction --North American Free Trade Agreement, S.C. 1993, c. 44.