Complainant’s Position
In 1998, a number of discussions took place between the Corel Corporation (Corel) and the Department of Public Works and Government Services (the Department) on the basis of the procurement of an enterprise license for an office automation suite (Corel corporation, 2004).
In 1989, Corel made significant contributions in the sphere of graphic design (Company information, 2015). Its achievements made it possible to become a good competitor for such companies like Microsoft, Abode, or Apple (Corel corporation competition, 2015).
Regarding the competition offered to a number of companies, Corel admitted that the evaluation framework for the Request for Proposal was in favor of Microsoft and organized in a discriminatory manner.
Regarding a number of articles and agreements made between the competitors and the Department, Corel underlined that certain training, integrating, and conversion requirements were not imposed on Microsoft. Besides, Corel wanted to clarify the conditions under which the methodology of the project failed to meet the required governmental goals and opportunities and did not meet the design discussed earlier.
Finally, it was necessary to discuss the points like the violations of policies and regulations of the procurement, as well as the conditions of the international trade agreements.
In other words, Corel wanted to rely on the idea that all relations and operations had to be based on the concepts of openness and fairness, and the Department failed to meet all those agreements and deprived Corel of the opportunity to have information in time and gain control over the structure of the RFT.
The first complaint was based on the price conversion. The second complaint was connected with the inability to solve misunderstandings and the lack of sufficient information on the conversion work (Corel corporation, 2004).
It was also necessary to provide more time for setting a closing date. Even SAIC with its possibility to solve problems that are of vital importance in the world (SAIC, 2015) supported the idea that time provision is the possibility to analyze information better and clarify the conditions under which misunderstandings could take place.
Still, Corel got a rejection and could respond properly to the solicitation issues. Regarding all those complaints and the inabilities to come to the same conclusions, Corel took a clear and definite position and asked to establish a number of fair rules within the frames of which it was possible to succeed in procurement.
However, because of the request and the inability of postponement, fair compensation was impossible, and the contract award was a fait accompli (Corel corporation, 2004).
Defendant’s Position
The position of the Department is clear and definite indeed. The Department admitted that each competitor had a fair opportunity to compete. It may happen that some participants could have a better cost advantage due to the fact that this competitor is an existing contractor. All competitors have to understand that there are certain costs that should be spent on the competitions.
It is hard to control the payments taxpayers could make. That is why the Department could not ignore such types of costs because doing so could lead to the necessity to compete on the software license price only and neglecting such aspects like training the staff, installing the programs, or even signing the required documents.
After the first complaint had been made by Corel, the Department improved some changes in the competition. The position of Microsoft was almost equal to the positions of other suppliers. However, the Department was not sure if Corel was able to take the necessary position and meet the cost changes on the necessary level.
Besides, it was suggested that some points mentioned by Corel could not be regarded as the cases of discrimination. It was one of the standards set by Windows that could not be neglected or circumvented. Speaking about circumvents, the Department also admitted that Corel’s second complaint was not a new idea. It was an attempt to re-evaluate the already established rules and regulations and choose the conditions that were more appropriate for Corel in particular.
Microsoft’s Position
The position of the third party (not directly involved in the case) is similar to the position it gains in business: Microsoft makes everything possible to help people achieve more (About Microsoft, 2005).
Microsoft does not want to take one party’s position and support it all the time. The company chose a third aspect of the case and described the situation from its own perspective. First, it was stated that Microsoft did not receive any preferences in regards to the solicitation.
The position of the company made it possible to gather software licenses that could form a kind of crucial mass (Corel corporation, 2004) that became evident and could be regarded by the company’s competitors (Corel in particular) as an additional use of possibilities in a “fair” competition.
Microsoft used its potential to made enterprise-wide solutions, and Corel noticed such opportunity and used it as the basis for a complaint. Microsoft suggested supporting the idea of contract splitting within the frames of which it was possible to divide the requirements of the parties into smaller parts and clear up the essence of the complaints (OECD, 2013).
At the same time, Microsoft supported the idea of conversion costs and defined it as a reasonable solution that could be done during the competitions of such type.
The Ruling
The decision made by the Tribunal was based on several stages. First, it was necessary to identify the validity of the complaints offered by Corel. Second, it was obligatory to investigate the case thoroughly and clarify the conditions under which the procurement was conducted.
Due to the facts that the Department objected to the second complaint of the Corel, and Corel, in its turn, offered the requirements of the CITT Act and the Regulations the evaluation of which proved the appropriateness of the second complaint, it was proved that the Department failed to determine the same conditions for competitions for all participants.
At the same time, it was not appropriate for the Tribunal to neglect the efforts made by the Department to correct the situation and make the competitions fair.
Still, it was concluded that the complaint of Corel is valid due to the fact the solicitation was not organized in accordance with the points identified by Tendering Procedures. It was ordered to the Department to present a new proposal for compensation in regards to the Corel’s demands and identify the opportunities that had not been available to Corel during the competition.
The proposal had to be offered in 30 days after the determination of the Tribunal was made. Besides, Corel could get its reasonable costs in order to respond to the solicitation based on the complaints.
References
About Microsoft. (2015). Microsoft.
Company information. (2015). Corel. Web.
Corel corporation competition. (2015). Hoovers. Web.
Corel corporation. (2004). Canadian International Trade Tribunal. Web.
OECD. (2013). Public procurement review of the state’s employees’ social security and social services institute in Mexico. OECD Publishing.
SAIC. (2015). Web.