Canadian International Trade Tribunal Tribunal canadien du commerce extérieur CANADIAN INTERNATIONAL TRADE TRIBUNAL Procurement DETERMINATION AND REASONS File No. PR-2014-028 Centre de linguistique appliquée T.E.S.T. Ltée v. Department of Public Works and Government Services Determination and reasons issued Tuesday, December 16, 2014
Canadian International Trade Tribunal PR-2014-028 TABLE OF CONTENTS DETERMINATION... i STATEMENT OF REASONS... 1 INTRODUCTION... 1 THE RFSA AND THE COMPLAINT FILED BY T.E.S.T.... 1 ANALYSIS... 3 Ground 1: Did PWGSC Breach Its Obligations Under the AIT by Refusing to Award a Supply Arrangement to T.E.S.T. for the Fields for Which It Bid?... 4 Ground 2: Did PWGSC Breach Its Obligations Under the AIT by Providing T.E.S.T. With Insufficient Explanations Regarding the Reasons for the Rejection of Its Proposal?... 7 Ground 3: Were the Selection Criteria Provided Under the RFSA Unfavourable to Some Translation Services Suppliers?... 10 REMEDY AND COSTS... 11 DETERMINATION... 12
Canadian International Trade Tribunal PR-2014-028 BETWEEN IN THE MATTER OF a complaint filed by Centre de linguistique appliquée T.E.S.T. Ltée pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.); AND FURTHER TO a decision to conduct an inquiry into the complaint pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act. CENTRE DE LINGUISTIQUE APPLIQUÉE T.E.S.T. LTÉE Complainant AND THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES Government Institution DETERMINATION Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is valid in part. Pursuant to subsection 30.15(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal recommends that the Department of Public Works and Government Services review its practices regarding government procurement to ensure that unsuccessful suppliers are each provided a complete and comprehensible debriefing concerning the evaluation of their proposal and the reasons for rejecting their proposal. Each party will bear its own costs. Daniel Petit Daniel Petit Presiding Member
Canadian International Trade Tribunal - ii - PR-2014-028 Tribunal Member: Counsel for the Tribunal: Acting Senior Registrar Officer: Complainant: Counsel for the Complainant: Government Institution: Counsel for the Government Institution: Daniel Petit, Presiding Member Eric Wildhaber Anja Grabundzija Haley Raynor Centre de linguistique appliquée T.E.S.T. Ltée Jean Marguerat Department of Public Works and Government Services Roy Chamoun Benoît de Champlain Susan D. Clark Ian McLeod Please address all communications to: Canadian International Trade Tribunal 15th Floor 333 Laurier Avenue West Ottawa, Ontario K1A 0G7 Telephone: 613-993-3595 Fax: 613-990-2439 E-mail: secretary@citt-tcce.gc.ca
Canadian International Trade Tribunal - 1 - PR-2014-028 INTRODUCTION STATEMENT OF REASONS 1. On September 18, 2014, Centre de linguistique appliquée T.E.S.T. Ltée (T.E.S.T.) filed a complaint with the Canadian International Trade Tribunal (the Tribunal), pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, 1 concerning a Request for a Supply Arrangement (RFSA) (Solicitation No. EN966-140305/D) issued by the Department of Public Works and Government Services (PWGSC) for the modernization of the Translation Bureau s Directory of Linguistic Services Suppliers. The Translation Bureau is a special operating agency reporting to PWGSC. 2. T.E.S.T. alleged that it should have been issued a supply arrangement for the fields for which it applied for. Moreover, T.E.S.T. alleged that it was provided insufficient explanations on the results of the evaluation and the reasons for which its proposal was rejected. Finally, T.E.S.T. alleged that the selection criteria under the RFSA were unfavourable to certain translation services suppliers. 3. As a remedy, T.E.S.T. requested that it be issued a supply arrangement for the relevant fields. T.E.S.T. did not request the reimbursement of its complaint costs. 4. The Tribunal accepted the complaint for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations. 2 5. On November 10, 2014, PWGSC filed a Government Institution Report (GIR) with the Tribunal, pursuant to section 103 of the Canadian International Trade Tribunal Rules. 3 On November 18, 2014, T.E.S.T. filed its comments on the GIR. 6. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that an oral hearing was not required and disposed of the complaint on the basis of the written information on the record. THE RFSA AND THE COMPLAINT FILED BY T.E.S.T. 7. The Translation Bureau provides official language translation services to various institutions, including Parliament, the courts and various departments and agencies of the federal public service. The RFSA sought to update the Translation Bureau s Directory of Linguistic Services Suppliers, who are the only potential suppliers who may bid subsequently under procurements concerning translation contracts. 4 8. The RFSA was published on February 10, 2014. The bid closing date was March 31, 2014. 9. Under the terms of the RFSA, the suppliers chose the field or fields for which they wanted to be qualified (for example, Aboriginal Affairs, Real Property, Law, etc.). 1. R.S.C., 1985, c. 47 (4th Supp.) [CITT Act]. 2. S.O.R./93-602 [Regulations]. 3. S.O.R./91-499 [Rules]. 4. Exhibit PR-2014-028-15, Tab A at 4-5.
Canadian International Trade Tribunal - 2 - PR-2014-028 10. Moreover, the RFSA provided that the potential suppliers could submit a proposal for one or more of three tiers, defined in terms of daily translation capacity. Thus, Tier 1 pertained to the requirements where the daily translation capacity is greater than or equal to 1,500 words and less than 3,000 words. 5 Tier 2 pertained to requirements where the daily translation capacity is greater than or equal to 3,000 words and less than 8,000 words. Tier 3 is not relevant in this instance. 11. The specific requirements that had to be met in order to obtain a supply arrangement for the field and tier requested were specified in the RFSA. In general, for each field requested, the potential suppliers had to show, among other things, that they had translated a certain number of words in relation to the field over the last five years as of the date of the RFSA. 6 Since the RFSA was published on February 10, 2014, the reference period extended from February 10, 2009, to February 10, 2014 (the prescribed period); this specification regarding the relevant dates was made in response to a question from a bidder, which was the subject of Amendment No. 005 to the RFSA. 7 12. The RFSA incorporated by reference the provisions of document 2008 (2013-06-01) Standard Instructions Request for Supply Arrangements Goods or Services (Standard Instructions), as appears from article 1 of Part 2 of the RFSA. 8 Therefore, the Standard Instructions were an integral part of the RFSA. 13. The RFSA indicated that to be declared responsive, a proposal had to comply with the requirements of the RFSA and meet all mandatory technical evaluation criteria. 9 14. T.E.S.T. submitted a proposal for Tier 1 in the following fields: General and Administrative Texts, Aboriginal Affairs, Employment, Informatics, Transportation, Environmental Science, Mechanics, and Technical. 10 15. It also submitted a proposal for Tier 2 in the following fields: General and Administrative Texts, Informatics, Transportation, Mechanics, and Technical. 16. On August 21, 2014, PWGSC notified T.E.S.T. that the evaluation was completed, but that it would not be issued any supply arrangement. By way of explanation, this letter included a standard formula for each tier, in which the reasons why T.E.S.T. did not qualify were checked off, but without providing any details regarding the field concerned or the facts on which the conclusion was based. 11 17. On August 22, 2014, T.E.S.T. requested additional explanations on the reasons for the rejection of its proposal. PWGSC responded on September 3, 2014, in an e-mail providing certain additional explanations. 18. The same day, T.E.S.T. wrote again to PWGSC, providing certain counter-arguments to the explanations provided. PWGSC responded to this e-mail on September 8, 2014. It then acknowledged it had erred on one of the reasons for rejecting its proposal, but, considering the other reasons for rejecting 5. Ibid., Tab A at 25. 6. Ibid., Tab A at 26. 7. This amendment appears in an e-mail dated September 3, 2014, sent to T.E.S.T. by PWGSC, Exhibit PR-2014-028-01. 8. Exhibit PR-2014-028-15, Tab A at 12, article 1. 9. Ibid., Tab A at 24. 10. Ibid., Tab C. 11. Exhibit PR-2014-028-01.
Canadian International Trade Tribunal - 3 - PR-2014-028 T.E.S.T. s proposal, which remained valid, PWGSC indicated that it maintained its decision. 12 Thus, PWGSC indicated ultimately that it rejected T.E.S.T. s proposal for the reason that certain translation project performance dates stated in the forms submitted by T.E.S.T. (for both tiers) did not correspond to the prescribed period and that, moreover, in several cases, the number of words translated indicated in T.E.S.T. s response forms was lower than the number of words required in the RFSA. 13 19. After sending PWGSC another letter of objection, which remained unanswered, T.E.S.T. filed its complaint with the Tribunal on September 18, 2014, within the time limit set out in subsection 6(2) of the Regulations. ANALYSIS 20. In conducting an inquiry, the Tribunal limits its considerations to the matter of the complaint. 14 At the conclusion of the inquiry, the Tribunal must determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been observed. 15 Section 11 of the Regulations further provides that the Tribunal is required to determine whether the RFSA was conducted in accordance with the applicable trade agreements, which, in this instance, is the Agreement on Internal Trade. 16 21. As indicated above, T.E.S.T. s complaint is based on three grounds: 1) its proposal complied with all the criteria of the RFSA and, therefore, it should have been issued a supply arrangement for the fields for which it bid; 2) insufficient explanations were provided to it regarding the results of the evaluation; and 3) the selection criteria under the RFSA were unfavourable to certain translation services suppliers. 22. In this regard, the Tribunal notes that T.E.S.T. raised certain other arguments in its comments on the GIR, such as allegations that the RFSA was confusing, that the evaluation process had been too long and that no evaluation criteria in the RFSA accounted for the client s satisfaction for the work performed by the potential supplier in terms of quality and punctuality. Without discussing the question of whether or not 12. Ibid. 13. Ibid. 14. Subsection 30.14(1) of the CITT Act. 15. Subsection 30.14(2) of the CITT Act. 16. 18 July 1994, C. Gaz. 1995.I.1323, online: Internal Trade Secretariat< http://www.ait-aci.ca/index_en/ait.htm> [AIT]. None of the other trade agreements apply to the RFSA, since translation services are specifically excluded (Section B, Annex 1001.1b-2 to the North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, 17 December 1992, 1994 Can. T.S. No. 2 (entered into force 1 January 1994); Section B, Annex 5 to the Free Trade Agreement between Canada and the Republic of Panama, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/panama/panama-toc-panamatdm.aspx> (entered into force 1 April 2013); Section B, Annex 1401-4 to the Free Trade Agreement between Canada and the Republic of Colombia, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/colombia-colombie/anc-colombiatoc-tdm-can-colombie.aspx> (entered into force 15 August 2011); Section B, Annex 1401.1-4 to the Free Trade Agreement between Canada and the Republic of Peru, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/peru-perou/chapter-chapitre- 14.aspx> (entered into force 1 August 2009); Section B, Annex Kbis-01.1-4 to the Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50 (entered into force 5 July 1997). Chapter Kbis, entitled Government Procurement, came into effect on September 5, 2008)) or are not included in the list of services (Annex 4 to the Agreement on Government Procurement, 15 April 1994, online: World Trade Organization <http://www.wto.org/english/docs_e/legal_e/final_e.htm>).
Canadian International Trade Tribunal - 4 - PR-2014-028 these allegations are founded, since such allegations are not part of the complaint filed by T.E.S.T. on September 18, 2014, the Tribunal decided, in accordance with subsection 30.14(1) of the CITT Act, not to consider these additional allegations. Ground 1: Did PWGSC Breach Its Obligations Under the AIT by Refusing to Award a Supply Arrangement to T.E.S.T. for the Fields for Which It Bid? 23. Article 506(6) of the AIT provides that [t]he tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria. It also arises from this provision that, when evaluating a bid, the government institution has the obligation to apply the criteria and conditions set out in the tender documents. 24. Before examining T.E.S.T. s allegations, it bears mentioning that the Tribunal typically accords a large measure of deference to evaluators in their evaluation of proposals. In Excel Human Resources Inc., 17 the Tribunal confirmed that it... will interfere only with an evaluation that is unreasonable and will substitute its judgment for that of the evaluators... only when the evaluators have not applied themselves in evaluating a bidder's proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way. 25. Pursuant to the RFSA, PWGSC had to issue a supply arrangement to the potential suppliers whose proposals met all the mandatory technical evaluation criteria. 18 The issue, therefore, is to determine whether PWGSC violated the terms of the RFSA and those of the AIT by considering that T.E.S.T. s proposal did not meet the mandatory technical evaluation criteria of the RFSA. Acceptance by PWGSC of T.E.S.T. s Proposal for Certain Fields 26. As indicated above, T.E.S.T. contested PWGSC s conclusion that its proposal did not meet the mandatory criteria of the RFSA regarding the fields for which it applied for, on the grounds that certain project performance dates entered on T.E.S.T. s Response Form did not comply with the prescribed period and that, in several fields, the translated word count indicated on T.E.S.T. s Response Form was below the required threshold. 27. It appears from the GIR that PWGSC has since revised its position in part. Indeed, PWGSC indicated in the GIR that, since the filing of the complaint, it has issued a supply arrangement to T.E.S.T. for the following fields of Tier 1: General and Administrative Texts, Aboriginal Affairs, Transportation, Mechanics, and Technical, and for the following fields of Tier 2: Mechanics and Technical. 19 28. Indeed, in light of the comments on the GIR filed by T.E.S.T., the Tribunal notes that T.E.S.T. has accepted, without reservation, the award of a supply arrangement for the General and Administrative Texts, Aboriginal Affairs, Transportation, Mechanics, and Technical fields of Tier 1 and the Mechanics and Technical fields of Tier 2. 29. In light of the foregoing, the Tribunal therefore finds that T.E.S.T. s complaint regarding the rejection of its proposal related to these fields is valid. 17. (2 March 2012), PR-2011-043 (CITT) at para. 33. 18. Exhibit PR-2014-028-15, Tab A at 24, article 2.1. 19. Ibid. at paras. 16, 18.
Canadian International Trade Tribunal - 5 - PR-2014-028 Contested Fields of Tier 1 30. However, PWGSC maintained its conclusion of non-compliance regarding the other fields for which T.E.S.T. bid. The fields of Tier 1 still in dispute are Employment, Informatics, and Environmental Science. 31. In this regard, PWGSC explained that T.E.S.T. s proposal did not meet the requirements of the RFSA for the Employment and Environmental Science fields of Tier 1, because none of the proposed resources (i.e. none of the three proposed translators) had individually translated the 300,000 words required in relation to those fields during the prescribed period. 20 32. Regarding the Informatics field, PWGSC explained that, contrary to what was indicated in T.E.S.T. s proposal, a verification revealed that no contract related to this field had been awarded to T.E.S.T. by the Translation Bureau during the prescribed period, 21 such as it appears from the summary of the Translation Bureau contracts awarded to T.E.S.T. 22 The Translation Bureau was the only client cited for the Informatics field in T.E.S.T. s proposal for Tier 1. 23 33. T.E.S.T. did not contradict these explanations in its comments on the GIR or provide any proof to the contrary, alleging only that the RFSA was confusing. 34. The RFSA provided that, for Tier 1, each of the proposed resources had to have the minimum experience required for the relevant field:... MANDATORY TECHNICAL EVALUATION CRITERIA FOR TIER 1 OFFICIAL LANGUAGES TRANSLATION The supplier must demonstrate the qualifications and the experience of each one of the resources proposed in the tables below, in accordance with the fields selected.... 24 [Emphasis added] 35. This criterion was also the subject of a question by a potential supplier, following which PWGSC clarified that, for Tier 1, suppliers must demonstrate translation experience for each of the proposed resources, as appears from answer 33 included in Amendment No. 004 to the RFSA. 25 36. Moreover, for each of the relevant fields, the RFSA posed as a selection criterion the demonstration of translation experience of at least 300,000 words over the last five years as of the date of the RFSA. 26 37. In this regard, the RFSA reserved PWGSC s right to verify the accuracy of the information provided by the potential supplier for the purposes of evaluation of the proposals. Indeed, the Standard Instructions read as follows: 20. Ibid. at paras. 21-25, 29. 21. Ibid. at paras. 27-28. 22. Ibid., Tab E. 23. Ibid., Tab C at 2. 24. Ibid., Tab A at 25. 25. Ibid., Tab A at 3. 26. Ibid., Tab A at 27, 29, 31, 34, 38.
Canadian International Trade Tribunal - 6 - PR-2014-028 15 Conduct of Evaluation 1. In conducting its evaluation of the arrangements, Canada may, but will have no obligation to, do the following: (a) seek clarification or verification from suppliers regarding any or all information provided by them with respect to the RFSA; (b) contact any or all references supplied by suppliers to verify and validate any information submitted by them;... (e) verify any information provided by suppliers through independent research, use of any government resources or by contacting third parties;... 27 38. The Tribunal is of the view that the grounds invoked by PWGSC to conclude that T.E.S.T. s proposal was non-compliant for the Employment, Informatics, and Environmental Science fields of Tier 1 are reasonable in light of the above-mentioned provisions of the RFSA and the evidence on the record. Therefore, the Tribunal concludes that PWGSC s decision not to accept T.E.S.T. s proposal regarding these fields was not unreasonable. Contested Fields of Tier 2 39. Concerning Tier 2, PWGSC argued that T.E.S.T. s was non-compliant for the General and Administrative Texts, Transportation, and Informatics fields. 40. Indeed, PWGSC explained that for the General and Administrative Texts field, T.E.S.T. did not show experience of 600,000 words translated during the prescribed period, in particular because some of the projects that might have been relevant had already been accounted for in the Mechanics and Technical fields in order to allow T.E.S.T. to qualify for those fields, and that the same translation experience could not be accounted for twice, in accordance with the terms of the RFSA. 41. T.E.S.T. provided no argument or evidence to the contrary. 42. Moreover, the RFSA indeed provided, among the mandatory technical evaluation criteria for Tier 2, that [t]he supplier cannot use the same translation experience for more than one domain. 28 This criterion was confirmed and explained more fully in response to questions by potential suppliers, in answers 14 and 15 included in Amendment No. 003 to the RFSA 29. 43. Therefore, the Tribunal finds that PWGSC s decision not to accept T.E.S.T. s proposal regarding the General and Administrative Texts field of Tier 2 was in compliance with the terms of the RFSA. Therefore, it was not unreasonable. 44. Regarding the Transportation field, PWGSC explained that a verification of the Translation Bureau s records found that the number of words actually translated was lower than what T.E.S.T. indicated it had translated for this client regarding this field. First of all, T.E.S.T. accounted for the number of words 27. Available at: https://buyandsell.gc.ca/policy-and-guidelines/standard-acquisition-clauses-and-conditions-manual/ 1/2008/11. 28. Exhibit PR-2014-028-15, Tab A at 41. 29. Ibid., Tab B at 5-6.
Canadian International Trade Tribunal - 7 - PR-2014-028 stipulated in the award of certain contracts in relation to this field, and not the number of words it actually translated pursuant to these contracts. Second, it accounted for certain contracts that fell within another specialty field. 30 45. T.E.S.T. presented no evidence to the contrary. 46. The RFSA provided a Concordance Table between the former specialties used by the Translation Bureau (by means of which the contracts performed during the period prescribed by the potential supplier were classified) and the new specialties that appear in the RFSA. 31 In this regard, the Tribunal notes that T.E.S.T. made certain comments suggesting that it disagreed with the reclassification of the specialties; however, it is not within the Tribunal s jurisdiction in this complaint to rule on the appropriateness or inappropriateness of the specialty classification method used by the Translation Bureau, and the Tribunal can only note that the Concordance Table clearly indicated the correspondence between the former specialties and the new fields for the purposes of the RFSA. 47. It was also clear from the RFSA that it is the number of words actually translated pursuant to a contract, and not the number of words that the contract covered, that had to be taken into account for the purposes of the RFSA; indeed, this aspect was expressly clarified by PWGSC in response to a question by a potential supplier concerning Amendment No. 003 to the RFSA. 32 48. Consequently, PWGSC s decision not to accept T.E.S.T. s proposal regarding the Transportation field of Tier 2 was in compliance with the terms of the RFSA. Therefore, it was not unreasonable. 49. Finally, concerning the Informatics field of Tier 2, PWGSC reiterated that T.E.S.T. was never issued a contract related to this field, according to the verification done with the Translation Bureau, 33 so that the volume of words translated regarding this field during the prescribed period could not have reached the threshold set for Tier 2, contrary to what was indicated in T.E.S.T. s proposal. 50. Once again, T.E.S.T. presented no contrary argument or evidence on this point. 51. Therefore, in light of the evidence, PWGSC s decision not to accept T.E.S.T. s proposal regarding the Informatics field of Tier 2 was in compliance with the terms of the RFSA. Conclusion on the First Ground of Complaint 52. In conclusion, for the foregoing reasons, the Tribunal finds that this ground of complaint is valid in part. Ground 2: Did PWGSC Breach Its Obligations Under the AIT by Providing T.E.S.T. With Insufficient Explanations Regarding the Reasons for the Rejection of Its Proposal? 53. The second ground of complaint invoked by T.E.S.T. is that it received insufficient explanations for the reasons of the rejection of its proposal regarding various fields. In particular, it stated that it received only a rejection without any individualized explanation [translation]. T.E.S.T. reiterated, in its comments on the GIR, that the letter notifying it of the rejection of its proposal and the e-mails exchanged subsequently 30. Ibid. at paras. 33-39. 31. Ibid., Tab A at 5, 9-11. See also ibid., Tab B at 6 (question and answer No. 17). 32. Ibid., Tab B at 8-9 (question and answer No. 26(a)). 33. Ibid. at para. 41; ibid., Tab E.
Canadian International Trade Tribunal - 8 - PR-2014-028 do not provide explanations, the last e-mail sent by T.E.S.T. remaining unanswered. Moreover, T.E.S.T. objected to the fact that none of these messages is signed, contrary to the practice of the federal government, and the responsible persons capable of providing explanations refused to answer us by telephone [translation]. 54. PWGSC did not mention this ground of complaint in its GIR. 55. The AIT does not contain any special provision obliging the government institution concerned to offer a debriefing to the bidders whose proposals were rejected. 56. However, the very terms of the RFSA provided for a right for suppliers to request a debriefing on the results, as follows: PART 1 GENERAL INFORMATION... 5. Debriefings Suppliers may request a debriefing on the results of the Request for Supply Arrangements process. Suppliers should make the request to the Supply Arrangement Authority within 15 working days of receipt of the results of the Request for Supply Arrangements process. The debriefing may be in writing, by telephone or in person. 34 57. On August 21, 2014, T.E.S.T. was notified by e-mail of the rejection of its proposal. By way of explanation of the reasons for this evaluation, an attachment for Tier 1 and another for Tier 2 stated that a supply arrangement would not be issued to T.E.S.T. because none of the proposed resources had been deemed compliant. The second page of the attachments reproduced a standard form showing the reasons why T.E.S.T. had not been chosen. For Tier 1, three reasons for rejecting its proposal were checked off, as follows:... Certain dates entered on the form were not in compliance with the prescribed period (from February 2009 to February 2014). Insufficient word count. Certain mandatory certifications were not submitted or are incomplete. 58. For Tier 2, only the first reason was checked off. [Translation] 59. On August 22, 2014, T.E.S.T. requested by e-mail that it be informed as to which specific contracts had been deemed inadmissible for reasons of non-compliance with the prescribed period for Tiers 1 and 2. It also requested explanations of the other two reasons indicated for the rejection of its proposal concerning Tier 1. 60. On September 3, 2014, PWGSC provided certain explanations in response to these questions. Regarding the first reason for rejection, PWGSC referred in general to Attachment 1 to Part 4 and Attachment 2 to Part 4 and reiterated that the translation experience must have been acquired over the last five years as of the date of the RFSA ; it also recalled that in Amendment No. 005 to the RFSA, it was expressly confirmed that the prescribed period extended from February 10, 2009, to February 10, 2014. 34. Ibid., Tab A at 4-6.
Canadian International Trade Tribunal - 9 - PR-2014-028 61. Regarding the second reason for rejecting T.E.S.T. s proposal, PWGSC only responded that, [i]n several cases, the number of words translated indicated on [the] form is lower than the number of words required [under the terms of the RFSA] [translation]. 62. Finally, regarding the third reason for rejecting T.E.S.T. s proposal, PWGSC explained that T.E.S.T. had not provided a certification that was required. 63. T.E.S.T. again wrote to PWGSC to challenge these explanations. On September 8, 2014, PWGSC responded by e-mail, acknowledging that the third reason for rejecting its proposal was in fact erroneous, because the certification in question had indeed been received. 64. However, PWGSC indicated that it nonetheless maintained the results of the evaluation for the other two reasons. The explanation supporting the other two reasons was as follows: 1 Certain dates entered on the form were not in compliance with the prescribed period (from February 2009 to February 2014). The dates used to determine the period (last five years before the date of the RFSA) are those submitted by the suppliers through the Response Form. Unfortunately, the dates you entered on your Response Form for several fields, including those for the Mechanics, Technical and Transportation fields, were outside the prescribed period. 2 Insufficient word count. In several cases, the number of words translated indicated [on] your Response Form is lower than the number of words required as stipulated in ATTACHMENT 1 OF PART 4. [Translation.] 65. It appears from the following message from T.E.S.T. to PWGSC, dated September 10, 2014, that T.E.S.T. clearly understood the explanation provided by PWGSC regarding the first reason for rejecting its proposal. Indeed, it did not request additional explanations, but instead contested the method of evaluation used by PWGSC, which only considered the dates entered on the Response Form. The relevant passages of T.E.S.T. s message are as follows:... Thank you for these clarifications, which at least have the merit of clearly defining the problem.... Regarding your first argument:... I will answer you that, in my opinion, the dates appearing on the forms do not have the purpose of documenting Linguistique TEST s experience in terms of number of words. The volumes claimed appear in the attached table [...]. In fact, all these contracts were performed within the defined period from 02-09 to 02-14 (5 years). Therefore, the figures that we indicate are perfectly in compliance with your requirements. In my opinion, the forms in question, for Tier 1 and Tier 2, should reflect only the periods over which these services were rendered.... [Translation] 66. Therefore, in the Tribunal s opinion, the explanations provided by PWGSC regarding the first reason for rejection were sufficient to enable T.E.S.T. to understand how this first reason justified the rejection of its proposal. Indeed, since the evaluation method employed PWGSC was reduced, according to what it explained in its e-mail dated September 8, 2014, to verifying the dates entered on the Response Form, it is difficult to conceive how it could have been explained further. In this regard, it must be noted
Canadian International Trade Tribunal - 10 - PR-2014-028 that, by deciding to review the file and to recognize that T.E.S.T., all things considered, fulfilled the conditions required for certain fields, PWGSC necessarily opted for a different evaluation method, i.e. one that is not limited solely to the dates entered on the Response Form. 67. It nonetheless remains that the explanations provided by PWGSC regarding the third reason for rejecting the proposal (insufficient word count) could not have been briefer and, ultimately, were incomprehensible. Indeed, it is only in the GIR that we learn precisely why the word count had been deemed insufficient in some regards in reference to the requirements of the RFSA (in particular, the requirement that each of the resources proposed by the bidders for Tier 1 had to have translated 300,000 words during the prescribed period). 68. For this reason, the Tribunal considers that the explanations provided by PWGSC were insufficient, because they did not enable T.E.S.T. to understand fully the reasons why its proposal was rejected. 69. The Tribunal would have expected PWGSC, which has considerable resources, to treat the requests for information from its potential suppliers with more consideration. Indeed, it is unfortunate that T.E.S.T. had to resort to the formal complaint process before the Tribunal to obtain a detailed explanation of the reasons for the rejection of its proposal. The Tribunal is of the view that such situations must be avoided. Quality debriefings favour good relations between the Government and its potential suppliers and therefore encourage competition in its procurements. Moreover, by enabling unsuccessful potential suppliers to understand the reasons why their offer was rejected, quality debriefings can also help prevent controversies from ending up in court, and the additional costs and delays this involves. 70. Therefore, the Tribunal finds that PWGSC breached article 5 of Part 1 of the RFSA by providing a debriefing that did not enable T.E.S.T. to fully understand the reasons for the rejection of its proposal. Ground 3: Were the Selection Criteria Provided Under the RFSA Unfavourable to Some Translation Services Suppliers? 71. Finaly, T.E.S.T. alleged that the criteria of the RFSA effectively reduced competition by eliminating the Government s traditional suppliers [translation] by imposing a seniority cap. 35 In its comments on the GIR, T.E.S.T. reiterated the same allegation. 72. PWGSC did not discuss this ground of complaint in the GIR. 73. The Tribunal will not examine the merits of this ground of complaint, because it finds that it was not raised within the prescribed time limit. 74. Subsections 6(1) and (2) of the Regulations prescribe strict time limits within which a supplier generally must file a complaint concerning a procurement process. Indeed, pursuant to these provisions, the supplier has 10 working days after the day on which the basis of complaint became known or reasonably should have become known to the potential supplier, either to file an opposition with the government institution, or to file a complaint with the Tribunal. The relevant parts of section 6 are as follows: 6. (1) Subject to subsections (2) and (3), a potential supplier who files a complaint with the Tribunal in accordance with section 30.11 of the Act shall do so not later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier. 35. Exhibit PR-2014-028-01.
Canadian International Trade Tribunal - 11 - PR-2014-028 (2) A potential supplier who has made an objection regarding a procurement relating to a designated contract to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier. 75. Moreover, the Federal Court of Appeal indicated the following regarding the time limits inherent in the procurement system pursuant to the CITT Act and the applicable trade agreements, including the AIT: In procurement matters, time is of the essence.... Therefore, potential suppliers are required not to wait for the attribution of a contract before filing any complaint they might have with respect to the process. They are expected to keep a constant vigil and to react as soon as they become aware or reasonably should have become aware of a flaw in the process. The whole procurement process... is meant to be as open as it is meant to be expeditious. It is focussed on achieving finality of contracts in the best possible time. 36 76. Pursuant to these principles, complaints based on the choice or interpretation of the conditions of a procurement must be presented within 10 working days of the time when the alleged procedural error became or should have become known. 77. In the present case, the RFSA was published on February 10, 2014, and bids were accepted up to May 31, 2014. In this context, T.E.S.T. knew or should have known the fact that the RFSA imposed a seniority cap [translation], to use T.E.S.T. s words, no later than March 31, 2014, the deadline by which it had to file its proposal. 78. Therefore, pursuant to subsections 6(1) and (2) of the Regulations, T.E.S.T. had 10 working days from March 31, 2014, to either file a complaint with the Tribunal or make an objection to PWGSC regarding this issue. 79. However, based on the evidence on the record, T.E.S.T. seems not to have stated its concerns regarding the unfairness of the criteria contained in the RFSA until September 10, 2014, 37 more than five months after the day on which it should have known of the criteria contained in the RFSA. 80. For the reasons set out above, the Tribunal finds that this ground of complaint is time-barred. REMEDY AND COSTS 81. For the foregoing reasons, the Tribunal finds that the complaint filed by T.E.S.T. is valid in part. PWGSC acknowledged, subsequent to the filing of the complaint, that it had erroneously rejected T.E.S.T. s proposal for a supply arrangement for five fields under Tier 1 (General and Administrative Texts, Aboriginal Affairs, Transportation, Mechanics, and Technical) and two fields under Tier 2 (Mechanics and Technical). In addition, PWGSC did not provide a debriefing enabling T.E.S.T. to understand the evaluation and its results. As such, PWGSC acted contrary to the provisions of the RFSA and, consequently, contrary to its obligations pursuant to the AIT. 36. IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd., 2002 FCA 284 (CanLII), at paras. 18, 20. 37. Exhibit PR-2014-028-01 (e-mail sent to PWGSC on September 10, 2014).
Canadian International Trade Tribunal - 12 - PR-2014-028 82. When its inquiry reveals that a procurement process was not conducted in compliance with the requirements of the AIT, the Tribunal must determine the appropriate remedy, having regard to the terms of subsections 30.15(2) and (3) of the CITT Act. 83. The Tribunal notes that T.E.S.T. has already obtained the remedy it requested, because it was included in the Directory of Linguistic Services Suppliers for the fields for which it qualified. In any case, since an inclusion in the Directory of Linguistic Services Suppliers does not guarantee that a contract will be awarded, it may not be appropriate to grant T.E.S.T. compensation for the period during which it was excluded. 84. By force of circumstance, these proceedings also enabled T.E.S.T. to obtain the required information to understand why its proposal did not qualify for the other fields thus obtaining the information that should have been communicated to it at the debriefing stage. 85. There is no indication of bad faith on either part. The Tribunal also does not consider that the violations found, recognized and corrected by PWGSC regarding the application of the criteria of the RFSA are very serious, because they are closely related to the very terms of the RFSA and the facts of the case. However, the unsatisfactory treatment of the requests for information by suppliers who did not qualify under the RFSA could have undermined the trust between the Government and its potential suppliers, such as T.E.S.T., and as such have a negative impact on the efficacy of the procurement system. 86. Therefore, having reviewed all the prescribed factors and the facts of the case, the Tribunal finds that the appropriate recommendation is to advise PWGSC to review its practices regarding government procurement to ensure that unsuccessful suppliers are each provided a complete and comprehensible debriefing concerning the evaluation of their proposal and the reasons for which it did not qualify. 87. Since T.E.S.T. and PWGSC each prevailed in part, each party will bear its own costs. DETERMINATION 88. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is valid in part. 89. Pursuant to subsection 30.15(2) of the CITT Act, the Tribunal recommends that PWGSC review its practices regarding government procurement to ensure that unsuccessful suppliers are each provided a complete and comprehensible debriefing concerning the evaluation of their proposal and the reasons for rejecting their proposal. 90. Each party will bear its own costs. Daniel Petit Daniel Petit Presiding Member