TRADUCTIONS TRD
v.
DEPARTMENT OF WESTERN ECONOMIC DIVERSIFICATION
File No. PR-2014-004

Determination and reasons issued
Monday, July 7, 2014

TABLE OF CONTENTS

• DETERMINATION
• STATEMENT OF REASONS
  • SUMMARY
  • PROCUREMENT PROCESS
  • COMPLAINT PROCESS
  • RELEVANT PROVISIONS OF THE RFP
  • POSITIONS OF PARTIES
    • Traductions TRD
    • WD
  • TRIBUNAL’S ANALYSIS
    • Costs
  • TRIBUNAL’S DECISION

 

IN THE MATTER OF a complaint filed by Traductions TRD 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.

BETWEEN

TRADUCTIONS TRD Complainant

AND

THE DEPARTMENT OF WESTERN ECONOMIC DIVERSIFICATION 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 not valid.

The Canadian International Trade Tribunal determines, as a preliminary indication, that it will not award costs in this matter. If the Department of Western Economic Diversification disagrees with the preliminary indication regarding costs, it may make submissions to the Canadian International Trade Tribunal, as contemplated in article 4.2 of the Procurement Costs Guideline. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of the costs, if any.

Jason W. Downey
Jason W. Downey
Presiding Member

Randolph W. Heggart
Randolph W. Heggart
Acting Secretary

Tribunal Member: Jason W. Downey, Presiding Member

Counsel for the Tribunal: Eric Wildhaber

Procurement Case Officer: Josée B. Leblanc

Registrar Officer: Sara Pelletier

Complainant: Traductions TRD

Government Institution: Department of Western Economic Diversification

Please address all communications to:

The Secretary
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

STATEMENT OF REASONS

SUMMARY

1. On April 8, 2014, Traductions TRD filed a complaint with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11(1) of the Canadian International Trade Tribunal Act^[1] concerning a procurement (Solicitation No. 4W001-14-5013) by the Department of Western Economic Diversification (WD) for translation services.
2. Traductions TRD alleged that its bid was improperly declared non-compliant due to an erroneous interpretation by WD of a requirement of the Request for Proposal (RFP).
3. Traductions TRD requested, as a remedy, a new evaluation of its bid in accordance with the criteria set out in the RFP and the postponement of the contract award. In the alternative, Traductions TRD requested that it be compensated for the costs incurred for its membership of the Ordre des traducteurs, terminologues et interprètes agréés du Québec.
4. For the reasons that follow, the Tribunal finds that the complaint is not valid.

PROCUREMENT PROCESS

5. On December 18, 2013, WD published the RFP on the federal government’s electronic tendering system. WD wished to award five Task Authorization Contracts.
6. During the procurement process, WD answered certain questions from the bidders. None of the questions or answers resulted in amendments or extensions to the RFP. WD received 32 proposals, including that of Traductions TRD, before the deadline for the receipt of bids on January 27, 2014.
7. According to the Government Institution Report (GIR), the evaluation committee met on February 5, 2014, to review their conclusions for each proposal.
8. On March 24, 2014, WD informed Traductions TRD that it would not make it an offer because other more favourable bids had been accepted.
9. In the GIR, WD indicated that five contracts were awarded on March 28, 2014, to suppliers that met all the requirements of the RFP.
10. In its complaint, Traductions TRD indicated that, on March 31, 2014, after phoning WD several times, it finally received a call from WD explaining that its proposal had been rejected, not because more favourable bids than its own had been accepted, but because it had omitted to include the curriculum vitae of a person mentioned in its proposal.
11. On March 31, 2014, Traductions TRD submitted an objection to WD by e-mail.
12. On April 2, 2014, WD wrote to Traductions TRD, informing it of the procedure to follow in order to file a complaint with the Tribunal.
13. On April 8, 2014, Traductions TRD filed its complaint with the Tribunal.

COMPLAINT PROCESS

14. On April 15, 2014, the Tribunal informed the parties that the complaint had been accepted 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] The same day, the Tribunal also issued a postponement of award of contract order in which it ordered WD to postpone the award of any contract until it had determined the validity of the complaint.
15. On May 5, 2014, the Tribunal received a letter dated April 24, 2014, from WD providing it with the contact information of the five winning bidders.
16. On May 12, 2014, WD filed a GIR with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules.^[3] On May 23, 2014, Traductions TRD filed comments on the GIR.
17. On June 12, 2014, the Tribunal issued an order rescinding the postponement of award order issued on April 15, 2014, because it was found that contracts had been made before the Tribunal’s order was issued; this order was therefore moot from the outset.
18. 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 information on record.

RELEVANT PROVISIONS OF THE RFP

19. The RFP contained the following general provisions regarding the preparation of the technical bids, the evaluation procedure and the certifications:

PART 3 – BID PREPARATION INSTRUCTIONS

. . . 

Section I: Technical Bid

In their technical bid, Bidders should demonstrate their understanding of the requirements contained in the bid solicitation and explain how they will meet these requirements. Bidders should demonstrate their capabilities and describe their approach in a thorough, concise and clear manner for carrying out the Work as described in Annex “A”: Statement of Work.

The technical bid should address clearly and in sufficient depth the points that are subject to the evaluation criteria against which the bid will be evaluated. Simply repeating the statement contained in the bid solicitation is not sufficient. In order to facilitate the evaluation of the bid, WD requests that Bidders address and present topics in the order of the evaluation criteria and under the same headings. To avoid duplication, Bidders may refer to different sections of their bids by identifying the specific paragraph and page number where the subject topic has already been addressed.

Annex “C”, Evaluation Procedures and Contractor Selection Method, contains additional instructions that Bidders should consider when preparing their technical bid.

. . . 

Section III: Certifications

Bidders must submit the certifications required under Part 5.

PART 4 – EVALUATION PROCEDURES AND BASIS OF SELECTION

1. Evaluation Procedures

Bids will be assessed in accordance with the entire requirement of the bid solicitation including the technical and financial evaluation criteria. An evaluation team composed of representatives of WD will evaluate the bids.

1.1 Technical Evaluation

. . . 

b) Mandatory Technical Requirements

As outlined in Annex “C”, Evaluation Procedures and Contractor Selection Method:

1. Overall experience. Each resource must provide an up to date curriculum vitae clearly demonstrating their experience and education.

. . . 

2. Contractor Selection Method

2.1 Basis of Selection – Highest Responsive Proposal – Combined Rating: Technical Merit 70% and Price 30% - Annex “C”

To be declared responsive, a bid must:

a. Comply with all the requirements of the bid solicitation;

b. Meet all the mandatory requirements at Bid Closing; and

c. Obtain the required minimum number of points specified in Annex “C” for the point rated evaluation criteria.

Bids not meeting (a) or (b) or (c) will be declared non-responsive. Neither the responsive bid obtaining the highest number of points nor the one with the lowest evaluated price will necessarily be accepted. The scoring of price is done by giving full marks to the lowest priced responsive proposal with other proposals being given a prorated score.

. . . 

PART 5 – CERTIFICATIONS

Bidders must provide the required certifications and documentation to be awarded a contract. Canada will declare a bid non-responsive if the required certifications are not completed and submitted as requested. Bidders should provide the required certifications in Section III of their bid.

. . . 

2. Additional Certifications Required Precedent to Contract Award

2.1 Education and Experience

The Bidder certifies that all the information provided in the résumés and supporting material submitted with its bid, particularly the information pertaining to education, achievements, experience and work history, has been verified by the Bidder to be true and accurate. Furthermore, the Bidder warrants that every individual proposed by the Bidder for the requirement is capable of performing the Work described in the resulting contract.

2.2 Certification

By submitting a bid, the Bidder certifies that the information submitted by the Bidder in response to the above requirements is accurate and complete.

. . . 

PART 6 – RESULTING CONTRACT CLAUSES

The following clauses and conditions apply to and form part of any contract resulting from the bid solicitation.

. . . 

10. Replacement of Specific Personnel

10.1 If specific individuals are identified in the Contract to perform the Work, the Contractor must provide the services of those individuals unless the Contractor is unable to do so for reasons beyond its control.

10.2 If the Contractor is unable to provide the services of any specific individual identified in the Contract, it must provide a replacement with similar qualifications and experience within forty-eight (48) hours and the individual tasking/responsibilities will be covered within five working days. The replacement must meet the criteria used in the selection of the Contractor and be acceptable to Canada. The Contractor must, as soon as possible, give notice to the Contracting Authority of the reason for replacing the individual and provide:

(a) The name, qualifications and experience of the proposed replacement; and

(b) Proof that the proposed replacement has the required security clearance granted by Canada, if applicable.

10.3 If it is necessary to replace personnel, the Contractor must give at least five (5) working days’ notice in writing to the Project Authority. The Contractor must not, in any event, allow performance of the Work by unauthorized replacement persons. The Contracting Authority may order that a replacement stop performing the Work. In such a case, the Contractor must immediately comply with the order and secure a further replacement in accordance with subsection 2. The fact that the Contracting Authority does not order that a replacement stop performing the Work does not relieve the Contractor from its responsibility to meet the requirements of the Contract.

. . . 

ANNEX “C”

EVALUATION PROCEDURES AND CONTRACTOR SELECTION METHOD

Mandatory Criteria

A proposal must meet all of the mandatory requirements set out in the evaluation criteria. Proposals that fail to meet these requirements will be discarded without further consideration.

Contractors interested in undertaking the Work described in the Statement of Work (SoW) must provide the following:

Annex “C” Part 1 - Mandatory Requirements

The proposal must demonstrate that all proposed resources possess the qualifications specified in the Statement of Work by providing a detailed résumé for the proposed resource(s), stating the resource’s work experience, education and other relevant details which clearly indicate that the resource meets the mandatory requirements. Failure to provide sufficient details to meet the mandatory criteria will result in the proposal being deemed non-responsive and will not proceed any further in the evaluation process.

MANDATORY CRITERIA

For each criterion, identify the relevant page number in your proposal.

M1 Overall Experience – Each resource must provide an up to date curriculum vitae clearly demonstrating the following:

Experience (minimum 4 years) in:

• Translation
• Revision and/or Proofreading
• Providing translation services to a Government of Canada client

Education:

• accreditation from a recognized university in translation, linguistics, or a related field
• valid certification from the Canadian Translators and Interpreters Council (CTIC) or its provincial equivalent

. . . 

POSITIONS OF PARTIES

Traductions TRD

20. Traductions TRD submitted that WD “unjustly and erroneously rejected my bid in response to [the RFP]”^[4] [translation, emphasis added]. According to Traductions TRD, the RFP did not require the inclusion of the curriculum vitæ of the person indicated as “substitute” [translation] in its proposal. Traductions TRD stated that the RFP provided, in section 10 – Replacement of Specific Personnel (Part 6), that the contractor would have to provide “the information concerning a proposed replacement only when the person named is no longer able to provide said services”^[5] [translation]. Traductions TRD also submitted that it was “clearly stated in the different sections of [Traductions TRD’s proposal] that Mr. Ronald Dompierre w[ould] be the specified person (assigned translator) who w[ould] perform all the tasks described in the RFP”^[6] [translation, bold in original].
21. In its comments on the GIR, Traductions TRD submits the following:

According to the Department, the main reason for the rejection of [my proposal] in this instance concerns the interpretation given by the WD evaluators to the term “substitute” used only once in my 25-page proposal. I reiterate that my intention on page 7 of my proposal was to show, in accordance with point 10 of the RFP, that it would be easy to find a replacement if the proposed person, namely, the assigned translator, was unable to perform the work for reasons beyond his control.

Concerning the Department’s observations regarding the use of the terms “We” and “Our” in my proposal, it is admitted in every sphere that, in a professional communication context or in a formal text, the first person plural (the editorial we) may be used instead of I.^[7]

[Translation, bold and italics in the original]

WD

22. WD submitted that it did not deem Traductions TRD’s proposal non-responsive on the basis of section 10 of the RFP – Replacement of Specific Personnel,^[8] but rather because it did not meet the mandatory requirements indicated in Annex “C”. Specifically, WD submitted that mandatory criterion M1 required that a curriculum vitæ be provided for each employee presented in a proposal and that Traductions TRD had omitted to attach a curriculum vitæ for the person presented as a member of its “team” [translation] (identified as “substitute” [translation]) in its proposal. Moreover, WD submitted that this person was an employee, because Traductions TRD had used “nous” (we) and “notre” (our) throughout its proposal.^[9]

TRIBUNAL’S ANALYSIS

23. Subsection 30.14(1) of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of the complaint. The issue is whether WD erred in declaring Traductions TRD’s proposal non-responsive. 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.
24. Section 11 of the Regulations provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, in this instance, are the Agreement on Internal Trade,^[10] the North American Free Trade Agreement,^[11] the Agreement on Government Procurement,^[12] the Canada-Chile Free Trade Agreement,^[13] the Canada-Peru Free Trade Agreement,^[14] the Canada-Colombia Free Trade Agreement^[15] and the Canada-Panama Free Trade Agreement.^[16]
25. Article 506(6) of the AIT requires that tender documents “. . . 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.”
26. Subsection 1015(4) of NAFTA provides that “(a) to be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation and have been submitted by a supplier that complies with the conditions for participation” and “(d) awards shall be made in accordance with the criteria and essential requirements specified in the tender documentation”. The other applicable trade agreements contain similar provisions to those found in NAFTA.^[17]
27. Essentially, the positions of the parties can be summarized as follows.
28. Traductions TRD alleges that its proposal should have been understood as only giving notice of the identity of the person Traductions TRD had proposed as a “replacement with similar qualifications and experience” if it ever had to resort to section 10 of the RFP. Traductions TRD claims that the RFP did not require that the qualifications and proof thereof by way of a curriculum vitæ be provided at this stage.
29. WD’s position is that Traductions TRD proposed a “Traductions TRD team in charge of the WD project” [translation] composed of an “assigned translator” [translation] and a “substitute” [translation] and therefore that Traductions TRD’s proposal had to include “an up-to-date curriculum vitæ” [translation] for “each employee” [translation] proving several elements of experience and education in accordance with mandatory criterion M1 of Annex “C” to the RFP. WD submits that, given that the curriculum vitæ of the “substitute” [translation] was not provided, Traductions TRD’s bid was correctly found to be non‑responsive.
30. The Tribunal notes that it typically accords a large measure of deference to evaluators in their evaluation of proposals. In Excel Human Resources Inc. v. Department of the Environment,^[18] 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.”
31. Moreover, in Joint Venture of BMT Fleet Technology Ltd. and NOTRA Inc. v. Department of Public Works and Government Services, the Tribunal indicated that “PWGSC’s determination will be considered reasonable if it is supported by a tenable explanation, regardless of whether or not the Tribunal itself finds that explanation compelling”.^[19]
32. Based on this standard of review, the complaint is not valid. The Tribunal finds that WD’s position is reasonable because it is supported by a tenable explanation.
33. Le Nouveau Petit Robert defines the word “équipe” (team) as a “group of persons united in a common task”^[20] [translation]. On its face, Traductions TRD’s proposal could reasonably be understood by WD’s evaluators as having been made by a business proposing a “team” composed of an “assigned” translator and a “substitute”. The terms “suppléant” or “suppléante” (substitute) do not appear in the RFP. The RFP only alludes to the possibility of a “replacement” in the circumstances and manner described above.
34. The Tribunal notes that Mr. Dompierre seems to confuse Traductions TRD’s bid and what he describes as “ma soumission” (my bid) as one and the same. The Tribunal is of the view that it was not unreasonable for WD’s evaluators to consider that what had been submitted to them was nothing other than a bid made by Traductions TRD and not a bid made by the individual, Mr. Dompierre.
35. Traductions TRD’s bid indeed indicates that “[o]ur firm consists of a team of professional translators-editors with vast work experience in various fields . . .” [translation]. Although Mr. Dompierre intended to submit a bid in his own name and to propose only himself as the sole resource (according to his words “traducteur attitré” (assigned translator), the bid in question cannot reasonably, or even correctly, be understood as such, but rather in the manner WD’s evaluators understood it.
36. Indeed, the RFP indicated that “[b]idders should demonstrate their capabilities and describe their approach in a thorough, concise and clear manner for carrying out the Work as described in Annex ‘A’: Statement of Work”. It should be noted that the RFP did not exclude the possibility that a business, a combination or a “team” could bid or that they, like an individual, could describe how they intended to perform the work.
37. As such, the “Traductions TRD team” could bid and, in such a case, it would therefore have to describe the manner in which it intended to perform the work; it was reasonable to interpret Traductions TRD’s bid as proposing the performance of the work by a “traducteur attitré” (assigned translator) and by a “suppléante” (substitute) who “will be able to ensure backup, as needed” [translation]. In short, it was reasonable to interpret Traductions TRD’s bid so that it provided for its own system of substitution for the “assigned translator” (therefore, in addition to the “replacement” mechanism provided in the RFP).
38. In other words, nothing in the RFP excluded the possibility for a bidder to describe that it intended to perform the work in this manner. Such a proposal would therefore have anticipated problems in connection to the availability of the bidder without having to resort to the mechanism of section 10 of the RFP (while preserving the possibility of using it if required).
39. However, in bidding in the manner it did, Traductions TRD had to ensure compliance with the requirement in the RFP concerning the inclusion of the curriculum vitæ of all the proposed resources, which it did not do; the substitute’s curriculum vitæ was not attached to the bid. At least, this is the reasonable evaluation made by WD’s evaluators regarding Traductions TRD’s bid.
40. Could this bid have been interpreted by WD’s evaluators in the performance of their work as Traductions TRD suggests in its complaint? Perhaps. But the Tribunal has very serious doubts that such an interpretation emerges clearly from the wording of the bid or would have been reasonable.
41. In fact, section 10 is very clear. If Traductions TRD, in response to the RFP, proposed a resource to replace Mr. Dompierre, it had to provide details (curriculum vitæ) to substantiate the proposal and comply with the requirements of the RFP. In the event that no replacement was proposed, subsection 10.2 of the RFP proposed a “replacement” mechanism that could be initiated at a later date according to certain specific conditions; either of the two conditions applies, but not both at the same time.
42. By immediately providing the name of the person specified as a substitute, Traductions TRD was bound by the requirements of the RFP, namely, the obligation to provide the person’s curriculum vitæ at the time of the bid. The later substitution mechanism of subsection 10.2 cannot be applied immediately. This is all the more true when the identity and the qualifications of the substitute are known. Subsection 10.2 instead proposes a mechanism to submit a new person to WD, unknown at the time of the bid in response to the RFP, in case the main translator becomes subsequently unavailable in the course of the contract.
43. Moreover, the position put forward by Traductions TRD in this complaint consists of explanations provided after the end of the bidding period and extrinsic to the bid. In several regards, these explanations contradict the wording of the bid, or at least substitute for a reasonable interpretation of the intention expressed therein, even if Mr. Dompierre had intended, quite sincerely, to express something other than what was understood by WD’s evaluators.
44. In the Tribunal’s opinion, it nonetheless remains that the common meaning of the words used in Traductions TRD’s bid, disregarding the explanations subsequently provided by Mr. Dompierre, supports the conclusion of WD’s evaluators.

Costs

45. The Tribunal is inclined not to award costs in this matter.
46. The Procurement Costs Guideline (the Guideline) bases the assessment of the level of complexity of a complaint on three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the proceedings. The preliminary indication of the level of complexity of this complaint is below the lowest degree mentioned in Appendix A of the Guideline (Level 1). Indeed, in the Tribunal’s opinion, the complexity of the procurement, the complaint and the proceedings was very low.
47. The Tribunal notes that WD indicated, in its letter to Traductions TRD dated March 27, 2014, that it “would not receive an offer at this time because other more favourable bids [have been] accepted” [translation, emphasis added]. This could imply that Traductions TRD had submitted a responsive bid (which was not the case), which could have been considered again at a later date.
48. This letter did not contain a notice regarding the possible recourse to the Tribunal. Only WD’s letter of April 2, 2014, specified this.
49. The evidence on record suggests that Traductions TRD became aware of the actual reason for the rejection of its bid (and consequently of the ground of its complaint) only during conversations with WD, and that this reason was not communicated to it in writing.
50. Traductions TRD saw its proposal declared non-responsive due to what amounts to a matching error between its real intention and the strict framework established by the RFP. This complaint probably occasioned very few costs for WD (moreover, the GIR is barely five pages long, one-and-a-half spaced).
51. Moreover, Traductions TRD’s complaint is not without bearing on the integrity of the procurement system. Indeed, it reminds us of the importance for federal institutions to inform the bidders as accurately as possible regarding the reasons for an eventual rejection, and the possible recourses before the Tribunal.
52. As it has done with other government institutions in the past,^[21] the Tribunal invites WD to look at ways in which it could better inform the bidders of their recourses with the Tribunal and, in particular, the means by which it could make them aware of the time limits for filing a complaint with the Tribunal, in order to prevent a complaint from being rejected solely on the ground of non-compliance with the time limits.
53. The Tribunal recognizes the efforts already made by WD to that effect, as evidenced by its letter to Traductions TRD dated April 2, 2014. However, the Tribunal considers that such information must be conveyed to the bidders systematically, as soon as possible, even in the absence of a dispute. Therefore, WD should consider the inclusion of the following paragraph in the main body of its solicitations and when informing bidders of the possibility of requesting a debriefing, as well as in all letters advising bidders that they are not successful:

As a general rule, a complaint regarding this procurement process must be filed with the Canadian International Trade Tribunal (the Tribunal) within 10 working days from the date on which a bidder becomes aware, or reasonably should have become aware, of a ground of complaint. Alternatively, within that time frame, a bidder may first choose to raise its ground of complaint by way of an objection to [WD]; if [WD] denies the relief being sought, a bidder may then file a complaint with the Tribunal within 10 working days of that denial. In certain exceptional circumstances, a 30-day time frame may be applicable for filing a complaint with the Tribunal. More information can be obtained on the Tribunal’s Web site (www.citt-tcce.gc.ca) or by contacting the Secretary of the Tribunal at 613-993-3595. Reference: section 6 of the Canadian International Trade Tribunal Procurement Inquiry Regulations (S.O.R./93-602).

54. The Tribunal also notes that Mr. Dompierre was diligent in exercising his rights by filing a complaint immediately with the Tribunal, in a situation that seemed nebulous to him at the time, due to the potentially contradictory information from WD.
55. Therefore, as a preliminary indication, the Tribunal will not award costs in this matter.

TRIBUNAL’S DECISION

56. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.
57. The Tribunal determines, as a preliminary indication, that it will not award costs in this matter. If WD disagrees with the preliminary indication regarding costs, it may make submissions to the Tribunal, as contemplated in article 4.2 of the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the costs, if any.