STATEMENT OF REASONS

 

INTRODUCTION

1. On October 10, 2014, COTRACO Ltd. (COTRACO) 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 Supply Arrangement (RFSA) (Solicitation No. EN966‑140305/D) issued by the Department of Public Works and Government Services (PWGSC) for the modernization of the Directory of Linguistic Services Suppliers of the Translation Bureau, a special operating agency reporting to PWGSC.
2. COTRACO raised several grounds of complaint:

   (1)   the rejection of its proposal for English-French translation of texts within the Parliamentary Proceedings field;

   (2)   the rejection of its proposal for translation of texts within the General and Administrative Texts field;

   (3)   certain erroneous outcomes of the RFSA, in particular, the apparent registration of COTRACO in the directory of suppliers selected for French-English translation, a category for which it did not bid;

   (4)   the “unfair competition” [translation] that results, according to COTRACO, from the terms of the RFSA;

   (5)   the definition of “unit price per word” [translation] in the procurement resulting from the RFSA;

   (6)   the unsatisfactory explanations provided by PWGSC on the results of the evaluation and the reasons for rejecting COTRACO’s proposal.

3. As a remedy, COTRACO requested that it be issued a supply arrangement for the Parliamentary Proceedings and General and Administrative Texts fields, that its name be deleted from the list of French-English translators, that suppliers selected for Tiers 2 and 3 of the RFSA be prohibited from access to Tier 1 procurement, that the definition of “unit price per word” in the procurement resulting from the RFSA be modified and that PWGSC staff members communicating with the suppliers whose proposals have been rejected be required to sign their correspondence and accept to provide a debriefing in person or by phone, or the equivalent. COTRACO did not request the reimbursement of the costs it incurred regarding its complaint.
4. On October 15, 2014, the Tribunal accepted the complaint for inquiry, as it seemed to meet the requirements of subsection 30.13(1) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.^[2] As discussed below, after receiving the submissions of the parties, the Tribunal henceforth decided to cease the inquiry, pursuant to subsection 30.13(5) of the CITT Act and paragraphs 10(a) and (c) of the Regulations, on the grounds that the complaint has no valid basis and/or the grounds of complaint were not put forward within the time limits set out in the Regulations.
5. On November 12, 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 24, 2014, COTRACO filed its comments on the GIR. Moreover, on December 3, 2014, PWGSC filed a letter containing certain comments on COTRACO’s submissions on the GIR. COTRACO was invited to reply. On December 8, 2014, COTRACO filed a letter with the Tribunal requesting that it resolve the complaint on the basis of the existing record.

THE RFSA AND THE COMPLAINT FILED BY COTRACO

6. The Translation Bureau provides official language translation services to various institutions, including Parliament, the courts and the various departments and agencies of the federal public service. The RFSA sought to update its directory of pre-selected translation services suppliers, who are the only potential suppliers who may bid subsequently for procurements concerning translation contracts.^[4]
7. The RFSA was published on February 10, 2014. The bid closing date was March 31, 2014.
8. Under the terms of the RFSA, the suppliers chose the field or fields for which they wanted to be pre-selected (for example, Aboriginal Affairs, Real Property, Law, etc.).
9. Moreover, the RFSA provided that the potential suppliers could submit a proposal for one or more of three “tiers”,^[5] 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”.^[6] 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”. Finally, Tier 3 pertained to “requirements where the daily translation capacity is greater than or equal to 8,000 words”.
10. The specific requirements to be met in order to obtain a supply arrangement in 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”.^[7] 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.^[8]
11. 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.^[9] Therefore, they were an integral part of the RFSA.
12. 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.^[10]
13. COTRACO submitted a proposal for Tier 1 in the following fields: General and Administrative Texts, Aboriginal Affairs, Finance, and Parliamentary Proceedings.^[11]
14. On August 21, 2014, PWGSC notified COTRACO that the evaluation was completed and that it would be issued a supply arrangement. By way of explanation for why COTRACO was or was not pre‑selected for the fields it applied for, the letter included a form entitled “Tier 1 – Results of the Evaluation” [translation]. This form indicated, in short, that COTRACO was pre-selected for one of the fields (Aboriginal Affairs), but that its proposal was rejected for the other fields on the ground that “certain dates entered in the form are not in compliance with the prescribed period (from February 2009 to February 2014)” [translation].
15. The same day, COTRACO sent an email to PWGSC asking it to provide explanations concerning the decision not to recognize its qualifications regarding the Parliamentary Proceedings field, or to review its decision in this regard.
16. On August 26, 2014, PWGSC responded to COTRACO by email. Basically, PWGSC did not provide any additional explanation for its decision, making only a general reference to the provisions of the RFSA. Indeed, the explanations provided consisted of the reproduction of the provisions of the RFSA for Tier 1, in which the words “over the last five years as of the date of the RFSA” were highlighted. At the most, PWGSC added a reference to the fact that the “prescribed period” was specified in Amendment No. 005 and that it pertained to the period from February 10, 2009, to February 10, 2014. Finally, PWGSC indicated that it “did not intend to provide feedback in person or by phone” [translation].^[12]
17. On September 18, 2014, COTRACO sent emails to various PWGSC officials to dispute the explanations it was given and raise some other arguments. Thus, it indicated that, in its opinion, “nothing in the [RFSA] documents indicated that exceeding the dates could result in disqualification” [translation] and that such an interpretation was “narrow and discriminatory” [translation]. On the contrary, COTRACO indicated that, in its opinion, the fact that the prescribed period fell within the dates included in its proposal and that the number of words indicated suggested a “pace” [translation] exceeding the one imposed by the “minimum period” [translation] prescribed by the RFSA meant that its proposal met the requirements of the RFSA.
18. In the same email, COTRACO also objected to the rejection of its proposal for the General and Administrative Texts field, on the ground that not selecting it for this field was inconsistent, since the qualification in the same field was recognized for another bidder who proposed the owner of COTRACO among its resources (i.e. among the translators performing translations on this bidder’s behalf).
19. Finally, in the same email, COTRACO also raised the fact that, on September 16, 2014, it received an invitation to tender for a French-English translation contract, a category for which it never asked to be pre-selected. Moreover, according to COTRACO, allowing companies pre-selected for Tiers 2 and 3 to also bid for contracts corresponding to Tier 1 created “unfair competition” [translation].
20. On October 3, 2014, PWGSC informed COTRACO by email that it had decided to “review [its] entire proposal” [translation] and that it would provide COTRACO with more details once this review was completed.
21. On October 10, 2014, COTRACO filed this complaint prior to receiving PWGSC’s final answer.

ANALYSIS

22. Pursuant to subsection 30.11(1) and section 30.1 of the CITT Act and to subsections 3(1) and (2) of the Regulations, a potential supplier may file a complaint with the Tribunal concerning any aspect of the procurement process that relates to a contract covered by a trade agreement. In the present case, the RFSA relates to a contract covered by the Agreement on Internal Trade.^[13]
23. However, the Tribunal may inquire into a complaint only if several other prescribed conditions are met, pursuant to subsection 30.13(1) of the CITT Act and section 6 of the Regulations.
24. Subsection 30.13(5) of the CITT Act and section 10 of the Regulations provide that the Tribunal may cease conducting an inquiry and dismiss the complaint if one or more of these conditions are not met. Consequently, the Tribunal may, inter alia, cease conducting an inquiry on the grounds that the complaint has no valid basis and/or the grounds of complaint were not filed within the legislative deadline.

Ground 1—Parliamentary Proceedings Field

25. First, although PWGSC finally issued a supply arrangement to COTRACO for the Parliamentary Proceedings field, thus acknowledging that its initial evaluation leading to the rejection of COTRACO’s proposal was unreasonable and that COTRACO’s objections on this matter were justified, it is noteworthy that COTRACO filed its complaint on October 10, 2014, before PWGSC completed the re‑evaluation of COTRACO’s proposal and notified COTRACO of the conclusions of its re‑evaluation, according to PWGSC’s intentions clearly indicated in its email of October 3, 2014.
26. Subsections 6(1) and (2) of the Regulations, which prescribe the strict time limits within which a supplier must generally raise its grievances concerning a procurement process, stipulate that a supplier has 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the supplier, either to make an objection to 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.

(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.

27. Since COTRACO decided to make an objection to PWGSC on September 18, 2014, pursuant to subsection 6(2) of the Regulations, it could not file a complaint with the Tribunal in this regard before it was denied relief by PWGSC. Quite contrary to a denial of relief, PWGSC’s email dated October 3, 2014, indicated that it was going to conduct a complete review of the proposal in response to COTRACO’s objections.
28. In the circumstances, COTRACO had the obligation to wait for PWGSC’s final reply before filing a complaint with the Tribunal. However, it filed its complaint without even knowing whether the review of its proposal would lead PWGSC to reconsider its initial position.
29. Consequently, COTRACO’s complaint in this regard was premature. Moreover, the Tribunal finds that, since COTRACO obtained the relief it was seeking, the complaint is now moot. Nonetheless, the Tribunal reiterates the importance for government institutions to deploy every possible effort to ensure the evaluations are reasonable from the outset.

Ground 2—General and Administrative Texts Field

30. Regarding the rejection of COTRACO’s proposal for the General and Administrative Texts field—a decision that was maintained by PWGSC following the review of the proposal—in addition to the fact that the complaint on this ground was also premature because it was filed before obtaining a final answer from PWGSC, the Tribunal finds that the explanations offered in the GIR concerning the reasons for this evaluation are reasonable.
31. Indeed, it appears from the complaint and the comments on the GIR filed by COTRACO that COTRACO acknowledges^[14] that the number of words it translated in relation to this field during the prescribed period was less than the 300,000 words required by the RFSA, on the basis of the information included in its proposal for Tier 1. The relevant passage of the complaint reads as follows:

In the General and Administrative Texts category, I indicated a total of 297,500 words between February 2009 and February 2014, and 79,365 words between September 2008 and December 2009. I agree that 2,500 words were missing for the required period, but while I was refused the specialty in my own name, it was awarded to a translation firm with which I collaborate occasionally . . . .

[Translation]

32. Since COTRACO’s proposal for the General and Administrative Texts field did not meet the requirements of the RFSA, the Tribunal can only find that PWGSC acted in accordance with the terms of the RFSA by declaring this proposal non-responsive. Indeed, the RFSA clearly stipulated, among the mandatory evaluation criteria for Tier 1, that “[s]upply arrangements that fail to meet all the mandatory technical criteria will be declared non-responsive.”^[15]
33. However, COTRACO argued that its proposal should be accepted for this field because the proposal submitted by a translation firm with which it sometimes collaborates, and which had listed the owner of COTRACO among its resources (i.e. among the translators performing translations on its account), had been accepted. COTRACO alleged that this is inconsistent and requested that PWGSC issue it a supply arrangement on the basis of the proposal submitted by this other translation firm.^[16]
34. This argument goes against with the fundamental rule that a proposal must be evaluated solely on the basis of the information it contains (subject to the right reserved by the government institution to verify the veracity of this information), a principle that was clearly set out in the Standard Instructions, as follows:

05 (2013-06-01) Submission of Arrangements

. . .

7. Unless specified otherwise in the RFSA, Canada will evaluate only the documentation provided with the arrangement. Canada will not evaluate information such as references to Web site addresses where additional information can be found, or technical manuals or brochures not submitted with the arrangement.^[17]

[Emphasis added]

35. Moreover, the RFSA, which provided in this case that the same supplier could submit more than one proposal, for example, one in a personal capacity and the other in a joint venture, expressly provided that, in such a case, the proposals would be assessed independently.^[18]
36. Finally, COTRACO’s submissions on the GIR reveal that the difference in the results of the two proposals do not stem from an inconsistent evaluation by PWGSC, but instead result from discrepancies in the information that was contained in both proposals. Indeed, in its comments on the GIR, COTRACO explains that it did not include, in its own proposal, the translations performed by its owner on behalf of this other translation firm, while the other firm mentioned the translations in its proposal and therefore met the requirements of the RFSA.
37. In this regard, while COTRACO also alleged in its comments on the GIR that, in preparing its proposal, it was confused^[19] by the Tier 1 evaluation criterion, which stipulated that “[t]he supplier cannot use the same translation experience for more than one domain”, its interpretation of this criterion is unreasonable. The criterion in question pertained, according to its terms, to the word count for different fields, and not for different proposals submitted by the same supplier.^[20]
38. In any case, to the extent COTRACO found the terms of the RFSA were confusing, it was incumbent on COTRACO to ensure, before submitting its proposal, that it clearly understood the requirements of the RFSA. The Standard Instructions expressly provided that “[i]t is the supplier’s responsibility to . . . obtain clarification of the requirements contained in the RFSA, if necessary, before submitting an arrangement . . . .”^[21]
39. Indeed, as mentioned in these reasons, subsections 6(1) and (2) of the Regulations provide that a supplier has 10 working days from the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier, either to make an objection to the government institution, or to file a complaint with the Tribunal. As the Federal Court of Appeal indicated, under the CITT Act and the applicable trade agreements, potential suppliers “. . . 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.”^[22]
40. According to these principles, complaints based on the choice or interpretation of the conditions of a procurement must be submitted within 10 working days from the date on which the complainant becomes aware or reasonably should have become aware of the alleged flaw in drafting; the potential suppliers are not to wait for the award of a contract before filing any complaint they might have concerning the procurement process.^[23] In other words, potential suppliers who submit their proposals despite an alleged apparent flaw in the wording of the rules cannot complain later about the same rules on the basis of which they accepted to bid.
41. In this instance, the RFSA was published on February 10, 2014, and the bid closing date was March 31, 2014. In this context, COTRACO was aware or reasonably should have become aware of the terms of the RFSA and the alleged ambiguity no later than March 31, 2014, the date by which it had to submit its proposal.
42. Therefore, pursuant to subsections 6(1) and (2) of the Regulations, COTRACO had 10 working days from March 31, 2014, either to file a complaint with the Tribunal or to make an objection on this matter to PWGSC. However, according to the evidence on record, COTRACO raised the ambiguity of this provision of the RFSA only in its comments on the GIR, filed on November 24, 2014.
43. Therefore, COTRACO’s argument based on the ambiguity of the criteria of the RFSA is time‑barred.
44. For all these reasons, the Tribunal finds that PWGSC rightly refused to issue a supply arrangement to COTRACO for the General and Administrative Texts field.

Other Grounds of Complaint

Ground 3

45. COTRACO’s third ground of complaint pertains to the apparent “erroneous result of the RFSA” [translation], namely, the apparent inclusion of COTRACO in the directory of French-English translation services suppliers, a directory in which it never requested to be included (COTRACO bid under the RFSA only for English-French translation and not vice versa). Specifically, COTRACO based its allegation on the fact that a bid solicitation was sent to it under another request for proposal—LSO-4-00273-01 to 05—, which concerned French-English translation. As a remedy, COTRACO requested to be deleted from the directory of French-English translators.
46. PWGSC did not respond to this allegation, considering that it was “irrelevant for the purposes of the challenge to the RFSA that is before the Tribunal” [translation].^[24]
47. The Tribunal invites PWGSC to take note of the fact that COTRACO admits that it was erroneously solicited to bid under a procurement procedure for which it was not pre-selected. The Tribunal draws no inference from this fact for the purpose of these proceedings.

Ground 4

48. Regarding the ground of complaint based on the “permeability of tiers” [translation], to use COTRACO’s wording, to the extent that it sees this as a breach of the AIT, this, once again, is a situation COTRACO should have raised much earlier. Indeed, pursuant to Section I of Part 3 of the RFSA,^[25] it was clear that each tier was open to all the potential suppliers who submitted a responsive proposal for that tier. Moreover, COTRACO acknowledges this, because it cites the following in its complaint:

The RFSA allows for registration in three different tiers: “For Official Languages Translation, suppliers may register in one or more tiers.”^[26]

[Translation]

49. As such, this “permeability of tiers” situation was or reasonably should have been apparent to COTRACO from reading the very terms of the RFSA, i.e. not later than March 31, 2014, the deadline for submitting the proposals. In accordance with section 6 of the Regulations, COTRACO then had 10 working days from the time this situation became known or reasonably should have become known to it, either to make an objection to PWGSC or, if appropriate, file a complaint with the Tribunal. Yet it appears from the evidence that it was only on September 18, 2014, more than five months after the bid closing date, that COTRACO raised its allegations on the discrimination that would result, in its opinion, from such a situation.
50. Therefore, this ground of complaint is time-barred.

Ground 5

51. This inquiry concerns the procurement process in relation to the RFSA, which extends from the publication of the RFSA to the award of the supply arrangements resulting from the evaluation of the proposals received in response to the RFSA. The fifth ground of complaint, namely, the contestation of the definition of “unit price per word” in procurements resulting from the RFSA, does not pertain to this.
52. Indeed, Ground 5 of COTRACO’s complaint pertains rather to different procurement procedures. By COTRACO’s admission, the definition of “unit price per word” does not appear at all in the RFSA but rather in the tender processes for specific translation contracts that will be sent to the selected suppliers.
53. Therefore, the Tribunal has no jurisdiction to examine these allegations in this inquiry.

Ground 6

54. Finally, concerning the allegation that COTRACO did not receive sufficient explanations regarding the grounds for rejecting its proposal, this ground was also raised late. Indeed, COTRACO requested additional explanations from PWGSC in its email of August 21, 2014, and it received certain additional explanations from PWGSC on August 26, 2014. Yet it was only on October 10, 2014, in its complaint to the Tribunal, that COTRACO stated that it was still dissatisfied with the quality or quantity of explanations that it received, far beyond the time limits set out in section 6 of the Regulations.
55. This being said, in another case concerning the RFSA, the Tribunal reiterated the importance for PWGSC to ensure that it provides sufficient explanations to its potential suppliers.^[27] These comments remain relevant in this instance as well.^[28]

DETERMINATION

56. For the foregoing reasons, pursuant to subsection 30.13(5) of the CITT Act and paragraphs 10(a) and (c) of the Regulations, the Canadian International Trade Tribunal ceases its inquiry and dismisses the complaint.