TALK SCIENCE TO ME COMMUNICATIONS INC.
v.
CANADIAN NUCLEAR SAFETY COMMISSION
File No. PR-2015-035

Determination and reasons issued
Tuesday, January 12, 2016

TABLE OF CONTENTS

• DETERMINATION
• STATEMENT OF REASONS
  • SUMMARY OF THE COMPLAINT
  • PROCUREMENT PROCESS
  • POSITIONS OF PARTIES
    • Talk Science to Me
    • CNSC
  • RELEVANT PROVISIONS OF THE RFP
  • TRIBUNAL’S ANALYSIS
    • Standard of Review
    • Did the CNSC Fail to Properly Evaluate M2 and M8 in Talk Science to Me’s Proposal?
    • Remedies and Costs
  • DETERMINATION OF THE TRIBUNAL

 

IN THE MATTER OF a complaint filed by Talk Science to Me Communications Inc. 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

TALK SCIENCE TO ME COMMUNICATIONS INC. Complainant

AND

THE CANADIAN NUCLEAR SAFETY COMMISSION 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.

Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal recommends, as a remedy, that the Canadian Nuclear Safety Commission re-evaluate the proposal submitted by Talk Science to Me Communications Inc. within 30 days of the issuance of the reasons for this determination, in accordance with the applicable trade agreements, for the requirement that is the subject of this complaint.

If, as a result of this re-evaluation, Talk Science to Me Communications Inc.’s proposal is one of the three highest-rated proposals in accordance with the evaluation process provided in the solicitation, the Canadian International Trade Tribunal recommends that Talk Science to Me Communications Inc. be (i) issued a supply arrangement for one third of the remaining work to be completed under the contract and (ii) compensated by an amount equal to the profit that it would reasonably have earned, had it been awarded one third of the work relating to Solicitation No. 87055-14-0359 from the date of contract award to the date of the issuance of a new supply arrangement.

The Canadian International Trade Tribunal recommends that Talk Science to Me Communications Inc. and the Canadian Nuclear Safety Commission negotiate the amount of compensation for lost profit and, within 60 days of the date of this determination, report back to the Canadian International Trade Tribunal on the outcome.

Should the parties be unable to agree on the amount of compensation, Talk Science to Me Communications Inc. shall file with the Canadian International Trade Tribunal, within 70 days of the date of this determination, a submission on the issue of compensation. The Canadian Nuclear Safety Commission will then have 7 working days after the receipt of Talk Science to Me Communications Inc.’s submission to file a response. Talk Science to Me Communications Inc. will then have 5 working days after the receipt of the Canadian Nuclear Safety Commission’s reply submission to file additional comments. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of compensation.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Talk Science to Me Communications Inc. its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by the Canadian Nuclear Safety Commission. In accordance with the Procurement Costs Guideline, the Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,150. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, 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 award.

Ann Penner
Ann Penner
Presiding Member

Tribunal Member: Ann Penner, Presiding Member

Counsel for the Tribunal: Rebecca Marshall-Pritchard
Jessica Spina (student-at-law)

Complainant: Talk Science to Me Communications Inc.

Government Institution: Canadian Nuclear Safety Commission

Please address all communications to:

The Registrar
Canadian International Trade Tribunal Secretariat
333 Laurier Avenue West
15th Floor
Ottawa, Ontario  K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
E-mail: citt-tcce@tribunal.gc.ca

STATEMENT OF REASONS

1. On October 26, 2015, Talk Science to Me Communications Inc. (Talk Science to Me) 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 Proposal (RFP) (Solicitation No. 87055-14-0359) by the Canadian Nuclear Safety Commission (CNSC) for the provision of English writing and editing services.

SUMMARY OF THE COMPLAINT

2. Talk Science to Me alleged that the CNSC unfairly disqualified its proposal on the basis of criteria that were not included in the RFP. Specifically, Talk Science to Me complained that the CNSC improperly concluded that it did not meet two of the eight mandatory technical criteria, M2 and M8. Talk Science to Me maintained that it did in fact meet all the mandatory requirements included in the RFP. As a remedy, Talk Science to Me requested that its proposal be re-evaluated and that it be awarded bid preparation and complaint costs.

PROCUREMENT PROCESS

3. The CNSC issued the RFP on April 7, 2015. On May 15, 2015, the RFP was amended and the initial closing date was extended to May 22, 2015, on which date Talk Science to Me submitted its proposal.
4. During the question and answer period, Talk Science to Me and the CNSC had the following exchange in respect of M8:

a) If one of the bidder’s last three projects was performed for the CNSC, should one of the bidder’s letters of reference come from the CNSC?

. . . 

a) Not if there is a direct link to the CNSC staff or evaluators involved with this bid solicitation. If they were to come from CNSC staff not linked to this procurement, then yes.^[2]

[Underlining in original]

5. On September 3, 2015, the CNSC informed Talk Science to Me that its proposal was unsuccessful, as it had not met the mandatory technical criteria of the RFP. It also informed Talk Science to Me that contracts had been awarded to Ascribe Marketing Communications Inc. and Stiff Inc.
6. On September 4, 2015, Talk Science to Me contacted the CNSC by e-mail to seek clarification regarding the reasons for which its proposal had been deemed non-compliant.
7. On October 13, 2015, the parties held a debriefing via telephone.
8. On October 26, 2015, Talk Science to Me filed its complaint with the Tribunal.
9. On October 29, 2015, 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.^[3]
10. On November 23, 2015, the CNSC filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules.^[4] On December 7, 2015, Talk Science to Me filed its comments on the GIR.
11. 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.

POSITIONS OF PARTIES

Talk Science to Me

12. Talk Science to Me submitted that there were no reasonable grounds for declaring its proposal non‑compliant. It asserted that the CNSC’s reasons for disqualifying its proposal were based on the use of undisclosed evaluation criteria.
13. In particular, Talk Science to Me contended that it provided four full-time professional editors in its response to M2 and thus met the requirements of the RFP. Moreover, Talk Science to Me objected to the CNSC’s statement that its proposal was non-compliant based on the terms of employment of its editors, their education and their experience. In its view, the RFP did not specify that certain types of education, experience or terms of employment were required for the proposed “full-time professional editors”.
14. In addition, Talk Science to Me maintained that it met M8, as it had provided reference letters from its three most recent Government of Canada clients. It asserted that, as required by the terms of the solicitation, it had submitted letters of reference for projects that it completed as opposed to those projects that members of its staff may have completed in their own capacity as independent agents. Talk Science to Me contended also that the terms of the solicitation were ambiguous and did not specify a time frame for the required reference letters.

CNSC

15. The CNSC submitted that Talk Science to Me’s proposal did not comply with M2, as it did not demonstrate that it had three or more “. . . full-time professional editor resources . . . .” In particular, two of the four proposed editors were deemed not to be professional editors for the purposes of the RFP, and only one of the four was assessed as being a full-time resource for Talk Science to Me.
16. The CNSC argued that Talk Science to Me’s proposal was also non-compliant with M8, as the CNSC contended that it did not provide reference letters for the projects that it had most recently completed for the Government of Canada. In particular, the CNSC noted uncertainty in the timeline of projects completed and pointed to projects listed for mandatory technical criterion M1 that were more recent than those for which reference letters were provided in M8.
17. As Talk Science to Me’s proposal was deemed not to have met the requirements in respect of M2 and M8, the CNSC submitted that it was not required to continue to the technical evaluation of the proposal.

RELEVANT PROVISIONS OF THE RFP

18. The RFP set out the following objectives in Annex A to the RFP:

2. Objectives

The CNSC requires the services of up to three (3) external Contractors to provide English writing and editing services to assist on a variety of projects on demand when volumes and/or urgent timeframes cannot be met by internal staff.

19. In this context, Part 1 of the RFP set out the following requirement for multiple contracts and indicated the contract period and estimated budget:

6. Multiple Contracts

CNSC will establish up to 3 contracts for the general English writing and editing services as defined in Annex A – Statement of Work, on an as-needed basis, and subject to the terms and conditions stipulated in this bid solicitation.

For the period of the contact (from Contract Award to March 31, 2018), the total estimated budget for all contracts awarded as a result of this bid solicitation is $250,000 Canadian Dollars (CAD) (Applicable Taxes are extra).

20. The RFP set out mandatory technical evaluation criteria in Attachment 1 to Part 4. As noted above, M2 and M8 are at issue. They provide as follows:

No.	Mandatory technical criteria	. . .
. . .	. . .
M2	The bidder must demonstrate that the firm has 3 or more full-time professional editor resources to work on writing and editing projects.
. . .	. . .
M8	The bidder must provide 3 (no more no less) written client letters of references for the last 3 projects they completed for the Government of Canada to validate performance on similar work as described in the Statement of Work. All client letters of reference must include answers to the following 4 questions: 1) Were you satisfied with the quality of the bidder’s projects? 2) Were the projects delivered on time and on budget? 3) Were you satisfied with the bidder’s administration of the contracts and invoicing? 4) Would you use their services for future requirements? The references will be evaluated under Section 2, Point-Rated Technical Criteria R6.

TRIBUNAL’S ANALYSIS

21. 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. 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. 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 North American Free Trade Agreement,^[5] the Agreement on Internal Trade,^[6] the Agreement on Government Procurement,^[7] the Canada-Chile Free Trade Agreement,^[8] the Canada-Peru Free Trade Agreement,^[9] the Canada-Columbia Free Trade Agreement,^[10] the Canada-Panama Free Trade Agreement,^[11] the Canada-Honduras Free Trade Agreement^[12] and the Canada-Korea Free Trade Agreement.^[13]
22. The trade agreements require that a procuring entity provide potential suppliers with all the information necessary to permit them to submit responsive tenders, including the criteria which will be used for awarding the contract.^[14] They also stipulate that, to be considered for contract award, a tender must conform to the essential requirements set out in the tender documentation and require that procuring entities award contracts in accordance with the criteria and essential requirements specified in the tender documentation.^[15] Moreover, the trade agreements prohibit all forms of discrimination in tendering procedures, either generally or through the use of undisclosed criteria.^[16]
23. The question before the Tribunal, then, is whether the CNSC breached any of the relevant trade agreements when it determined that Talk Science to Me’s proposal was non-compliant with M2 and M8.

Standard of Review

24. It is well established that, when considering the evaluation of a proposal conducted by a government institution, the Tribunal must look to whether the evaluation in issue was reasonable. As set out by the Tribunal in a previous case, “[a government institution’s] determination would be considered reasonable if it was supported by a tenable explanation, regardless of whether or not the Tribunal itself found that explanation compelling.”^[17]
25. As it has stated previously, the Tribunal will not substitute its judgment for that of the evaluators, unless those evaluators “. . . have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a proposal, 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.”^[18]
26. Moreover, the Tribunal has been very clear that bidders bear the responsibility of demonstrating that their proposals are compliant with all mandatory requirements. In other words, bidders must “connect the dots” by specifically and completely describing how their proposals comply with all the mandatory requirements of a solicitation.^[19]

Did the CNSC Fail to Properly Evaluate M2 and M8 in Talk Science to Me’s Proposal?

27. In this case, Talk Science to Me alleged that the CNSC did not conduct the procurement process in accordance with the above principles. Instead, Talk Science to Me argued that the CNSC ignored information provided in its proposal and introduced undisclosed evaluation criteria when conducting its evaluation, specifically in respect of M2 and M8.
28. The Tribunal agrees. It is clear from the CNSC’s submissions and the debriefing with Talk Science to Me that the CNSC introduced undisclosed evaluation criteria in respect of M2 and M8 and that it unfairly excluded Talk Science to Me from further consideration in the procurement.

M2: Full-time Professional Editing Resources

29. Specifically, in respect of M2, the RFP required that a bidder demonstrate it has three or more full‑time professional editor resources. Talk Science to Me provided the names of four full-time editing resources.
30. The CNSC rejected the proposed editors for three reasons: (i) the editors were not employees of the bidding firm but rather contractors; (ii) the editors did not meet the professional requirements; and (iii) the editors were not engaged in that activity full-time. These three reasons will be evaluated in turn.
31. As to the first reason, there was no reference in the RFP of a requisite employer-employee relationship. In fact, section 4.1.2 of Part 5 of the RFP provides as follows:

If the bidder has proposed any individual who is not an employee of the bidder, the bidder certifies that it has the permission from that individual to propose his/her services in relation to the work to be performed and to submit his/her résumé to the CNSC. The bidder must, upon request from the contracting authority, provide a written confirmation, signed by the individual, of the permission given to the bidder and of his/her availability.

32. The Tribunal finds this compelling. This section of the RFP specifically contemplates the proposal of resources that are not employees of the bidder. Talk Science to Me partnered with an independent contractor so that it would have enough resources to meet the bid requirements. There is nothing in the RFP that would render such an arrangement ineligible for contract award in this case.
33. In regard to the second reason, the Tribunal notes that the RFP did not require any professional qualifications, as alleged by the CNSC. In its debriefing with Talk Science to Me, the CNSC maintained that the term “professional editor resources” is clear in the RFP and that editors were expected to have certain education credentials, such as a journalism degree or accreditation, such as that offered by the Editors’ Association of Canada to be considered “professional”.
34. Talk Science to Me argued that all four editors proposed by Talk Science to Me should have been considered properly qualified and full-time professional editors notwithstanding the CNSC’s claim that it provided only two. The Tribunal agrees with Talk Science to Me. The CNSC appears to have formed its own standard as to what was acceptable in terms of education and experience of the editors, by way of undisclosed criteria in the solicitation. No educational background or occupational certification for proposed editors was specified in the RFP. If the CNSC had wanted the editors to have specific education or certifications, those specific qualifications should have been explicitly noted in the RFP.
35. As for the third reason, the CNSC disqualified certain editors proposed by Talk Science to Me because it determined that they may not be engaged in editing services full-time, given that some of the editors were also engaged in marketing activities for Talk Science to Me.^[20] In response, Talk Science to Me argued that this was an admission by the CNSC that it used undisclosed criteria in assessing its proposal. The Tribunal agrees. The RFP did not specify what percentage of time in an editor’s day must be spent on editing versus ancillary duties; as such, the Tribunal does not consider the CNSC’s interpretation of M2 to be reasonable in this regard.

M8: Letters of Reference

36. The Tribunal is of the view that the language used in M8 is ambiguous. It requires “the bidder” to provide reference letters for the last three projects that it completed for the Government of Canada. This is narrower language than what was set out in other provisions of the RFP, such as the language used in M1 which was “. . . the firm or its staff . . . .”
37. The Tribunal notes that, for M8, Talk Science to Me submitted references for the last three projects that it completed for the Government of Canada. However, in respect of M1 (which is not at issue in this complaint), Talk Science to Me submitted samples of work that its independent contractor had completed for the Government of Canada. While these projects were more recent than those submitted in regard to M8, they had been undertaken independently by the contractor and outside of the relationship with Talk Science to Me. The CNSC argued that Talk Science to Me submitted more recent projects, such as those submitted under M1, but never accounted for the discrepancy.
38. The Tribunal notes that Talk Science to Me sought clarification as to whether, if one of its last three projects was with the CNSC, it could acquire a reference letter from the CNSC. The CNSC responded that it could not “. . . if there is a direct link to the CNSC staff or evaluators involved with this bid solicitation.” Talk Science to Me therefore did not include references for its recent projects for the CNSC. In addition, in response to another bidder on this issue, the CSNC responded that, “[t]o ensure fairness and integrity for all bidders in the process, references from the CNSC will not be accepted to meet this requirement.”^[21]
39. Therefore, although Talk Science to Me had completed more recent work, it could not submit it because it had been done for the CNSC and that work was therefore explicitly excluded from consideration. The language used in M8 is narrower, in that it only references “the bidder” and Talk Science to Me argued that it erred on the side of caution by submitting reference letters for the most recent projects that the firm itself had completed for the Government of Canada. The Tribunal finds the actions of Talk Science to Me reasonable in this regard.
40. In considering the mandatory technical specifications together with the responses provided by Talk Science to Me in its proposal, the Tribunal finds that Talk Science to Me specifically met and described how its proposal would comply with the mandatory technical specifications at issue. Therefore, the Tribunal finds that the CNSC’s decision was unfair and unreasonable in the circumstances.
41. In light of the foregoing, the Tribunal determines that Talk Science to Me’s complaint is valid.

Remedies and Costs

Remedy

42. Having found the complaint to be valid, the Tribunal must now recommend the appropriate remedy.
43. In determining the appropriate remedy, the Tribunal must consider all the circumstances relevant to the procurement, as set out in subsection 30.15(3) of the CITT Act. This includes taking into account the seriousness of any deficiency in the procurement process, the degree to which the complainant was prejudiced, the degree to which the integrity and efficiency of the competitive procurement system were prejudiced, and whether the parties acted in good faith.
44. The Tribunal considers that not evaluating a proposal in accordance with the criteria provided in the RFP represents a serious deficiency in the procurement process. Bidders need to rely on the prescribed evaluation criteria to formulate their proposals. If they are not being informed of all the “rules of the game”, bidders are unable to optimize their efforts to be the successful bidder. The Tribunal believes that such a serious deficiency in evaluation prejudices the integrity and efficiency of the competitive procurement system.
45. The Tribunal notes that there was no evidence that the technical evaluators were not acting in good faith when they conducted their evaluations. Therefore, it recommends that the proposal submitted by Talk Science to Me be re-evaluated in accordance with the provisions of the RFP, with the direction that the CNSC evaluators re-consider Talk Science to Me’s responses to M2 and M8. This re-evaluation should be completed within 30 days of the date on which these reasons are issued.

Costs

46. The Tribunal awards Talk Science to Me its reasonable costs incurred in preparing and proceeding with the complaint.
47. In determining the amount of the cost award for this complaint case, the Tribunal considered its Procurement Costs Guideline (the Guideline), which contemplates classification of the level of complexity of cases on the basis of three criteria: the complexity of the procurement, the complexity of the complaint and the complexity of the complaint proceedings.
48. The Tribunal’s preliminary indication is that this complaint case has a complexity level corresponding to the lowest level of complexity referred to in Annex A of the Guideline (Level 1). The complexity of the procurement was low, as it involved the provision of one type of service. The Tribunal finds that the complexity of the complaint was low, as the issues were straightforward and dealt with whether the CNSC properly evaluated Talk Science to Me’s proposal against two mandatory criteria. Finally, the complexity of the proceedings was low, as the issues were resolved by the parties through documentary evidence and written representations, and a hearing was not necessary.
49. Accordingly, as contemplated by the Guideline, the Tribunal’s preliminary indication of the amount of the cost award is $1,150.

DETERMINATION OF THE TRIBUNAL

50. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is valid.
51. Pursuant to subsections 30.15(2) and (3) of the CITT Act, the Tribunal recommends, as a remedy, that the CNSC re-evaluate the proposal submitted by Talk Science to Me within 30 days of the issuance of the reasons for this determination, in accordance with the applicable trade agreements, for the requirement that is the subject of this complaint.
52. If, as a result of this re-evaluation, Talk Science to Me’s proposal is one of the three highest-rated proposals in accordance with the evaluation process provided in the solicitation, Tribunal recommends that Talk Science to Me be (i) issued a supply arrangement for one third of the remaining work to be completed under the contract and (ii) compensated by an amount equal to the profit that it would reasonably have earned, had it been awarded one third of the work relating to Solicitation No. 87055-14-0359 from the date of contract award to the date of the issuance of a new supply arrangement.
53. The Tribunal recommends that Talk Science to Me and the CNSC negotiate the amount of compensation for lost profit and, within 60 days of the date of this determination, report back to the Tribunal on the outcome.
54. Should the parties be unable to agree on the amount of compensation, Talk Science to Me shall file with the Tribunal, within 70 days of the date of this determination, a submission on the issue of compensation. The CNSC will then have 7 working days after the receipt of Talk Science to Me’s submission to file a response. Talk Science to Me will then have 5 working days after the receipt of the CNSC’s reply submission to file additional comments. The Tribunal reserves jurisdiction to establish the final amount of compensation.
55. Pursuant to section 30.16 of the CITT Act, the Tribunal awards Talk Science to Me its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by the CNSC. In accordance with the Guideline, the Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,150. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, 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 award.