File No. PR-2019-071 Nations Translation Group Inc. v. Department of Public Works and Government Services

Determination issued Tuesday, June 23, 2020 Reasons issued Monday, July 6, 2020

 

TABLE OF CONTENTS

DETERMINATION  i

STATEMENT OF REASONS  1

SUMMARY OF THE COMPLAINT  1

PROCEDURAL BACKGROUND  1

The RFSO process  1

Complaint proceedings  3

PRELIMINARY MATTERS  3

Grounds of complaint not accepted for inquiry  3

New ground of complaint: Evaluators’ qualifications  7

ANALYSIS: GROUND OF COMPLAINT ACCEPTED FOR INQUIRY  9

English-to-French translation: Spelling vs. grammar error  11

French-to-English translation: Translation error  13

Conclusion  15

COSTS  15

DECISION  16

 

IN THE MATTER OF a complaint filed by Nations Translation Group 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
NATIONS TRANSLATION GROUP INC.	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 not valid.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards the Department of Public Works and Government Services its reasonable costs incurred in responding to the complaint, which costs are to be paid by Nations Translation Group Inc. 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 level of complexity or 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 cost award.

The statement of reasons will be issued at a later date.

 

Tribunal Panel:	Randolph W. Heggart, Presiding Member
Support Staff:	Helen Byon, Lead Counsel Heidi Lee, Counsel
Complainant:	Nations Translation Group Inc.
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Roy Chamoun Benjamin Hiemstra

Please address all communications to:

The Registrar
Secretariat to the Canadian International Trade Tribunal
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]  This inquiry concerns a complaint filed by Nations Translation Group Inc. (NTGI) [1] regarding a Request for Standing Offer (solicitation No. 5P004-190022/A) (the RFSO) issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Parks Canada Agency (PCA) on September 18, 2019, for the provision of translation services and related editing and updating services.

[2]  The Tribunal accepted the complaint for inquiry in part, pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act [2] and in accordance with the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations. [3]

[3]  The Tribunal conducted an inquiry into the validity of the complaint as required by sections 30.13 to 30.15 of the Act. For the reasons that follow, the Tribunal finds that the complaint is not valid.

SUMMARY OF THE COMPLAINT

[4]  The RFSO required bidders to complete a translation exam, which included a French-to-English and an English-to-French translation of certain text that was provided by PWGSC. In order for a bid to be responsive, the bidder was required to achieve a minimum score of 45 points out of a maximum 50 points with respect to the translation exam.

[5]  In its complaint, NTGI claimed that the evaluators incorrectly scored two errors on its translation exam, resulting in a total score that was below the minimum threshold for the bid to be responsive.

[6]  NTGI also raised two additional grounds of complaint which were not accepted for inquiry.

[7]  As remedy, NTGI requested that the Tribunal recommend that a new solicitation be issued, the bids be re-evaluated, the standing offers awarded by PWGSC be terminated, or that the standing offer be awarded to NTGI. NTGI also sought its complaint costs.

PROCEDURAL BACKGROUND

The RFSO process

[8]  The RFSO was issued on September 18, 2019, and was amended on October 18, 2019, October 22, 2019 and October 30, 2019. [4] The solicitation closed on November 8, 2019. [5]

[9]  PWGSC issued the translation exam on November 18, 2019. NTGI submitted its translation exam on November 19, 2019. [6]

[10]  The translation exam was initially evaluated by one evaluator, who gave NTGI a score of 43 out of 50 (Evaluator #1). ^[7] This evaluation was completed on November 28, 2019. ^[8] The exam was subsequently evaluated by a second evaluator (Evaluator #2). This evaluation was completed on January 20, 2020, and resulted in NTGI receiving a passing score of 46 points out of 50. ^[9] On consensus, the evaluators determined that NTGI scored 43 points out of 50, which was below the minimum score required for a responsive bid. ^[10]

[11]  On February 28, 2020, PWGSC advised NTGI that it had been selected for the standing offer. [11] Two days later, on March 2, 2020, PWGSC posted information regarding the award on its website. [12]

[12]  However, on March 4, 2020, PWGSC advised NTGI that it had been awarded the standing offer in error and, as a result, NTGI’s standing offer would be set aside. [13] PWGSC indicated that the evaluating team had determined that NTGI’s bid did not achieve a passing score on the translation exam; it had achieved a score of 43 out of 50 maximum points. Attached to PWGSC’s correspondence was a copy of the two individual evaluators’ notes for NTGI’s exam as well as the consensus evaluation notes from both evaluators. In addition, PWGSC explained that the standing offer was mistakenly awarded on the basis of the evaluation notes of a single evaluator, rather than the consensus evaluation of both evaluators. [14]  

[13]  Two days later, on March 6, 2020, NTGI requested an in-person debrief to review the evaluation of its bid. NTGI indicated that it had an independent third party who it alleged to be at a doctorate level in linguistics, to review PWGSC’s evaluation notes. According to NTGI, the independent third party noted inconsistencies and errors in the scoring and explanation of same, and was not in agreement with how the scoring was applied. [15]

[14]  On March 10, 2020, NTGI sent PWGSC correspondence outlining its objection to the solicitation process. In this letter NTGI alleged that PWGSC undertook a second evaluation of the exam after the standing offer was awarded and that it was “subjective and directly contradicted the first evaluation”. Additionally, NTGI advised PWGSC that it had its manager of official languages and a third-party procurement expert assess the evaluation. NTGI’s comments on each evaluated error on the translation exam were noted in a grid enclosed with the letter to PWGSC. [16]

[15]  The in-person debrief took place on March 12, 2020. [17]

Complaint proceedings

[16]  On March 25, 2020, NTGI filed its complaint with the Tribunal.

[17]  The complaint was accepted in part for inquiry on April 1, 2020, and the parties were informed of the Tribunal’s decision on April 2 and 3, 2020. The Tribunal limited its inquiry to the allegation that NTGI’s translation exam was evaluated incorrectly. The Tribunal did not inquire into the validity of a second evaluation that allegedly took place after the standing offer was awarded to NTGI and alleged deficiencies in respect of the in-person debrief. The Tribunal found no reasonable indication of a breach of the trade agreements with respect to these other grounds of complaint. At that time, the Tribunal indicated that it would provide complete reasons for not accepting these grounds of complaint at the conclusion of the inquiry. Those reasons are set out below.

[18]  On May 8, 2020, PWGSC filed its Government Institution Report (GIR). NTGI submitted its comments on the GIR on May 20, 2020. In its comments, NTGI requested PWGSC provide information concerning the qualifications and experience of the two evaluators. [18]

[19]  On May 27, 2020, PWGSC requested permission to respond to NTGI’s comments on the GIR on the basis that NTGI raised a new allegation by submitting that the evaluators were not qualified to evaluate the translation exams. ^[19] PWGSC included in its correspondence to the Tribunal submissions in response to NTGI as well as confidential and public versions of the evaluators’ résumés.

[20]  On May 28 2020, the Tribunal accepted PWGSC’s submissions onto the record.

[21]  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 ruled on the complaint based on the written record.

PRELIMINARY MATTERS

Grounds of complaint not accepted for inquiry

[22]  As noted above, two grounds of complaint raised by NTGI were not accepted for inquiry. The first ground of complaint was with respect to the validity of one of the evaluations as further described below. The other ground of complaint concerned the debrief provided by PWGSC on March 12, 2020. As indicated in the Tribunal’s letters of April 2 and 3, 2020, the Tribunal found no reasonable indication of a breach of the relevant provisions of the trade agreements and therefore did not inquire into this ground of complaint. The following are the Tribunal’s reasons for that decision.

[23]  Pursuant to paragraph 7(1)(c) of the Regulations, the Tribunal may conduct an inquiry if all of the other conditions set out in subsection 7(1) are met, and the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreement. In this regard, the Tribunal has previously stated that it must be satisfied that the allegations put forward have a factual, tangible foundation, such that it can conclude the complaint discloses a reasonable indication of a breach. ^[20] The Tribunal requires more than mere allegations before it will proceed to inquire into a specific ground of complaint. [21]

Validity of the second evaluation

[24]  NTGI alleged in its complaint that a second evaluation, which resulted in a failing score, was conducted after it was awarded the standing offer. This allegation was made by NTGI prior to PWGSC’s submission of evidence in the GIR, with respect to the time frame of the evaluations conducted by Evaluators #1 and #2, as described above.

[25]  To support its position, NTGI referred to the fact that there was a two-day gap between awarding the standing offer and posting the information on its website, and the letter from PWGSC cancelling the standing offer. In other words, NTGI alleged that a second evaluator was brought in between March 2, 2020, and March 4, 2020. NTGI also alleged that, based on the timing of events, PWGSC may have engaged in bid tampering. Related to this line of argument was NTGI’s claim that the scores of the first evaluator were sufficient on its own and should stand without including the scores of the second evaluator.

[26]  The evidence submitted with the complaint indicated that the evaluations took place prior to the awarding of the standing offer. Under the heading “Here is what we learned” in NTGI’s debrief meeting notes, NTGI noted that:

• - The evaluators conducted their evaluations separately then met to come to a consensus. All of these steps were done before contract award.

• - The evaluators did not know the company names for the tests they were evaluating. [22]

[27]  The Tribunal found that these notes reflected PWGSC’s confirmation that the evaluations were conducted prior to the awarding of the standing offer. NTGI provided no evidence that contradicted PWGSC’s statements in this regard. On this basis, the Tribunal also found that there was no reason to exclude the score of the “second” evaluation. Moreover, in the Tribunal’s view, the RFSO did not limit the evaluation to one evaluator such that a second evaluator’s score should be excluded. The RFSO clearly contemplated the possibility that more than one evaluator could evaluate the exams. Paragraph 4.1.1.3(a) stated that the translated text “will be evaluated by one or more specialists on the evaluation team.” ^[23]

[28]  Furthermore, the Tribunal did not find that PWGSC’s decision to set aside the standing offer upon discovering that the consensus evaluation was not initially accounted for violated the terms of the RFSO. According to paragraph 2(e) of clause 2005 04 (2017-06-21) of the General Conditions, incorporated by reference in section 7.3.1 of the RFSO, PWGSC may set aside the standing offer at any time. ^[24] Moreover, there were no terms in the RFSO that would limit PWGSC’s ability to do so, including the correction of an error in the evaluation process. On the contrary, PWGSC’s cancellation of the standing offer was consistent with the Tribunal’s previous statements that upon the discovery of errors in the evaluation process, a contracting authority must take appropriate steps to correct such errors in keeping with the terms of the solicitation and in the manner that preserves the integrity of the competitive procurement process. [25]

[29]  For the reasons above, the Tribunal therefore did not find that NTGI’s allegations concerning the second evaluation raised a reasonable indication of breach of the trade agreements and therefore did not accept this ground of complaint for inquiry.

The debrief

[30]  NTGI submitted that at the in-person debrief, it presented to PWGSC its views on the discrepancies and errors applied to the scoring of its exams. PWGSC denied its requests to retender the solicitation or to have an independent third party review the evaluations. NTGI’s debrief meeting notes indicate that it was provided information regarding PWGSC’s error in respect of the evaluation process, such as the fact that it was caused by “human error” and that another bidder also had its standing offer cancelled. PWGSC also indicated that it was still considering how to proceed with the solicitation including that no call-ups would be issued against the remaining standing offer. [26]  

[31]  In respect of the debrief, NTGI took particular issue with the fact that (1) the evaluators were not present at the debrief to respond to NTGI’s concerns regarding the “errors in scoring”; [27] (2) PWGSC declined to provide the qualifications and experience of the evaluators; (3) PWGSC declined to provide the name of the Fairness Monitor; and (4) NTGI was not given the date and time the evaluations took place.  

[32]  Pursuant to section 1.2.2 of the RFSO, the solicitation was subject to the requirements of the Canadian Free Trade Agreement (CFTA). Article 516(1) of the CFTA requires the procuring entity to, subject to Article 517, “on request, provide an unsuccessful bidder an explanation of the reasons why the procuring entity did not select its tender.” [28] In cases addressing a similar provision under the North American Free Trade Agreement Article 1015(6), [29] the Tribunal has stated that such an obligation is to provide transparency as to the reasons for not selecting a bid to enable the unsuccessful bidder to determine its rights in view of the requirements set out in the trade agreement. [30] Moreover, the Tribunal has stated that the proactive disclosure of contemporaneous documentary evidence pertaining to the bidder’s own bid “is the simplest and best method to ensure transparency and provide an appropriate debriefing”. [31] In the case that consensus scoring is used, evidence regarding the considerations of each individual evaluator who contributed to the establishment of the consensus evaluation should be disclosed. While the Tribunal notes that there are some differences between the wording of the relevant provisions in the CFTA and NAFTA, for instance, Article 1015(6) of NAFTA includes a more specific reference to “pertinent information” concerning the reasons for not selecting a tender, the Tribunal finds that the general principles discussed above are applicable to PWGSC’s obligations under the CFTA.

[33]  In the Tribunal’s view, there was no reasonable indication that PWGSC violated its obligation under Article 516(1) of the CFTA. At the time that PWGSC advised NTGI of its decision to cancel the standing offer, PWGSC provided NTGI copies of the consensus evaluation notes as well as each individual evaluator that contributed to the consensus evaluation. Both the consensus and individual evaluator notes identified the text that was considered to be erroneously translated and indicated the amount of points that were deducted. Additionally, for each error that was identified, the evaluators’ notes clearly indicated the nature of the error (e.g. omission, grammar, terminology and translation) and it could be seen clearly from the consensus evaluation, the underlying rationale for the error. For instance, with respect to the omission error, the evaluators indicated the word that was missing from the translation and with respect to the terminology error, the evaluators described the inaccuracy of the official title that was used. [32]

[34]  The Tribunal noted that there were differences between how each individual evaluator scored the exam. For instance, only one evaluator, and not both, determined that there was an error in respect of the words “Programme”, “salopette”, “surintendante” and “Écosystèmes”. From among these, only “salopette” and “surintendante” were reflected in the consensus evaluation as errors. Both evaluators determined that “l’Histoire” and “single” had errors, but they differed in their reasons. For instance, Evaluator #1 found that “l’Histoire” was a grammatical error because it was not capitalized, while Evaluator #2 found that the error was a spelling error. On consensus, the evaluators treated “l’Histoire” as a grammar error due to the capitalization. With respect to the word “single”, both evaluators assessed it as an error; however, Evaluator #1 treated it as a translation error, because it did not properly translate the French word “unique” which it noted had the meaning of “one of a kind”. On the other hand, Evaluator #2 assessed the error as one of terminology. On consensus, the evaluators assessed the error as one of translation based on the reason provided by Evaluator #1. [33]  

[35]  The Tribunal has previously stated that the final consensus evaluation and scores will not necessarily reflect every evaluator’s considerations, but that individual’s evaluations should logically underlie the consensus evaluation. [34] Moreover, it is not unusual or unexpected that all evaluators may not, at the outset, agree on all points. The necessary consideration is whether the evaluators were able to get to a consensus result fairly, having regard to the obligations set out by the trade agreements. [35]  In the Tribunal’s view, although the consensus evaluation does not mirror all of the individual evaluators’ considerations, the reasons for the scoring of errors found in the exam noted in the consensus evaluation were clearly reflected in the individual evaluations.

[36]  In the Tribunal’s view, NTGI’s comments contained in its letter to PWGSC on March 10, 2020, with respect to each evaluated error on the exam, demonstrated its understanding of the reasons underlying the consensus evaluation; in fact, NTGI’s comments expressed disagreement with the rationale for the evaluators’ scores. Accordingly, the Tribunal found that PWGSC disclosed sufficient information to permit NTGI to determine its rights under the CFTA and to initiate its complaint. To meet its obligation under the CFTA, PWGSC was not required to respond to NTGI’s views on how the errors made in the translation ought to have been scored. This, in the Tribunal’s view, was outside the scope of the obligation in Article 516(1).

[37]  As NTGI was in possession of the reasons underlying its unsuccessful bid, the Tribunal did not agree that the evaluators were required to be present at the debrief meeting or that PWGSC was required to provide the evaluators’ qualifications or the Fairness Monitor’s name. In terms of the qualifications of the evaluators more specifically, the Tribunal has previously stated that, in the context of Article 1015(6)(b) of NAFTA, procuring entities are not required to disclose the qualifications or identities of evaluators, unless there is a reasonable basis for doing so, for example, a reasonable apprehension of bias. [36] In this case, other than the allegation that the exam was incorrectly scored, no evidence was provided by NTGI indicating that the evaluators were not qualified to conduct the evaluation on a reasonable basis. As such, the Tribunal found that NTGI did not provide PWGSC with a reasonable basis for the request to disclose such information and, therefore, PWGSC acted reasonably in not providing the information.

[38]  With respect to the date and time the evaluations took place, as discussed above, PWGSC had indicated at the debrief meeting that the evaluations were completed prior to awarding the standing offer. Moreover, PWGSC was obligated to correct errors in the evaluation of the bids in keeping with the terms of the solicitation, whether they were discovered before or after the awarding of the standing offer. With these considerations in mind, the Tribunal was not persuaded that PWGSC was required to disclose the date and time that the evaluations were conducted at the meeting.  

[39]  For the reasons above, the Tribunal did not find that NTGI’s allegations with respect to the debrief disclosed any substantive deficiencies that would indicate a breach of PWGSC’s obligations under the trade agreements.

New ground of complaint: Evaluators’ qualifications

[40]  In its comments on the GIR, NTGI submitted that the evaluators lacked knowledge with respect to how to properly apply the correction scheme set out in the RFSO, noting the inconsistencies between the two individual evaluations. NTGI argued that translation tests must be evaluated by language or linguistic specialists, trained in their field, in order to ensure a fair and consistent scoring. NTGI also referred to the job title of one of the evaluators and claimed that it did not indicate the evaluator was a qualified language specialist. [37] On this basis, NTGI requested that PWGSC disclose the qualifications and experience of both evaluators.

[41]  Related to the issue of the qualifications of the evaluators, based on concerns expressed in email exchanges between PWGSC and PCA, which the Tribunal notes appear to have occurred prior to the consensus evaluation, NTGI submitted that PWGSC should have addressed issues with respect to “test marking procedures” prior to awarding the standing offer. To the extent that PWGSC did not have qualified evaluators, NTGI argued that the exams should not have been subject to a pass-or-fail requirement. [38]

[42]  For its part, PWGSC submitted that NTGI’s allegation and arguments regarding the qualifications of the evaluators constituted a new ground of complaint, which was not previously raised, and that they were not relevant to the present inquiry. PWGSC submitted that NTGI did not previously claim that the evaluators were not qualified to evaluate the exams. Rather, NTGI took issue with the fact that the evaluators were not present at the debrief meeting and that, at that time, it was not provided the requested information regarding the evaluators’ qualifications.  

[43]  In this regard, the Tribunal agrees with PWGSC and finds that NTGI’s allegations regarding the qualifications of both evaluators amount to a new ground of complaint as it was not raised previously. In this regard, the Tribunal has stated that complainants must fully and completely articulate the grounds of complaint at the time that the complaint is filed. This requirement is essential for the Tribunal to frame the subject matter of its inquiry, as the consideration of a new ground of complaint would constitute a substantive amendment to the complaint, in circumvention of section 7 of the Regulations, which directs the Tribunal to consider whether certain conditions are met before accepting to inquire into a particular ground of complaint. [39]

[44]  The Tribunal notes that insofar as the issue of the evaluators’ qualifications constitutes a new ground of complaint, it was not raised in accordance with the time frame set out in section 6 of the Regulations. NTGI became aware of the basis of its complaint regarding the evaluators’ qualifications on March 4, 2020, the day on which it received the evaluators’ notes and became aware of the inconsistencies between the evaluators’ scoring. Pursuant to section 6 of the Regulations, NTGI had 10 working days, i.e. until March 18, 2020, to either file a complaint with the Tribunal or raise an objection to PWGSC. NTGI did not file a complaint on the basis that the evaluators were not qualified within this time limit, and the Tribunal finds that it did not raise an objection to PWGSC specifically with respect to the qualifications of both evaluators for the purposes of subsection 6(2). [40] In this regard, the Tribunal notes that in the debrief meeting, NTGI only requested information regarding the evaluators’ qualifications and in its complaint, asserted that the scores of the first evaluator were sufficient. Accordingly, the Tribunal will not inquire into this new ground of complaint in the present inquiry and therefore will not consider the information submitted by PWGSC in respect of the evaluators’ qualifications.

ANALYSIS: GROUND OF COMPLAINT ACCEPTED FOR INQUIRY

[45]  Subsection 30.14(1) of the 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.

[46]  NTGI’s complaint with respect to whether the evaluation of its exam was unreasonable raises the issue of whether PWGSC may have breached Article 515(1) of the CFTA, which provides that a procuring entity shall award the contract “based solely on the evaluation criteria specified in the tender notices and tender documentation.” To the extent that PWGSC did not apply the published evaluation criteria in its assessment of NTGI’s exam, PWGSC would be in breach of this obligation. [41]

[47]  The relevant provisions of the RFSO are as follows:

4.1.1.1 Mandatory Technical Criteria (MTC)

The bid must meet the mandatory technical criteria specified below. . . .

Any bid which fails to meet the mandatory technical criteria will be declared non-responsive. Each mandatory technical criterion should be addressed separately.

All responses will be addressed as a Pass or Fail. Offers not meeting all mandatory requirements will be given no further consideration.

4.1.1.3 Exam and Description of Process

(a) Exam

. . . The text translated will be evaluated by one or more specialists on the evaluation team. In order to ensure fairness and transparency in the procurement process, this individual or these individuals will not know the Offeror’s name when they evaluate the translated text.

The correction scheme shown below will be used to correct the requested translation. The maximum score is 50 points. A minimum of 90% (45 points) is required in order for the offer to be deemed responsive.

Correction scheme for the exam

Spelling: Deduction of 1 point per error

Grammar: Deduction of 2 points per error

Terminology and official titles: Deduction of 1 point per error

Translation errors (e.g. Anglicisms, shifts in meaning, mistranslations, omissions, additions, redundancy, barbarism): Deduction of 2 points per error

Serious errors (e.g. nonsense, serious mistranslation, gibberish, unreadability, illogical passages): Deduction of 3 points per error

Style and syntax: Deduction of 1 point per error

Punctuation and typographical conventions: Deduction of 1 point per error

Formatting: Deduction of 1 point for each failure to comply with the formatting of the source texts

. . .

4.2.1 Basis of Selection – Minimum Point Rating

1.   To be declared responsive, an offer must: . . .

d.  achieve a passing mark of at least 90% on the translation exam to be distributed after the RFSO closing date. ^[42]

[48]  NTGI claimed that PWGSC incorrectly evaluated its translation exam, resulting in a score below the minimum threshold of 90 percent. As discussed below, NTGI challenged two out of the four errors identified on the consensus evaluation. First, NTGI disputed the evaluators’ assessment of the grammar error in the English-to-French translation (a two-point deduction), arguing that it should have been treated as a spelling error resulting in only a one-point deduction. Second, NTGI submitted that it should not have been deducted any points for the translation error (a two-point deduction) in the English-to-French translation, or alternatively, it should have been treated as a terminology error resulting in only a one-point deduction. Accordingly, NTGI submitted that it should be awarded a total score of 46 out of 50 maximum points (or, in the alternative, 45 out of 50).

[49]  When considering the manner in which bids are evaluated, it is well established that the Tribunal will apply the standard of reasonableness. [43] The Tribunal has previously indicated that a procuring entity’s evaluation would be considered reasonable if it is supported by a tenable explanation, regardless of whether or not the Tribunal itself finds that explanation compelling. [44] As the Supreme Court of Canada underlined in a different context, “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process.” [45] As a result, the Tribunal has repeatedly held 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. [46] The issue raised in NTGI’s complaint is whether the evaluators wrongly interpreted the scope of the correction scheme set out in section 4.1.1.3 of the RFSO, such that its assessment cannot be reasonable.

[50]  For the reasons that follow, the Tribunal finds that PWGSC’s evaluation of both errors was reasonable.

English-to-French translation: Spelling vs. grammar error

[51]  In the exam, NTGI translated the English phrase “Rediscovering history”, which appeared as a heading in the original text, as “Redécouvrir l’Histoire”. At issue is whether the incorrect capitalization of the letter “H” in “l’Histoire” is a grammar error as determined by the evaluators or a spelling error, as argued by NTGI.

[52]  According to PWGSC, it was reasonable for the evaluators to have determined that this was a grammar error. In support of its position, PWGSC referred to the Canadian Oxford Dictionary definition of “spelling”, which is as follows:

1.  The process or activity of writing or naming the letters of a word etc.
2.  The way a word is spelled.
3.  The ability to spell: her spelling was very poor. [47]

[53]  PWGSC submitted that based on the ordinary meaning of spelling, a spelling error occurs when the wrong letters are used to spell a word, or when correct letters are used in the wrong order. PWGSC argued that because NTGI used the correct letters in the correct order to spell “l’Histoire”, the error was not one of spelling.

[54]  PWGSC also submitted that the evaluators’ treatment of the error as one of grammar is supported by the dictionary definition of the word “grammar” as provided in the Canadian Oxford Dictionary:  

1.  The branch of language study or linguistics which deals with the means of showing the relationship between words in use, traditionally including morphology and syntax, and often phonology.

-  A body of forms and usages in a specified language: French grammar.

2.  A person’s manner of using grammatical forms; speech or writing judged as good or bad according to its conformity to rules of grammar. [48]

[55]  Based on the above, PWGSC submitted that a grammatical error can consist of a breach of the system of rules of grammar or of forms and usages in a specified language, which can include the relationship between the words in use. Accordingly, it was reasonable to find that a translation which breaches the accepted rule regarding the use of capital letters in titles in the French language is a grammar error, i.e. that only the first word of a title should be written with a capital letter, unless it is a word that must otherwise always be written with a capital letter. In this regard, the Tribunal notes that the fact that the word “l’Histoire” should not have been capitalized was not disputed by NTGI. This, in the Tribunal’s view confirms that, both parties accepted that it is a rule of the French language to not capitalize words in a title, other than the first word, and that there was no other reason for the word “histoire” to be capitalized in the context.

[56]  In its comments on the GIR, NTGI submitted definitions set out by the American Translators Association (ATA), which it described as being the “global leader” in setting translation and language standards and definitions. NTGI submitted the following definitions for a capitalization error and spelling/character error:

Capitalization: (C): A capitalization error occurs when the conventions of the target language concerning upper and lower case usage are not followed. NOTE: In the Framework grid, the C error is a sub-category of Spelling/Character (SP/CH) errors.

Spelling: (SP) / (Character (CH) for non-alphabetic languages): A spelling/character error occurs when a word or character in the translation is spelled/used incorrectly according to target-language conventions. A spelling/character error that causes confusion about the intended meaning is more serious and may be classified as a different type of error using the Flowchart and Framework. If a word has alternate acceptable spellings, the candidate should be consistent throughout the passage. NOTE: In applicable cases, the SP/CH error should be sub-categorized as C (Capitalization) or D (Diacritic); see explanations above. [49]

[57]  NTGI also submitted that since capitalization does not affect the structure of a sentence, and may not necessarily alter the meaning, incorrect capitalization would not be a grammar error. Grammar is constant, whereas capitalization is often subject to “house rules” or style guides.

[58]  In further support of its position, NTGI described grammar as being comprised of “several branches, including orthography, morphology, phonology, syntax” [emphasis added] and that spelling and capitalization fall under orthography. ^[50] While NTGI maintained that orthography is a branch of grammar, “when applying a marking scheme, an error that falls under the definition of orthography is a spelling error, or a capitalization error but not a grammatical error.” Based on the evidence on the record, the Tribunal does not find any indication that PWGSC intended to distinguish different branches of grammar in its correction scheme or more specifically, to carve out capitalization errors from the grammar category. 

[59]  Although the ATA definitions appear to support the treatment of a capitalization error as a subset of a spelling error, the Tribunal does not find this to be completely clear and unambiguous, in resolving the issue at hand, insofar as the definitions refer to conditions that are established through “target-language conventions”. In this regard, the Tribunal notes that PWGSC’s position distinguishes a grammar error as a breach of the system of rules of grammar or of forms and usages in a specified language. In addition, there is no evidence regarding the relevance of these rules to the translation exam that was administered under the RFSO. The RFSO did not include any reference to the ATA standards. Moreover, there is no evidence to suggest that these rules are, or inform, the translation standards in Canada. ^[51]

[60]  The Tribunal is therefore not persuaded that the evaluators’ treatment of a capitalization error as a grammar error, on the basis that the error in this instance was as a result of a failure to comply with an accepted rule in the French language regarding the capitalization of words used in a title, was unreasonable.  

French-to-English translation: Translation error

[61]  NTGI also challenged PWGSC’s evaluation of its translation of the French word “unique”, from the following text:

Concrètement, l’équipe du projet CoRe aquatique retire les anciennes billes de bois, démantèle les anciens barrages de drave et restaure les populations d’omble de fontaine afin de conserver leur patrimoine génétique unique. ^[52] (emphasis added)

[62]  NTGI translated the above sentence as follows:

In practical terms, the aquatic CoRe project team removes old logs, demolishes old logging dams and restores brook trout populations to preserve their single gene pool. ^[53] (emphasis added)

[63]  The evaluators assessed NTGI’s use of the word “single” as a translation error, on the basis that it did not properly translate the French word “unique”, which had the meaning of “one of a kind”. In the GIR, PWGSC submitted that NTGI’s translation shifted the meaning of the original text. In this regard, the Tribunal notes that the correction scheme includes shifts in meaning or a mistranslation in the category of translation errors.

[64]  NTGI essentially raised two arguments with respect to the translation error. First, NTGI submitted that the wording used in a report published on a Government of Canada website with respect to fish gene pools supported its translation. ^[54] Without further context, the French term “unique” could be translated as “one of a kind”, “single” or “unique”. Secondly, or in the alternative, NTGI submitted that the error was one of terminology. For the reasons below, the Tribunal does not find that either of these arguments warrants a finding that the evaluators’ assessment was unreasonable.

Qualitative meaning of the French term “unique” 

[65]  With reference to definitions of “unique” provided in French and bilingual dictionaries, ^[55] PWGSC submitted that the French term “unique” can have two potential meanings: (1) a quantitative meaning, in the sense of the word “single”, or (2) a qualitative meaning, in the sense of “one of a kind”. PWGSC submitted that the original text provided sufficient context for applying the qualitative meaning of the French word “unique”.

[66]  According to PWGSC, when used at the end of the phrase “afin de conserver leur patrimoine génétique”, the adjective “unique” had a qualitative meaning. The text described a program that sought to restore an entire population of fish (i.e. brook trout) in order to preserve a gene pool or genetic heritage that was considered one of a kind, unique or distinctive. The original text did not express the notion that the conservation program sought to restore an entire population of fish in order to preserve their “one” gene pool in the quantitative sense. PWGSC argued that if the quantitative sense had been intended, the term “unique” in the original text would have been redundant. PWGSC submitted that as an adjective, “single” conveyed a quantitative meaning, based on the definition of the word from the Canadian Oxford Dictionary. ^[56]  

[67]  After consideration of the original text and PWGSC’s explanation of the purpose of such text, the Tribunal agrees that in the context of the phrase, the French term “unique” had a qualitative meaning and the use of the word “single” for the translation shifted the meaning of the original text. The Tribunal finds, therefore, that the evaluators’ assessment of the translation error was reasonable.

Terminology error

[68]  While the Tribunal finds that the evaluators’ assessment of the translation error to be reasonable, it will nevertheless address NTGI’s arguments that the error was one of terminology.

[69]  In its comments on the GIR, NTGI provided the ATA’s definition of a “terminology error”. ^[57] As discussed above, the Tribunal is not persuaded that the ATA definitions are relevant to the correction of the translation exam. There is no indication that PWGSC intended that the ATA standards inform the application of the correction scheme set out in the RFSO.

[70]  NTGI also claimed that the evaluator who treated the error as a terminology error assumed that the French term “unique” had a quantitative meaning. The Tribunal is not persuaded by this argument. As discussed above, to the extent that the individual evaluators had initially differed in their treatment of the error, the evaluators, on consensus, agreed that the translation constituted a translation error.

[71]  NTGI also submitted that although “single” may not have been the preferred translation, absent further context in the original text, it was not incorrect. In this regard, NTGI noted that the original text did not indicate how the brook trout population was unique.

[72]  In the Tribunal’s view, PWGSC has established, as discussed above, that the French term “unique” had a qualitative meaning in the context of the original phrase and, as such, NTGI’s translation, which attributed a quantitative meaning to the original text, altered or shifted its meaning. Consequently, NTGI’s translation was not merely a terminology error as it did not convey the intended meaning of the original text. ^[58]  

Government of Canada Report

[73]  While NTGI did not make submissions with respect to the specific text from the report that its translator allegedly relied on, in this regard, PWGSC rejected its use on the basis that it was taken out of context and therefore not relevant. PWGSC also made submissions with respect to a sentence from the report that it assumed was relied on by NTGI’s translator noting that it was focused on another species, was unrelated to the notion of preserving a unique or one-of-a-kind genetic pool, and included other text (not present in the exam) that also informed the meaning of the French term “unique” used in the sentence. After considering these arguments, the Tribunal finds that the existence of the report, and NTGI’s reliance on it, does not diminish the reasonableness of the evaluators’ assessment of the translation error.

Conclusion

[74]  In the GIR, PWGSC sought costs in respect of the complaint. For the reasons above, the Tribunal finds that there is a tenable explanation for PWGSC’s scoring of the grammar error in the English-to-French translation and the translation error in the French-to-English translation. Accordingly, the Tribunal finds the evaluation to be reasonable and, therefore, conducted in accordance with the applicable trade agreement. Therefore, the Tribunal finds the complaint is not valid.  

COSTS

[75]  Pursuant to section 30.16 of the Act, the Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint, which costs are to be paid by NTGI. In accordance with the Procurement Costs Guideline (the Guideline), the Tribunal’s preliminary indication of the level of complexity in this case is Level 1. The procurement was for a single service and the proceedings were not overly complicated as there was no public hearing and no intervenors. Furthermore, the issues in this complaint were limited to the evaluation of only two errors in respect of NTGI’s translation exam. Accordingly, the Tribunal’s preliminary indication of the amount of the cost award is $1,150.

DECISION

[76]  Pursuant to subsection 30.14(2) of the Act, the Tribunal finds that the complaint is not valid.

[77]  Pursuant to section 30.16 of the Act, the Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint, which costs are to be paid by NTGI. 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 level of complexity or 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 cost award.