File No. PR-2019-072 RTG Protech Inc. v. Department of Public Works and Government Services

Determination and reasons issued Friday, August 7, 2020

 

TABLE OF CONTENTS

DETERMINATION  i

STATEMENT OF REASONS  1

SUMMARY OF THE COMPLAINT  1

PROCEDURAL BACKGROUND  1

PRELIMINARY MATTER  2

TRIBUNAL’S ANALYSIS  3

Relevant provisions of the RFSO  3

PWGSC’s evaluation of RTG’s response to PRTC 2.1  4

French version of PRTC 2.1  7

COSTS  8

DECISION  9

 

IN THE MATTER OF a complaint filed by RTG Protech 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
RTG PROTECH 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 Act), the Canadian International Trade Tribunal determines that the complaint is not valid.

Pursuant to section 30.16(1) of the Act, the 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 RTG Protech Inc. In accordance with the Procurement Costs 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 Procurement Costs Guideline. The Tribunal reserves jurisdiction to establish the final amount of the cost award.

 

Tribunal Panel:	Randolph W. Heggart, Presiding Member
Support Staff:	Helen Byon, Lead Counsel Heidi Lee, Counsel
Complainant:	RTG Protech 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 RTG Protech Inc. (RTG) 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, pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act [1] and in accordance with the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations. [2]

[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]  This complaint concerns point-rated technical criterion (PRTC) 2.1 of the RFSO which required bidders to demonstrate that they have previously achieved certain minimum word counts for translations done from English to French and French to English. To be responsive to the requirement, bidders had to obtain a minimum score of 60 points. RTG’s bid response to PRTC 2.1 did not meet the minimum required score.

[5]  In its complaint, RTG submitted that the evaluation was done improperly as the requirements in PRTC 2.1 should be read, as it was written, to mean that RTG did not have to meet the minimum requirements set out in paragraphs (a) and (b) in PRTC 2.1 for each subject field. RTG argued that the terms of PRTC 2.1 were flawed such that it did not properly convey the requirements that RTG had to meet in order to be responsive. RTG also submitted that the English version of PRTC 2.1 was not as clear as the French version of PRTC 2.1, which gave bidders relying on the French version an unfair advantage.

[6]  As remedy, RTG requested that it be awarded the standing offer, the awarded standing offers be terminated and the bids be re-evaluated, or a new solicitation be issued. RTG also sought compensation for any work it would have been issued had it been awarded the standing offer.

[7]  As an interim measure, until the Tribunal issues its determination, RTG requested that the Tribunal reinstate a previous contract between RTG and PCA to allow it to continue to work while the inquiry was being conducted.

PROCEDURAL BACKGROUND

[8]  The RFSO was issued on September 18, 2019, and was amended on October 18, 2019, October 22, 2019, and October 30, 2019. [3] The solicitation closed on November 8, 2019.

[9]  On March 20, 2020, PWGSC informed RTG that its bid had been disqualified for failing to meet PRTC 2.1. That same day, RTG responded to PWGSC indicating that it had met the requirements of PRTC 2.1 and that there must have been an error. RTG requested an explanation with respect to PWGSC’s interpretation of the requirement. In response, PWGSC reiterated that RTG did not meet PRTC 2.1 and provided an explanation of the requirement. [4]

[10]  Following further correspondence from RTG, on March 23, 2020, PWGSC confirmed the evaluation and directed RTG to the procurement recourse mechanisms. [5]

[11]  RTG filed the present complaint on March 31, 2020, which was accepted for inquiry by the Tribunal on April 3, 2020.

[12]  On April 17, 2020, PWGSC acknowledged receipt of the complaint and filed with the Tribunal the English and French versions of the RFSO. Upon reviewing the French version of the RFSO, on April 20, 2020, RTG filed additional submissions addressing the French version of the RFSO.

[13]  On May 4, 2020, PWGSC requested an extension to the deadline for the filing of the Government Institution Report (GIR). The Tribunal granted the request and PWGSC filed the GIR on May 22, 2020.

[14]  RTG filed its comments on the GIR on June 5, 2020. [6]

[15]  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 MATTER

[16]  In its comments on the GIR, RTG requested that the Tribunal reinstate a previous contract it had with PCA in order to minimize the financial burden of waiting for the Tribunal’s determination in this inquiry.

[17]  The Tribunal has no evidence with respect to the terms and conditions of any previous contract between RTG and PWGSC. Moreover, under the applicable statute, the Tribunal does not have the authority to do what RTG is seeking. [7] The Tribunal has no jurisdiction over any aspect of the administration of the previous contract referred to by RTG. [8] The Tribunal’s jurisdiction is limited to the current procurement process that is under review in these proceedings, specifically as it relates to the RFSO.

TRIBUNAL’S ANALYSIS

[18]  Subsection 30.14(1) of the Act requires that, in conducting an inquiry the Tribunal limits 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.

Relevant provisions of the RFSO

[19]  Pursuant to section 4.1.1.2 of the RFSO, in order to be considered responsive, bidders were required to achieve a minimum overall score of 70 percent (340 out of 485 points) and also score the minimum required points in each category of the PRTC.

[20]  At issue is PRTC 2.1, which read as follows [9] :

PRTC 2 - SUBJECT FIELDS AND COMPLEXITY LEVELS Maximum Points: 180 Minimum Points: 100 Information from MT1.1 will be used for the evaluation of PRTC 2.
Point Rated Technical Criteria	Weighting (Points)
PRTC 2.1 – Complexity level 1 Subject fields	For each qualified complexity level 1 subject field the Offeror should demonstrate they achieved the below minimum for each field since January 1, 2012: a) English to French for a minimum of 1,000,000 words; and b) French to English for a minimum of 150,000 words 10 points for each of the 10 subject fields listed in Complexity Level 1. MINIMUM REQUIRED POINTS: 60 MAXIMUM POINTS AVAILABLE: 100
. . .	. . .
Complexity Level Table Complexity Level 1: Management documents, policy documents and administrative texts, including but not limited to memoranda, ministerial correspondence, general correspondence, and presentations; Communications (Press releases, speeches, Publications, web sites); Tourism, advertisements, Public notices; Human resource management in the Public Service (Job descriptions, statement of qualifications); Performance management; Career management; Business requirement (high level and detailed); Program evaluation and monitoring technology development; Procurement related text, including statements of work, evaluation criteria, requests for proposal (RFP) and contracts; Financial texts, such as financial statements, charts and accounting documents, training material, including guides, lessons and plans.

PWGSC’s evaluation of RTG’s response to PRTC 2.1

[21]  According to PWGSC, in order to achieve the 10 points for each of the subject fields, the bidder needed to meet both the English to French and French to English minimum word counts described respectively in paragraphs (a) and (b) for that field. If the bidder did not meet both word count minimums, the bidder would receive zero points for that field. [10]

[22]  For its part, RTG submitted that PRTC 2.1 did not indicate that both of the word count minimums set out in paragraphs (a) and (b) had to be met in respect of each subject field. RTG’s argument, in this regard, was essentially based on the use of the semicolon between paragraphs (a) and (b). According to RTG, a semicolon should not be placed before a word such as “and”; a semi‑colon is used to identify a list of independent items. The word count minimums were therefore independent of each other such that only one of the minimum word counts, either in paragraphs (a) or (b), would need to be met in order to obtain 10 points. RTG argued that the improper use of the semicolon led to a miscommunication of the intent of the author and to avoid any misinterpretation, RTG argued that PRTC 2.1 should have expressly indicated that for each subject field “both” minimum word counts were needed. [11] Additionally, in its comments on the GIR, RTG noted that there was no indication from the description of the points, i.e. “10 points for each of the 10 subject fields listed in Complexity Level 1” that 10 points would only be awarded for a subject field if both minimum word counts were met. [12]

[23]  Based on RTG’s interpretation, bidders were required to list a total of 10 subject fields for which they met the word count minimums for either English to French or French to English translations. As such, RTG therefore believes that it should have received the maximum 100 points for its response. [13]

[24]  RTG’s allegation with respect to the flawed terms of PRTC 2.1 raises the issue of whether PWGSC breached its obligation pursuant to Article 509(7) of the Canadian Free Trade Agreement. [14] Pursuant to Article 509(7), PWGSC is required to “make available to suppliers tender documentation that includes all information necessary to permit suppliers to prepare and submit responsive tenders”. Moreover, insofar as PRTC 2.1 does not require bidders to meet both criteria (a) and (b) in respect of each subject filed, PWGSC would also be in breach of Article 515(5) of the CFTA, which includes the obligation that procuring entities award the contract based solely on the evaluation criteria set out in the tender notices and documentation.

[25]  When considering the manner in which bids are evaluated, it is well established that the Tribunal will apply the standard of reasonableness. [15] 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. [16] 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. [17]

[26]  For the reasons that follow, the Tribunal finds that PRTC 2.1 may be reasonably interpreted as requiring the bidder to meet both minimum word counts set out in paragraphs (a) and (b) for each subject field listed in Complexity Level 1. Accordingly, the evaluators’ interpretation of PRTC 2.1 in evaluating RTG’s bid was reasonable.

Paragraphs (a) and (b) should be read conjunctively

[27]  PWGSC submitted that it was clear that bidders were required to demonstrate that they met both minimum word counts described in paragraphs (a) and (b) for a subject field in order to score ten points. PRTC 2.1 contained a vertical list of two items separated by a semicolon at the end of the first item, which was immediately followed by the word “and”. PWGSC submitted that the meaning of this list was cumulative and connective on its face; there was no ambiguity created by the use of the semicolon followed by the word “and”.

[28]  To support the position that it is common in the English language to use semicolons to punctuate vertical lists, if the list ends in an “and” or an “or”, PWGSC referred to The Canadian Style, a Government of Canada online tool. The relevant part in respect of the use of semicolons read as follows:

7.68 Use of semicolon

Use of a semicolon after each item (and a period at the end of the list) if one or more items contain internal punctuation, or after each item of a list ending in and or or, even if the items contain no internal punctuation. [18]

[29]  PWGSC argued that the word “and” must be read conjunctively based on the plain meaning of the word and the context provided in PRTC 2.1. [19] As the Tribunal has previously held, the word “and” in a list may be “clearly cumulative, connective, and not alternative”, though it may be rebutted and read disjunctively if supported by the context. [20] In this case, PWGSC submitted that there was no basis to interpret “and” disjunctively. The instructions in PRTC 2.1 required bidders to “demonstrate they achieve the below minimum for each field” (emphasis added). PWGSC submitted that “the below minimum” refers to the requirements that follow, i.e. paragraphs (a) and (b). Accordingly, PWGSC argued that the “and” should be read conjunctively. PWGSC also argued that given the context, the requirement to meet both minimum word counts was clear even without the word “and”.

[30]  In addition, PWGSC argued that the evaluators’ interpretation of PRTC 2.1 was reasonable when considering the criterion in the context of the entire RFSO. More particularly, given that the intent of the procurement was for translation services that translate text from English to French and French to English, it was reasonable to interpret PRTC 2.1 as requiring the bidder to demonstrate experience translating to and from both languages for a subject field to score points.

[31]  The Tribunal agrees with PWGSC and finds that RTG’s proposed interpretation is not consistent with the actual wording of PRTC 2.1 read in its entirety.

[32]  RTG’s proposed interpretation ignores the plain meaning of PRTC 2.1, which provides that “For each qualified complexity level 1 subject field the Offeror should demonstrate they achieved the below minimum for each field” (emphasis added), which are set out in paragraphs (a) and (b). This wording may reasonably be interpreted as requiring the bidder to meet the minimum word counts set out in paragraphs (a) and (b) for each of the ten subject fields. In the case that PWGSC had intended for the bidder to meet only one of the minimum word counts set out in paragraphs (a) and (b), an express intent of the disjunctive relationship between the two minimums would have been necessary.

[33]  The Tribunal finds no reason to treat the word “and” disjunctively such that one of the word count minimums could be met as an alternative to the other. Furthermore, the Tribunal does not find that the semicolon, used in the context of PRTC 2.1, indicated that the minimum word counts set out in paragraph (a) and (b) were independent items in a list, such that a bidder could address only one minimum word count without consideration of the other to score points for each subject field.

[34]  According to PWGSC, the third evaluator initially gave RTG a passing score on the basis that RTG’s bid demonstrated that it achieved the minimum number of words for either English to French or French to English. PWGSC submitted that this evaluator did not appreciate that in order to obtain the ten points for a subject field, the minimum word counts for both English to French and French to English had to be met. [21] However, all three evaluators agreed after a consensus meeting that RTG did not meet the minimum score. [22] In its comments on the GIR, RTG submitted that this was evidence of the validity of its interpretation of PRTC 2.1. RTG also alleged that the evaluation notes indicated that RTG’s scores by the evaluators were changed to ensure it received a failing mark. [23]

[35]  To the extent that the evaluation notes and the consensus evaluation demonstrated score corrections by the evaluators, the Tribunal does not find this to be evidence of an unreasonable interpretation of PRTC 2.1. Insofar as the evaluators addressed initial errors that were made in evaluating RTG’s response to PRTC 2.1, it appears based on the evidence on the record that the evaluators applied themselves ensuring that they did not ignore vital information. This is consistent with the Tribunal’s previous statements that errors discovered in the evaluation process should be corrected in keeping with the terms of the solicitation and in the manner that preserves the integrity of the competitive procurement process. [24]

[36]  Considering the above, the Tribunal finds that PRTC 2.1 reasonably defined PWGSC’s requirements and therefore PWGSC’s evaluation of RTG’s response to PRTC 2.1 was also reasonable. The Tribunal therefore does not find this ground of complaint to be valid.

French version of PRTC 2.1

[37]  RTG alleged that as the French version of PRTC 2.1 did not include the word “and” (or the French equivalent “et”) between paragraphs (a) and (b) as such word appears in the English version of PRTC 2.1, the French version was clearer with respect to the requirements bidders had to meet. As such, RTG argued that bidders relying on the French version had an unfair advantage in the procurement process and that PWGSC was obligated to ensure that the requirements were equal in clarity in both languages. RTG submitted that it did not rely on the French version of PRTC 2.1 when preparing its bid responses and learned of the alleged discrepancy between two linguistic versions of the requirement only after the solicitation documents were filed by PWGSC with the Tribunal.

[38]  The French version of PRTC 2.1 read as follows [25] :

Pour chaque sujet de niveau de complexité 1 admissible, l’offrant devrait démontrer qu’il a atteint le nombre minimum de mots depuis le 1^er janvier 2012 :

• a) anglais au français : minimum de 1 000 000 mots;

• b) français à l’anglais : minimum de 150 000 mots.

[39]  The allegation that the French version of the RFSO evaluation requirements would be clearer than the English version raises the issue of whether PWGSC breached its obligations under Article 515(1) of the CFTA, which provides that “a procuring entity shall receive, open, and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process, and the confidentiality of tenders”.

[40]  In the GIR, PWGSC submitted that the French and English versions of the RFSO were consistent with one another. PWGSC submitted that it is uncommon to include a conjunction (such as “et”) before the last element of a vertical list in the French language. The determination of whether elements in a vertical list are to be read conjunctively or disjunctively should be informed by the context, i.e. the introductory paragraph in PRTC 2.1 and the broader context in which the vertical list is situated. In support, PWGSC relied on section 3.1.3 of Le guide du rédacteur, which is the French equivalent of The Canadian Style which does not use conjunctions in vertical lists, and the Office québécois de la langue française, which provides that the last element of a vertical list “n’est pas précédé de la conjonction de coordination et” (is not preceded by the conjunctive word and). [26] As a result, according to PWGSC, the absence of the word “et” does not affect the meaning of PRTC 2.1 in French.

[41]  PWGSC’s submissions very clearly explain the absence of the word “et” (the French equivalent of the word “and”) between the two minimum word counts described in paragraph (a) and (b) of the French version of PRTC 2.1. Moreover, it is evident that the reason for the omission of the word “et” in the French version would not apply to the English version of PRTC 2.1. In other words, the fact that the word “et” is absent in the French version of PRTC 2.1 does not mean that the word “and” should have been similarly omitted in the English version or that the consistency between the two versions was diminished by the fact that the English version included the word “and”. Consequently, the Tribunal is not persuaded that the French version of PRTC 2.1 was drafted more clearly by its omission of the word “et” between paragraphs (a) and (b). Furthermore, to the extent that the French version of PRTC 2.1 is clear in its meaning, there would be no advantage given to bidders relying on the French version given that the English version of the RFSO was also clear in its meaning, as discussed above.

COSTS

[42]  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 RTG. 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 a single requirement and consideration of its French equivalent. Accordingly, the Tribunal’s preliminary indication of the amount of the cost award is $1,150.

[43]  In its comments on the GIR, RTG objected to PWGSC’s request for costs on the basis that it was unaware that it could be charged for costs incurred by PWGSC in participating in these proceedings and that such costs would be unfair and impose financial hardship on RTG. RTG also noted that it does not have the means to pay for such costs. In this regard, the Tribunal has previously stated that the financial situation or ability to pay of the unsuccessful party is not a relevant consideration for the Tribunal in assessing the amount of a cost award. [27] Moreover, with respect to the fact that RTG may not have previously known that costs could be awarded against an unsuccessful party, the Tribunal cannot refuse to award costs on this basis given the extent to which these circumstances are described in its accessible publications. [28]

DECISION

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

[45]  Pursuant to section 30.16(1) of the Act, the Tribunal awards PWGSC its reasonable costs incurred in responding to the complaint which costs are to be paid by RTG. 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.