I am still very surprised that with this confusion over the names of the items, no representative asked for clarification if that was the case (I also urge you to review pages 30 and 31 of your requirements, which clearly speak of paper files and data/backup when it is in digital format).

In any case, Eranum has unlimited digital storage capacity because storage space is no longer an issue in 2022. For your information, 16,750 boxes represent a maximum of 34 TB, which is nothing in terms of disk space for a digitization company. We have over 1,000 TB of space for our digitization projects. Your project is for a total of 2,000 boxes, we are talking about 4 TB...

If digital storage space had been mentioned, the question would have been: What disk space does your company have to process and store a 2,000-box project for more than 60 days? …

[Translation]

[10 ] A debrief meeting between the parties was held via videoconference on December 2, 2022, during which Eranum reiterated its ability to store boxes and host files. According to Eranum, TC representatives also attempted to explain, in imperfect French, the decision to declare its proposal non-responsive. It argued that TC supposedly changed the reason for this rejection from Eranum’s inability to host digital files to its inability to keep boxes of documents.^{^[11]} At the end of this meeting, TC indicated that the outcome of the evaluation would not change.

[11 ] On December 13, 2022, Eranum filed a complaint with the Tribunal.

ANALYSIS

[12 ] Pursuant to sections 6 and 7 of the Regulations, after receiving a complaint that complies with subsection 30.11(2) of the CITT Act, the Tribunal must determine whether the following four conditions are met before it can conduct an inquiry:

(i) the complaint has been filed within the time limits prescribed by section 6 of the Regulations;

(ii) the complainant is a potential supplier;

(iii) the complaint is in respect of a designated contract;

(iv) the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements.

[13 ] In this case, the first three conditions have been met.

[14 ] Regarding the fourth condition, the Tribunal must determine whether the information provided by the complainant, and any other information examined by the Tribunal, discloses a reasonable indication that the procurement was not conducted in accordance with any of the applicable trade agreements set out in that paragraph. The Tribunal has previously described the threshold as follows:

In procurement complaints, the party alleging that a procurement has not been conducted in accordance with the applicable trade agreements must provide some proof to support that claim. This is not to say that the complainant in a procurement dispute under one of the agreements has the burden of proving all necessary facts as a plaintiff generally does in a civil case … However, the complainant must provide sufficient facts or arguments to demonstrate a reasonable indication that a breach of one of the trade agreements has taken place.[12]

[15 ] For the following reasons, the Tribunal determines that the complaint does not disclose a reasonable indication that the procurement was not conducted in accordance with any of the applicable trade agreements.[13] In fact, the evidence instead indicates that TC evaluated Eranum’s proposal against the clear criteria set out in the documentation related to the solicitation and did not make any errors that would warrant the Tribunal’s intervention.

First ground: TC’s evaluation of Eranum’s proposal with respect to MT6

[16 ] The RFP contains six mandatory technical criteria.[14] The sixth, which is at issue in this case, relates to the ability to keep paper records after they are digitized:

MT6

The bidder must demonstrate the ability to retain files [dossiers] for 60 days after digitalization and then destroy files

[17 ] Eranum alleges that it did in fact demonstrate in its proposal its ability to keep the records for 60 days after they have been digitized and that this demonstration was made on the first page of its proposal, where it is written that it has the ability to store 16,750 boxes.[15] Eranum therefore submits that its proposal was compliant with MT6 of the RFP and that TC thus erred in declaring it non‑responsive.

[18 ] It is well established that bidders bear the onus of clearly demonstrating that all mandatory criteria of a request for proposal have been met in their proposals. In Falcon Environmental Inc. v. Department of Public Works and Government Services,[16] the Tribunal stated the following:

The Tribunal has also been clear that bidders bear the onus of demonstrating that their bids meet the mandatory criteria of a solicitation. In other words, bidders bear the responsibility of “connecting the dots”—they must take care to ensure that any and all supporting documentation in their bids clearly demonstrates compliance. As such, while the Tribunal has encouraged evaluators to resist making assumptions about a bid, ultimately, it is incumbent upon the bidder to exercise due diligence in the preparation of its proposal to ensure that it is unambiguous and properly understood by the evaluators.

[Footnotes omitted]

[19 ] Further, the Tribunal typically accords a large measure of deference to evaluators in their evaluation of proposals. Therefore, the Tribunal has repeatedly stated 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]

[20 ] TC’s RFP was specific and left no doubt as to how to demonstrate compliance with the evaluation criteria. It reads as follows:

In their technical bid, Bidders should demonstrate their understanding of the requirements contained in the bid solicitation and explain how they will meet these requirements. Bidders should demonstrate their capability and describe their approach in a thorough, concise and clear manner for carrying out the work .

The technical bid should address clearly and in sufficient depth the points that are subject to the evaluation criteria against which the bid will be evaluated. Simply repeating the statement contained in the bid solicitation is not sufficient. In order to facilitate the evaluation of the bid, Canada requests that Bidders address and present topics in the order of the evaluation criteria under the same headings . ...[18]

[Emphasis added]

[21 ] Based on the information on file, there is nothing before the Tribunal indicating that the evaluators unreasonably concluded that Eranum’s proposal was non-compliant with MT6. In fact, in the Tribunal’s view, Eranum clearly did not follow the instructions in the RFP in its proposal. The Tribunal notes that it did not submit the information in its bid according to the structure described in the RFP. There is no heading or section regarding MT6 in Eranum’s proposal, nor is there any specific information on the file retention period that it is able to provide after the paper records have been digitized and prior to their destruction. In any event, with respect to MT6, the Tribunal considers that Eranum’s proposal did not meet the requirement to “address clearly and in sufficient depth [one of] the points that are subject to the evaluation criteria against which the bid will be evaluated.”

[22 ] Read as a whole, Eranum’s technical proposal only implicitly deals, at best, with its ability to keep records. In many places,[19] the proposal suggests that Eranum has the ability to store records prior to their destruction, depending on the client’s needs. For example, on the first page of its proposal, it is written that it has the ability to store 16,750 boxes. However, nowhere is it explicitly indicated that Eranum has the ability to store paper records for 60 days after they have been digitized, as required by MT6 in the RFP. In the Tribunal’s view, TC’s conclusion that in Eranum’s proposal it did not clearly establish its compliance with the requirement to demonstrate an ability to keep records during this period is therefore well founded.

[23 ] As indicated above, bidders bear the responsibility of ensuring that any and all supporting documentation in their bids clearly demonstrates compliance with the mandatory criteria set out in an RFP, and it is not the role of evaluators to make assumptions or draw inferences to compensate for, in favour of bidders, the lack of clarity or deficiencies in a proposal. In this regard, the Tribunal has already indicated the following:

The standard for evaluating bids against mandatory criteria is not one of a balance of probabilities. As stated at the outset of this analysis, bids must be evaluated thoroughly and strictly for compliance. It is not enough that a bid “may have been” compliant or was “more likely than not” compliant. A bid is either compliant or it is not.

Thus, a conclusion that it is not clear whether a bid is compliant is a conclusion that the bid is non‑compliant. The onus to show compliance rests on the bidder; it is not incumbent on, or permissible for, government institutions to give bidders the benefit of the doubt where compliance cannot be clearly established.[20]

[Emphasis in original]

[24 ] The Tribunal is of the view that Eranum’s proposal was simply deficient and incomplete in terms of demonstrating its compliance with MT6. Despite the presence of general statements that suggest that the company can keep or store records or documents once they have been digitized, there is no clear and unambiguous evidence that this ability expends up to 60 days after they have been digitized, as required by MT6. In the absence of any mention and, especially, details on the file retention period in its proposal, Eranum did not meet the requirement of demonstrating the length of time of its retention capacity.[21] For example, it could have provided specific examples of previous contracts in respect of which it had kept documents it had digitized for at least 60 days.

[25 ] In short, since it was unclear from the content of Eranum’s proposal if it was compliant with MT6, the evaluators’ conclusion that it was not compliant was justified and supported by a tenable explanation in the circumstances. Once again, evaluators are required to thoroughly and strictly evaluate bids and cannot give bidders the benefit of the doubt. The Tribunal finds that the evaluators complied with these principles in this case. Thus, it was reasonable for TC’s evaluators to conclude that Eranum’s proposal was non-responsive on this ground.

[26 ] Consequently, the first ground of complaint does not disclose a reasonable indication that the procurement was not conducted in accordance with the applicable trade agreements.

Second ground: the alleged ambiguity and unfairness with respect to the French version of MT6

[27 ] As noted above, Eranum appeared to allege that there was a drafting problem in the RFP that may have led to an interpretation problem by TC. Specifically, it alleged that there was confusion between the terms “physical files” and “digital files” [translation] in the French version of the RFP and subsequent correspondence. According to Eranum, it would have been fairer to bidders if TC had required that all proposals be completed in English only.

[28 ] Specifically, Eranum refers in particular to the use of the term “dossier” (record) in MT6, while the term “fichier” (file) is used in the regret letter. In its correspondence with TC, Eranum appears to take the position that, contrary to the explanations provided by TC to justify the rejection of its proposal, the RFP does not use the term “fichier” (file) to refer to physical files (i.e., paper records).[22] Eranum seems to infer from TC’s use of the term “fichier” (file) that its proposal may have been rejected due to an inability to keep digital files, which was not the subject of MT6.

[29 ] For the following reasons, the Tribunal is of the view that the information on the record does not demonstrate, to a reasonable extent, that the French version of MT6 was ambiguous or unfair to the bidders who responded to the RFP in French. In addition, the Tribunal considers that TC’s use of the term “fichier” (file) instead of “dossier” (paper record) in the letter explaining the reason for rejecting Eranum’s proposal for non-compliance with MT6 is a minor, inconsequential mistake that does not indicate that TC misinterpreted MT6 or mistakenly rejected Eranum’s proposal based on deficiencies in its proposal regarding its ability to keep digital records.

[30 ] Considering the totality of the evidence and the terms of the RFP, the use of the word “fichiers” (files) by TC in the regret letter and in response to the objection clearly meant “dossiers” (paper records) in the context of the exchanges between the parties. In particular, it is clear that, when it used the term “fichiers” (files) throughout its correspondence and exchanges with Eranum, TC referred to Eranum’s failure to demonstrate its ability to keep paper records for 60 days, and did not call into question Eranum’s ability to digitize and keep digital files, as an explanation for the rejection of its proposal. In fact, even Eranum’s objection indicated that it understood that TC was referring to the paper records—the source documents to be digitized—to explain the basis for rejecting its proposal:

... we have a great deal of difficulty understanding how the government has reached the conclusion that we do not have the capacity to keep documents for 60 days when the second paragraph of our proposal states that we have a storage capacity of 16,750 boxes.

[Translation, emphasis added]

[31 ] In any event, it should be noted that the evidence indicates that at the meeting on December 2, 2022, TC representatives ultimately clarified that MT6 refers to physical records, i.e., paper documents to be digitized that were required to be kept by the winning bidder for 60 days, and that Eranum’s proposal with respect to this criterion was evaluated on this basis. This interpretation appears to be consistent with Eranum’s original understanding of MT6; as noted above, Eranum alleges that its bid demonstrates its ability to keep the physical records as required by MT6. Therefore, there is no possible confusion as to the (correct) interpretation by TC of MT6 and the basis for the rejection of its proposal. Contrary to Eranum’s allegation, there were no changes in the reason given by TC to declare its proposal non-responsive. It was never about Eranum’s ability to keep digital files.[23]

[32 ] In addition, several elements in the RFP and subsequent amendments [24] establish that MT6 refers to paper records to be digitized and that they are sometimes referred to as “fichiers” (files) in the solicitation documents in French. Since the relevant documentation sometimes uses the term “fichiers” (files) to refer to paper records, the use of this term by TC in these exchanges with Eranum does not really create confusion and certainly does not mean that TC has changed the meaning of MT6, which deals with the retention of paper records, to make it a requirement to keep digital files, in order to reject Eranum’s proposal.

[33 ] In fact, and contrary to what was suggested by Eranum, the terms “fichiers” (files) and “dossiers” (records) were used interchangeably (or at least in the way they were translated into French) in the amendments to the request for proposal, both by TC and by the bidders who asked the contracting authority questions prior to the closing date of the RFP, to refer to the paper documents to be digitized.

[34 ] For example, question and answer 32 of Annex A to Amendment 9, published on July 25, 2022, provides as follows:

Question 32:

In terms of destruction (in Annex “B” at the top of page 33), will 100% of the documents have to be shredded? (i.e. does 750 boxes represent the entire 5.4 million pages)?

Answer 32:

We have increased the number of files needing digitalization to closer to 18.7 million pages. We may need to revise this based on price. We may for instance decide that we are only indeed going to digitalize 5.4 million pages. Regardless of the number of pages digitalized 100% will need to be destroyed by the vendor after Civil Aviation Medicine receives and preforms quality assurance on the digitalized files. We will need a 60 day window to complete this. Please provide estimates for the digitalization (with OCR) and destruction of 5.4 million and 18.7 million pages .[25]

[Emphasis added]

[35 ] It is clear from TC’s response that the use of the term “fichiers” (files) means “pages” or “paper file” to be digitized and that the contracting authority’s concern is that paper files are not destroyed before the expiry of the 60-day period to ensure quality control of the digitizing or “digitized files”.