IN THE MATTER OF a complaint filed by The Masha Krupp Translation Group Ltd. 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.
In addition, the Canadian International Trade Tribunal recommends that The Masha Krupp Translation Group Ltd. be compensated for lost opportunity in the amount of the profit that it would reasonably have made during the time that CLS Lexi-Tech holds the current contract and until such time as the retendering is complete, divided by the number of bidders that were compliant with the mandatory criteria.
The amount of compensation is to be negotiated between the parties. The parties will provide the Canadian International Trade Tribunal, within 40 days of the date of this determination, an approximate schedule of the time frame for retendering the procurement and completing the negotiations. If the parties reach agreement on the amount of compensation, they will notify the Canadian International Trade Tribunal of their agreement. If the parties are unable to agree on the amount of compensation, they may make submissions to the Canadian International Trade Tribunal regarding the appropriate amount of compensation. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of compensation.
Each party will bear its own costs.
The statement of reasons will be issued at a later date.
Complainant: The Masha Krupp Translation Group Ltd.
. R.S.C., 1985, c. 47 (4th Supp.) [CITT Act].
. Exhibit PR-2016-041-01, Exhibit 3 at p. 11, Vol 1.
. Table A3 of Annex A divides CRA texts into two broad levels for the purposes of translation and editing, with Level 1 texts classed as “general administration and business” and inclusive of items such as training materials, and Level 2 texts classed as “specialized” and inclusive of items such as legal texts related to taxation.
. Exhibit PR-2016-041-01 at 67, Vol. 1.
. Ibid., Exhibit 2 at p. 3.
. Ibid. at paras. 21-24.
. In a further amendment of the information it had provided during the debriefing, the CRA wrote that two evaluators had contacted two of MKTG’s references, while three evaluators had contacted the third reference.
. Exhibit PR-2016-041-01B at 3, Vol. 1.
. Exhibit PR-2016-041-11, Annex A, Vol. 1A.
. Ibid., tabs 1, 2 and 22.
. S.O.R./93-602 (Regulations).
. On December 14, 2016, MKTG submitted confidential comments on the GIR that did not comply with the Tribunal’s requirements for confidential documents. MKTG acknowledged this but indicated that it wished to discuss the confidentiality of certain information with opposing counsel before submitting compliant confidential and public versions. On December 15, 2016, the Tribunal informed MKTG that it could not consider the non-compliant confidential documents as properly filed and gave MKTG until noon on December 19, 2016, to file properly formatted public and confidential documents, subsequent to which the Tribunal would consider any requests to make confidential information public, as necessary. On December 16, 2016, the CRA advised the Tribunal that it had not been served with a copy of the (deficient) comments on the GIR. On December 19, 2016, MKTG filed its public and confidential comments on the GIR and served public versions on the CRA and on CLS. The Tribunal forwarded the confidential comments on the GIR to the other parties.
. Exhibit PR-2016-041-14, Exhibit 1, Vol. 1.
. Exhibit PR-2016-041-19, Vol. 1C. The CRA requested in the alternative that it be allowed to make further submissions on the grounds of complaint it asserted were new.
. Exhibit PR-2016-041-20, Vol. 1C. CLS also requested in the alternative that it be allowed to “respond properly” to the grounds of complaint it asserted were new. Further, CLS indicated that, as it was not notified of the cross‑examination of one of the CRA’s evaluators by MKTG, it reserved the right to also examine that evaluator.
. Exhibit PR-2016-041-21, Vol. 1C.
. Exhibit PR-2016-041-22, Vol. 1C.
. Exhibit PR-2016-041-23, Vol. 1C. In addition, the Tribunal utilized Rule 6 of the Canadian International Trade Tribunal Rules, S.O.R./91-499, in concluding that the examination of the CRA’s evaluator is not a right possessed by CLS and is not necessary with regard to the resolution of this complaint.
. Exhibit PR-2016-041-01 at para. 13, Vol. 1.
.  1 S.C.R. 69 (CanLII).
. Exhibit PR-2016-041-01 at para. 82, Vol. 1.
. It should be noted that Article 504 sets out the reciprocal non-discrimination provisions of the AIT.
. Exhibit PR-2016-041-01 at para. 54, Vol. 1.
. Ibid. at paras. 62, 63, 67 and 68. Notably, MKTG also stated that the CRA indicated in its October 17, 2016, letter that evaluators asked “a series of questions” of the references, something MKTG asserted cannot be done as the evaluation criteria contained in Appendix 2 of Part 6 of the RFP are very narrow. However, the Tribunal is unable to find any indication in that letter that a “series of questions” were asked. Rather, the letter indicates that each “. . . reference was asked the questions as they appear on page 29 of the RFP . . .”.
. Exhibit PR-2016-041-01 at paras 56 and 57, Vol. 1.
. Further, the Tribunal observes that a clear distinction exists between requirements that form part of the solicitation process and those that form part of the resulting contract. Unless solicitation documents explicitly indicate otherwise, the latter are not subject to the trade agreements and are thus not reviewable by the Tribunal. See Tyco Electronics Canada ULC (21 March 2014), PR-2013-048 (CITT).
. Exhibit PR-2016-041-11 at para. 2, Vol. 1A.
. Ibid. at para. 54. The CRA made reference to paragraph 31 of the Tribunal’s decision in Paul Pollack Personnel Ltd. o/a The Pollack Group Canada (23 September 2013), PR-2013-016 (CITT) [Paul Pollack]: “Even if the RFS required resources to be available, the Tribunal notes that, in the absence of any further indication in the RFS regarding how that criteria would be assessed or evaluated, DFATD would be entitled, at the point of bid evaluation and contract award, to rely on representations made by Maplesoft with regard to the availability of its proposed resources.”
. Exhibit PR-2016-041-11 at paras. 61-63, Vol. 1A.
. 3202488 Canada Inc. o/a Kinetic Solutions (3 March 2011), PR-2010-089 (CITT) at para. 19; Airsolid Inc. (12 March 2010), PR-2009-089 (CITT) at para. 16.
. Exhibit PR-2016-041-11, tabs 8, 9 and 10, Vol. 1A.
. It appears that two of the three references had written to MKTG, while there was a verbal discussion with the third reference. Exhibit PR-2016-041-11, tabs 8, 9 and 10, Vol. 1A.
. (6 May 2015), PR-2014-047 (CITT) [Lanthier].
. (18 January 2013), PR-2012-015 (CITT) [Storeimage].
. Exhibit PR-2016-041-19, Vol. 1C.
. Exhibit PR-2016-041-20, Vol. 1C.
. The Tribunal dealt above with the issue of CLS’ failure to comply with the security requirement.
. Exhibit PR-2016-041-21, Vol. 1C.
. MKTG also raised the issue of the subjectivity of the evaluation process when it completed the Tribunal’s complaint form in response to the question on the “Basic nature of the complaint”.
. Exhibit PR-2016-041-01 at para. 72, Vol. 1.
. Paul Pollack at paragraph 27.
. Paul Pollack at para. 31.
. Tercon at para. 40.
. Exhibit PR-2016-041-14 at paras. 87-94, Vol. 1B.
. Reference can be made to Survival Systems Training Limited v. Department of Public Works and Government Services (3 September 2015), PR-2015-010 (CITT) [Survival Systems]; IBM Canada Ltd. (5 November 1999), PR-99-020 (CITT); and Secure Computing LLC v. Department of Public Works and Government Services (23 October 2012), PR-2012-006 (CITT).
. Reference can be made to Joint Venture of BMT Fleet Technology Limited and NOTRA Inc. (5 November 2008), PR-2008-023 (CITT); and Access Corporate Technologies Inc. v. Department of Transport (14 November 2013), PR-2013-012 (CITT).
. Exhibit PR-2016-041-01 at paras. 3, 40, 62 and 66, Vol. 1.
. While the names of the individuals in this paragraph are in the public version of the GIR, the Tribunal has decided to exercise discretion and exclude the names from these reasons. The names are inconsequential with regard to the outcome of this procurement inquiry.
. This fact is also contained in the evaluators’ notes pertaining to MKTG’s bid.
. Exhibit PR-2016-041-11, tab 2 at 10, Vol. 1A; Ibid., tab 22 at 10.
. Exhibit PR-2016-041-14B, tab 2 at para. 13, Vol. 1B; Ibid., tab 1 at paras. 699-701.
. It is obvious math that MKTG would have received a higher total technical score than CLS if it had received full marks for the first point-rated criterion. The issue the Tribunal faces is that it is entirely speculative what score MKTG would have received if the CRA had conducted the reference checks properly.
. Procurement Compensation Guidelines at para. 3.1.2; PTI Services (28 November 2001), PR-2001-027 (CITT) at 3 [PTI Services].
. Procurement Compensation Guidelines at paras. 3.1.4 and 3.1.5.
. Cifelli Systems v. Department of Public Works and Government Services (5 May 2008), PR-2007-084 (CITT); Bureau d’études stratégiques et techniques en économique v. Canadian International Development Agency (4 June 2009), PR-2007-010R and PR-2007-012R (CITT); Neosoft Technologies Inc. v. Department of Public Works and Government Services (5 August 2009), PR-2008-061 (CITT).
. ZENON Environmental Inc. (10 June 2003), PR-2002-015R (CITT); ADRM Technology Consulting Group Corp. v. Department of National Defence (16 December 2016), PR-2016-024 (CITT) at para. 57; PTI Services at 4; Huron Consulting (10 February 2003), PR-2002-037 (CITT) at 8.
. Exhibit PR-2016-041-01B at 1, Vol. 1; Exhibit PR-2016-041-11 at para. 15, Vol. 1B; Exhibit PR-2016-041-01, Exhibit 6, Vol. 1.
. Canyon Contracting v. Parks Canada Agency (19 September 2006), PR-2006-016 (CITT) at para. 31; IBM Canada Ltd. (7 September 2000), PR-99-020 at 3.
. Exhibit PR-2016-041-11, tabs 8, 9 and 10, Vol. 1A. The e-mail from the third reference recalling that she had been contacted is dated November 25, 2016, which is after the complaint was filed, but confirms that she had verbally confirmed this to MKTG before the complaint was filed.