This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
The October 2002 determination of the Canadian International Trade Tribunal in Re Zenon Environmental Inc. considered an interpretive dispute over the meaning of the i.e. abbreviation. A Canadian Department of Defence Request for Proposals (RFP) called for the repair and overhaul of reverse-osmosis desalination units used on Canadian Forces frigate ships for converting salt water into drinking water.
The mandatory requirement that led to the interpretive dispute required proponents to submit a technical proposal that included the following:
Firm indication that all components required to perform the required work are accessible to the bidder (ie. Letters of intent from Original Equipment Manufacturers)
The complainant, Zenon Environmental Inc., argued that the government awarded the contract to a non-compliant competitor. The successful proponent, Seprotech Systems Inc., intervened and argued that it had met the mandatory requirement.
The two proponents disagreed on whether a letter of intent from the manufacturer was the only way that a “firm indication” of access to the required components could be established. Each proponent marshalled case law supporting its interpretation of the meaning of i.e.
Both Public Works and Government Services Canada and Seprotech argued that a letter of intent from the manufacturer was just one example of how the “firm indication” could be established. The government maintained that the provision also allowed letters of intent from the manufacturer’s authorized distributors or representatives.
However, Zenon, who argued that its competitor should have been rejected for non-compliance, maintained that the requirement could be satisfied only by providing a letter for the manufacturer, and that interpreting the i.e. to mean that the letter of intent was simply one example of how the “firm indication” requirement could be satisfied rendered the requirement almost meaningless:
ZENON submitted that the documentation that had to be provided by bidders to satisfy the mandatory requirement of a “firm indication” of accessibility consisted of letters of intent from OEMs. It submitted that the use of the abbreviation “i.e.” indicated that this was not merely an example of one way in which accessibility to components could be indicated and argued that the abbreviation “i.e.” means “that is to say”, which identifies specifically what is required. In this case, it argued that the RFP specified that the manner in which bidders were to provide a firm indication of accessibility to components was by providing letters of intent from the OEMs and that the RFP provided for no other method of satisfying this requirement.
In response to Seprotech’s submission that the reference in the RFP to letters of intent from OEMs was only illustrative of “one of the means by which a bidder” could meet this requirement, ZENON submitted that Seprotech’s submissions reduced the requirement for a “firm indication”, and the phrase “ie. Letters of intent from Original Equipment Manufacturers”, to near meaninglessness. It further submitted that to give effect to Seprotech’s submission would be to introduce into the RFP the very ambiguity with respect to what constitutes a “firm indication” of access to components that the specific phrase “ie. Letters of intent” was intended to remove.
The Tribunal then weighed in on the meaning of i.e., making the following observations regarding the inherent lack of certainty in its meaning:
In its submission, Seprotech argued, on the basis of the common law cases mentioned earlier, that the parenthetical phrase “(ie. Letters of intent from Original Equipment Manufacturers)” did not prohibit PWGSC from accepting other forms of confirmation of availability of supply of component parts. The Tribunal has heard and acknowledges arguments from both ZENON and Seprotech relating to their interpretation of “i.e.” and notes that the common law cases seem to favour both a restrictive and a non-restrictive interpretation, depending on the case.
The Tribunal ultimately determined that the contract award was improper, since the winning bidder had relied on verbal assurances to satisfy the “firm indication” requirement and, even if the i.e. was interpreted more broadly to permit evidence other than a letter of intent from the manufacturer, the verbal assurances offered up by Septrotech fell well outside the scope of the “firm indication” requirements called for by the mandatory requirement. The Tribunal left the precise meaning of the i.e. abbreviation as a matter to be dealt with by other parties on another day. This case provides another example of why it’s a good idea to avoid using ambiguous abbreviations in your procurement documents.
