This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its July 2008 determination in 144314 Canada Inc./Nexys v. Department of Human Resources and Social Development, the Canadian International Trade Tribunal upheld a complaint after finding that the government had inaccurately interpreted a vague mandatory requirement and improperly rejected the complainant’s proposal.
The case dealt with a Request for Proposals (RFP) for the provision of translation and revision services in both official languages. The complainant disputed the government’s application of a mandatory requirement calling for proof of a minimum of five years’ past experience delivering the required services. The English and French versions of the requirement were inconsistent.
The English version clarified a discrepancy in the French version and confirmed that evidence of incorporation was required to satisfy the five years’ past experience requirement. However, the Tribunal determined the ambiguity in the French version could not be reconciled by referring to the English version, since the primary language of the complainant was French and it would be unreasonable to expect French-speaking bidders to read the English version of the RFP to clarify the ambiguity. The Tribunal cited the contra proferentem rule and determined that the ambiguity should be resolved against the government as author. It ordered a re-evaluation of the complainant’s proposal.
