This article is an excerpt from Government Procurement, which is available for purchase.
In the July 1995 Re R.E.D. Electronics Inc. determination, the Canadian International Trade Tribunal dealt with an interpretive dispute over a Canadian Department of Finance RFP for network hub systems and relating cabling and maintenance services. The complainant alleged that the government awarded the contract to a noncompliant competitor.
The dispute revolved around the meaning of a complex mandatory technical requirement. In determining the meaning of that requirement, the Tribunal noted the following principles of interpretation that applied to the RFP:
To assist in interpreting these essential requirements, the Tribunal has adopted generally accepted principles for the construction and interpretation of contracts. In particular, the Tribunal has taken the view that the various parts of the specification are to be interpreted in the context of the intentions of the Department and bidders, as evidenced from the RFP as a whole, and that any apparent inconsistencies between different requirements of the specification are to be resolved by finding an interpretation that can reasonably give meaning to each of the requirements of the specification. The Tribunal has also taken the view that the essential requirements of the specification should not be interpreted in an isolated and disjunctive manner, but that they should be interpreted as a whole with consideration of the overall purpose and objectives of the RFP.
As this passage illustrates, if a particular provision is unclear when read in isolation, it will be interpreted with recourse to other parts of the document. This means that drafters need to ensure consistency across their procurement documents to ensure that contradictory components are not knocking the intended meaning out of alignment.
The entire document rule affects the drafting and interpretation of specific words in a legal document. The assumption is that the drafter will use the same word when the same meaning is intended and a different word when a different meaning is intended. Bennion elaborates on this concept in Bennion on Statute Law:
It is presumed that a word or phrase is not to be taken as having different meanings within the same instrument, unless this intention is made clear. Where the context shows that the term had a particular meaning in one place, it will be taken to have that meaning elsewhere.
A term or phrase may come with baggage that is inadvertently inherited from another part of the document. You therefore need to choose your words carefully, which can be particularly challenging when the document you are assembling has multiple authors. One way to address this is to divide the documents into parts. The segregation of content into discrete schedules, while not necessarily a complete answer, can help contain the risk of inadvertently skewing the meaning of a term in one part of a document by using it inconsistently in another part.
