STAR GROUP INTERNATIONAL TRADING CORPORATION
v.
DEFENCE CONSTRUCTION (1951) LIMITED
File No. PR-2013-032

Determination and reasons issued
Monday, April 7, 2014

TABLE OF CONTENTS

• DETERMINATION
• STATEMENT OF REASONS
  • PRELIMINARY MATTERS
  • PROCUREMENT PROCESSS
  • TRIBUNAL’S ANALYSIS
    • Scope of Review
    • Standard of Review
    • Tribunal Review of Alleged Scoring Errors
  • CONCLUSION
  • REMEDY AND COSTS
    • Remedy
    • Costs
  • DETERMINATION OF THE TRIBUNAL

 

IN THE MATTER OF a complaint filed by Star Group International Trading Corporation 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.

BETWEEN

STAR GROUP INTERNATIONAL TRADING CORPORATION Complainant

AND

DEFENCE CONSTRUCTION (1951) LIMITED Government Institution

DETERMINATION

Pursuant to subsection 30.14(2) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal determines that the complaint is valid.

Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal recommends, as a remedy, that Defence Construction (1951) Canada not exercise its option to extend the length of the contract awarded in this case beyond its initial three-year term and, instead, should the requirement continue to exist, re-issue a competitive solicitation for the requirement in accordance with the provisions of the applicable agreements.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Star Group International Trade Corporation its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by Defence Construction (1951) Canada. The Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Canadian International Trade Tribunal, as contemplated in its Guideline for Fixing Costs in Procurement Complaint Proceedings. The Canadian International Trade Tribunal retains jurisdiction to establish the final amount of the award.

Pasquale Michaele Saroli
Pasquale Michaele Saroli
Presiding Member

Dominique Laporte
Dominique Laporte
Secretary

Tribunal Member: Pasquale Michaele Saroli, Presiding Member

Counsel for the Tribunal: Elysia Van Zeyl

Complainant: Star Group International Trading Corporation

Government Institution: Defence Construction (1951) Limited

Counsel for the Government Institution: Alexander Gay
Matina Karvellas

Intervener: Black & McDonald Limited

Please address all communications to:

The Secretary
Canadian International Trade Tribunal
15th Floor
333 Laurier Avenue West
Ottawa, Ontario  K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
E-mail: secretary@citt-tcce.gc.ca

STATEMENT OF REASONS

1. On January 17, 2014, Star Group International Trading Corporation (SGI) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act^[1] concerning a procurement (Solicitation No. DHTC1401) by Defence Construction (1951) Limited (DCC) for a facilities maintenance and support services contract in respect of the Department of National Defence’s (DND) Dwyer Hill Training Centre.
2. On January 22, 2014, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the requirements of subsection 30.11(2) of the CITT Act and the conditions set out in subsection 7(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.^[2]
3. Also on January 22, 2014, the Tribunal invited the parties to make submissions on the issue of jurisdiction. Neither party chose to do so.
4. On January 31, 2014, DCC advised that the contract had been awarded to Black & McDonald Limited. On February 10, 2014, the Tribunal granted a request by Black & McDonald Limited for intervener status.
5. On February 17, 2014, DCC filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules.^[3] On February 27, 2014, SGI filed its comments on the GIR.
6. Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that an oral hearing was not required and disposed of the complaint on the basis of the written information on the record.

PRELIMINARY MATTERS

7. In regard to the issue of jurisdiction, although the Tribunal notes that certain services listed in the MERX^[4] notification of the procurement in issue are not covered by various provisions of the relevant trade agreements,^[5] the Tribunal is satisfied that it has jurisdiction to inquire into this complaint on the basis that all listed services are subject to the relevant provisions of the Agreement on Internal Trade.^[6]

PROCUREMENT PROCESSS

8. Subsection 30.14(1) of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of the complaint. At the conclusion of the inquiry, the Tribunal must determine whether the complaint is valid on the basis of whether the procedures and other requirements prescribed in respect of the designated contract have been observed. Section 11 of the Regulations provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the applicable trade agreements, which, in this instance, is the AIT.
9. Article 506(6) of the AIT provides that “[t]he tender documents shall clearly identify the requirements of the procurement, the criteria that will be used in the evaluation of bids and the methods of weighting and evaluating the criteria.”
10. On July 24, 2013, DCC issued a Request for Prequalification (RFP) inviting facilities maintenance firms to provide technical submissions to pre-qualify for a contract to carry out facilities maintenance services at DND’s Dwyer Hill Training Centre in Richmond, Ontario.
11. Sections 1.2.3 and 1.2.4 of the RFP indicate that the contract is for an initial term of three years (commencing on April 1, 2014) with the possibility of extension for one additional two-year period and then for up to three additional one-year periods, for a possible total duration of eight years.
12. On August 20, 2013, SGI provided its technical submission in response to the RFP, which closed on the same date.
13. Section 2.2 of the RFP draws a distinction between “mandatory clauses” and “advisory clauses”. Failure to meet the requirements of a mandatory clause results in disqualification, with the technical submission receiving no further consideration, while the failure to meet the requirements of an advisory clause may result in the assignment of a lower score to the technical submission. Section 2.2 provides as follows:

2.2 Mandatory and Advisory Clauses

2.2.1 Mandatory clauses during the procurement are those containing the words “must”, “will” or “shall”. These clauses must be observed at all times, unless otherwise authorized by DCC. Proponents not respecting these clauses will be disqualified and their technical submissions will not receive any further consideration.

2.2.2 Advisory clauses are those containing the words “may” or “should”. Proponents not respecting these clauses may be scored lower.

[Underlining added for emphasis]

14. Moreover, section 3.1 of the RFP, requires that proponents meet the security requirements specified in section 2.15.1, with the failure to do so resulting in the submission being viewed as not meeting the minimum requirements of the solicitation and, therefore, not being entitled to further consideration.
15. The technical evaluation criteria were described in section 5 of the RFP, with the percentage weight ascribed to each criterion set out as follows:

EVALUATION CRITERION		Weight per sub-criteria	Total % weight per criteria
3.1	Mandatory Security Requirements	Meets	Does not meet
5	Technical Criteria
5.2	Proponent Administration Form	N/A	N/A
5.3	Comparable Contracts		33
	Facilities Maintenance & Support Services Contract #1	11
	Facilities Maintenance & Support Services Contract #2	11
	Facilities Maintenance & Support Services Contract #3	11
5.4	Contractor Team		21
5.4.1	Structure and Integrity of Contractor Team	9
5.4.2	Capability: Proponents are to provide résumés for the proposed Key Personnel (Max. 2 pages per person)	12
5.5	Safety		10
5.5.1	Workers Compensation and Safety Record	5
5.5.2	Safety Policy and Program	5
5.6	Subcontracting Experience		8
5.7	Emergency Response		5
5.8	Management Approach (4 pages)		23
Total:			100

16. Section 3.2.1.1 of the RFP provides as follows with respect to the evaluation of technical submissions:

3.2.1 Evaluation of Technical Submissions

1. The Technical Submission, as provided by the Proponent in response to the requirements specified in Sections 3.1 and 5 herein, will be evaluated against the specified criteria and as outlined in Figure 1 - Evaluation Criteria Table, included in this document. The evaluation will be based solely on the information provided by the Proponent including clarifications/confirmations that may be requested as described in paragraph 2.10 of this Request for Prequalification.

[Underlining added for emphasis]

17. This comports with the well-established principle that evaluators cannot consider knowledge or information extraneous to the submission itself when it was a requirement of the RFP that such information be submitted.^[7]
18. Section 3.2.1.2 of the RFP in turn sets out the following rating formula and scale:

3.2.1 Evaluation of Technical Submissions

. . .

2. Each criterion, as described under section 5, will be scored using a rating of zero (0), one (1), two (2) or three (3). The scores for each criterion will be divided by three (3) and multiplied by the weight factor assigned to the criterion as identified in Figure 1 to produce a weighted score.

The ratings that will be used for this evaluation are as follows:

Rating	Definition	Description
3	Excellent	Very good or excellent response
2	Acceptable	Response that generally meets the requirements
1	Weak	Response is poor; missing key information
0	Non-responsive	No response provided

19. Pursuant to section 3.2.2 of the RFP, only those proponents that met the mandatory security requirements and obtained a technical rating of at least 66 percent against the evaluation criteria would be invited to submit a financial bid proposal. Section 3.2.2 provides as follows:

3.2.2 Invitation to Submit Price

1. The Proponents, whose Technical Submissions have met the Mandatory Security Requirements and have obtained a minimum technical score of 66% out of the total of 100% against the evaluation criteria, will be provided the technical specifications and related documents in order to submit a price.

2. Proponents who have not met the Mandatory Security Requirements and have not obtained a minimum technical score of 66% of the total of 100% against the evaluation criteria shall receive no further consideration.

20. Section 3.2.2.3 of the RFP provides as follows: “It is the intention of DCC to award the contract to the Tenderer who has met the mandatory Security Requirements, has obtained a minimum technical score of 66% and who has submitted the lowest compliant total tender price.”
21. On November 6, 2013, SGI was advised that it failed to achieve the requisite technical score of 66% and, therefore, had failed to prequalify.
22. On January 13, 2014, the Contracting Authority provided SGI with a debrief explaining the scoring of SGI’s technical submission.
23. On January 17, 2014, the Tribunal received a complaint from SGI alleging that an insufficient number of points had been awarded to its technical submission by the DCC evaluation team.

TRIBUNAL’S ANALYSIS

Scope of Review

24. Subsection 30.14(1) of the CITT Act provides that, “[i]n conducting an inquiry, the Tribunal shall limit its considerations to the subject-matter of the complaint.”
25. The subject matter of the complaint in the present inquiry concerns SGI’s specific allegation that “Star Group . . . [has] been improperly scored on [its] submission and as a result, precluded from participating in Phase 2 of the subject procurement.”^[8]

Standard of Review

26. The Tribunal accords a large measure of deference to evaluators in their assessment of potential supplier submissions.^[9] In this respect, the Tribunal stated, in File No. PR-2005-004, that it would only interfere with an evaluation that was unreasonable.^[10] The Tribunal has previously indicated that a determination would be considered reasonable if it was supported by a tenable explanation, regardless of whether or not the Tribunal itself found that explanation compelling.^[11] In this connection, the Tribunal will only substitute its judgment for that of the evaluators if the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided, 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.^[12]

Tribunal Review of Alleged Scoring Errors

Section 5.3 of the RFP: Comparable Contracts

27. Under section 5.3.1 of the RFP, proponents were required to “. . . list and briefly describe three (3) Facilities Maintenance and Support Services Contracts carried out by the Contractor in the last 10 years”, with an additional mandatory clause stipulating that “Contracts are to be of comparable size and scope to this contract”. [Underlining added for emphasis]
28. As to submission content, section 5.3.1 of the RFP indicates as follows:

Contracts are to be presented numbered from 1 to 3 and to demonstrate:

1. The name and the type of properties served by the Contract (office building, warehouse, garages, multi-use buildings, etc.);

2. If a contract was carried out under a Joint Venture, the Joint Venture partners should be identified and the degree of responsibility assigned to each partner should be indicated;

3. The Scope of Facilities Maintenance and Support Services provided and should demonstrate experience in as many areas listed under 1.2.5 of this document as possible;

4. The annual and overall Contract values, and the Contract duration;

5. The relevance of the contract to the present Requirement;

6. Name, address and telephone numbers of client contacts for the contract.

More recent and relevant contracts (Scope and Value), in terms of Facilities Maintenance and Support Services will score higher. The contracts should be each valued above $3 million per year. The contracts should include a mix of facility types such as maintenance garages, warehouses, offices, garages and recreational buildings.

[Emphasis added]

29. SGI made a number of assertions in support of its allegation that it was not awarded sufficient points under section 5.3 of the RFP in respect of comparable facilities maintenance and support services contracts.^[13] The Tribunal will now turn to an assessment of the merits of these claims.

–        Evaluation Factor 1: Facilities Maintenance and Support Services, Contract No. 1

30. It is clear from the express terms of section 5.3.1 of the RFP and, in particular, from the mandatory clause that “[c]ontracts are to be of comparable size and scope to this contract” that the assessment of the comparability of contract No. 1 to the RFP resulting contract would be based on the “size and scope” of the former relative to the latter. Accordingly, the fact that a contract is in respect of the same location as that described in the RFP, while relevant,^[14] is not, in and of itself, dispositive, as contracts in respect of the same facilities could conceivably differ as to value and/or the specific scope of the services to be provided by the contractor.
31. Regarding the statement in section 5.3.1.3 of the RFP that proponents should demonstrate experience in as many areas listed under section 1.2.5 as possible, the Tribunal considers the SGI’s contention that, because no minimums were indicated, “SGI clearly met the requirement by providing experience in as many areas as possible”^[15] to reflect a misunderstanding of the purpose of this advisory clause. In the Tribunal’s view, this clause is not an independent criterion, the full satisfaction of which entailed nothing more than the act of identifying those specific areas of section 1.2.5 where the proponent had acquired demonstrable experience. Rather, the clause is intended to advise proponents of the benchmarks against which the comparability of their facilities maintenance and support services experience would be evaluated.^[16] Indeed, it is only logical that such comparability be assessed by reference to the very kinds of facilities maintenance and support services that the successful contractor would be required to provide under the resulting contract, as listed in section 1.2.5.
32. Regarding SGI’s submission on the reasonableness of the request for experience in elevators and lifting systems in the RFP, the Tribunal notes that the parties differ on the question of whether such devices are currently present at the Dwyer Hill Training Centre.^[17] The Tribunal has consistently held that, as a general rule, a procuring entity is entitled to define its own procurement needs, provided, of course, it does so reasonably.^[18] Even if SGI were correct in its assertion that there are currently no elevators or lifting systems at the Dwyer Hill Training Centre, this fact would not be sufficient to render the request for experience in the inspection, testing, maintenance and repair of such devices unreasonable, as their introduction could conceivably be part of anticipated facility improvements and/or upgrades.
33. On the basis of the foregoing analysis and the point rating assigned under this factor, the Tribunal does not consider DCC’s evaluation of the comparability of SGI’s contract No. 1 to the contract described in the RFP to be unreasonable.

–        Evaluation Factors 2 and 3: Facilities Maintenance and Support Services, Contract Nos. 2 and 3

34. Section 5.3.1 of the RFP required all bidders to provide three examples of comparable facilities maintenance and support services contracts and, as required, SGI’s bid described three contracts, one of which is discussed above. With respect to the other two contracts described in SGI’s bid (evaluation factors 2 and 3), as SGI makes essentially the same claims with respect to DCC’s evaluation of these contracts, evaluation factors 2 and 3 will be considered together.
35. In the Tribunal’s view, the advisory clause in the trailer to section 5.3.1 of the RFP that “. . . contracts should be each valued above $3 million per year” cannot be read in isolation, but rather must be read in light of the mandatory clause contained in the chapeau to that provision that “[C]ontracts are to be of comparable size and scope to this contract” [emphasis added]. With section 5.3.1 requiring that contracts be of comparable size, and with the size of a contract being typically measured in monetary value terms, the Tribunal does not consider it unreasonable that contracts falling below the $3 million per year threshold would be subject to an appropriate point-score reduction, as authorized by section 2.2.2.
36. It was also not unreasonable for DCC to have awarded a lower score for the failure to demonstrate experience in certain of the service areas listed in section 1.2.5 of the RFP, which, as previously explained, provided the logical benchmarks by reference to which the comparability of the facilities maintenance and support services provided under contract Nos. 2 and 3 would be evaluated.
37. Regarding, however, DCC’s observation that the comparable contract referred to multiple buildings on many sites as opposed to on one site, the Tribunal notes that, while section 5.3.1 of the RFP provides that comparable contracts include “. . . a mix of facility types such as maintenance garages, warehouses, offices, garages and recreational buildings”, there is no specific requirement that comparable contracts involve a single site. In any event, a review of SGI’s submission confirms its claim that both contract Nos. 2 and 3 indicate not only multiple buildings across several locations but also various multi-building sites.^[19] The Tribunal, therefore, does not view any point-score reduction based on such undisclosed locational considerations to be reasonable.
38. On the basis of the foregoing analysis, the Tribunal does not consider DCC’s evaluation of the comparability of SGI’s contract Nos. 2 and 3 to the contract described in the RFP to be reasonable.

Section 5.4 of the RFP: Contractor Team

39. The RFP provides that, in this section, “the Proponent should demonstrate that the Contractor Team has the necessary experience to carry out the assignment.”

–        Evaluation Factor 4: Structure and Integrity of Contractor Team

40. Section 5.4.1 of the RFP provides as follows:

5.4.1 Structure and Integrity of Contractor Team

Proponents are to demonstrate how they propose to structure the Contractor Team to manage the quality, procurement, overall contact administration, preventive maintenance, etc. and to identify the Key Personnel and describe their key roles and responsibilities and how they will work efficiently and effectively to deliver the contract services.

Proponents should describe their current workloads, and describe and demonstrate how this will be managed in order to effectively carry out the work.

[Underlining added for emphasis]

41. The Tribunal does not accept the suggestion that, as incumbent facilities maintenance and support services provider for the Dwyer Hill Training Centre, SGI’s current workload and proposed structuring of responsibilities were established under evaluation factor 1. In the Tribunal’s view, incumbency does not excuse SGI from having to respond to the informational requirements of rated factors in the same manner as other proponents.^[20] As explained earlier, it is well established in law that evaluators must base their evaluations on the content of the proposals before them without recourse to information or knowledge extraneous thereto. Indeed, reliance on incumbency, insofar as it assumes that the proponent’s workload is confined to the particular facilities in respect of which it is the incumbent services provider and that the existing allocation of key roles and responsibilities would be maintained under the RFP resulting contract, would call into question the fairness of the evaluation process.
42. The information requested under section 5.4.1 of the RFP is explicitly tied to the delivery of “the contract services” and to the carrying out of “the work”. In this regard, the scope of work is set out in section 1.2.5 and provides a detailed enumeration of specific services that the successful contractor would likely be required to perform under the RFP resulting contract. The Tribunal, therefore, does not accept SGI’s implication that the ability to respond more fulsomely to section 5.4.1 was precluded by the lack of a scope of work provision in the RFP. Regarding the suggestion that DCC, which had explicitly reserved the right, in section 2.10.1, to request clarifications from a proponent regarding any aspect of its submission, had a duty of fairness to seek clarification from SGI on this aspect of its submission, it is well established in jurisprudence that, while a procuring authority may seek clarifications, it is under no obligation to do so.^[21]
43. The requirement in the first paragraph of section 5.4.1 of the RFP (which, in the Tribunal’s view, extends to named affiliates forming part of the Contractor Team) goes beyond the simple identification of key personnel and their responsibilities to include an explanation of how they would work efficiently and effectively to deliver the contract services. That being the case, it was not unreasonable to make a point-score deduction because, although SGI described its responsibilities and workload, it failed to elaborate on how named affiliates would effectively and efficiently deliver the specific services falling within their responsibility areas.
44. On the basis of the foregoing analysis and the point rating assigned under this factor, the Tribunal does not consider DCC’s evaluation of the structure and integrity of the Contractor Team to be unreasonable.

–        Evaluation Factor 5: Capability

45. Section 5.4.2 of the RFP provides as follows:

5.4.2 Capability

Proponents are to provide résumés (Max. 2 pages per person) of the Key Personnel proposed under 5.4.1 above.

Résumés should include the following information:

• A brief description of the previous roles and responsibilities as they relate to this contract;
• Previous job designations as they relate to this contract;
• Education, total years of experience and years of experience with the firm;
• Relevant managerial and/or technical experience, relevant to this contract.

Greater and more relevant experience will score higher.

[Underlining added for emphasis]

46. A review of the résumé of the proposed Operations Manager in question confirms that the individual had limited facilities management or technical experience relevant to the RFP resulting contract.^[22]
47. In the Tribunal’s view, neither SGI’s substantial corporate experience in facilities management nor the fact that this particular individual would be acting under the direction of more experienced members of the proposed Contractor Team provided a basis to disregard the proposed Operations Manager’s own lack of relevant experience.
48. On the basis of the foregoing analysis and the point rating assigned under this factor, the Tribunal does not consider DCC’s evaluation of SGI’s proposed Contractor Team’s capability to carry out the resulting contract to have been unreasonable.

Section 5.5 of the RFP: Safety

49. This criterion is divided into two separate factors, i.e. Workers Compensation and Safety Record, and Safety Policy and Program.

–        Evaluation Factor 6: Workers Compensation and Safety Record

50. Section 5.5.1 of the RFP provides as follows:

5.5.1 Safety Workers Compensation and Safety Record

Provide Proponent history with respect to safety and health issues including any internal milestones such as length of time between accidents or other measures utilized. Also provide evidence of any logged safety infractions or incidents. Additionally, Proponent is to provide Letters of Good Standing as available from any government or other associations or bodies having such jurisdiction.

The evaluation will be based on the Proponent’s proven track record to address and report health and safety incidents.

[Underlining added for emphasis]

51. While section 5.5.1 of the RFP requests historical information on health and safety issues, the criterion clearly states that the evaluation will be based on the proponent’s proven track record to “address and report” health and safety incidents. In this regard, while SGI’s Merit Adjustment Premium (MAP) increased by 15 percent for the 2012-2013 period,^[23] the Tribunal understands that MAP operates as a prospective program whereby the Workplace Safety and Insurance Board adjusts a firm’s premiums for the coming year on the basis of its previous accident record. The record does however indicate that workplace injuries were duly reported and that accidents decreased in 2012 from 2011.^[24]
52. Nonetheless, in light of the existence of previous workplace incidents, the Tribunal considers that the point rating assigned under this factor by DCC was not unreasonable.

–        Evaluation Factor 7: Safety Policy and Program

53. Section 5.5.2 of the RFP provides as follows:

5.5.2 Safety Policy and Program

In a summarized manner, the Proponent is to describe its Health and Safety policy, procedures and practices and how they provide and maintain a safe and healthy working environment for team members, highlighting the key elements of their policy and/or handbook.

The evaluation will be based on the Proponent’s methodology and policies that provide and promote a safe and healthy working environment for team members, sub-Contractors and visitors.

54. While DCC submits that it was reasonably open to the evaluators to read training, risk assessment, risk mitigation and sub-contractor safety into the criterion, the Tribunal notes that these were not specifically disclosed in section 5.5.2 of the RFP as specifically rated factors. The Federal Court of Appeal has stated that, when Government contracts for the supply of goods and services, it owes a duty of fairness to all bidders.^[25] In this regard, it is the Tribunal’s view that, as a quid pro quo to the requirement placed on potential suppliers to strictly comply with the mandatory requirements of solicitation documents, Government procurement authorities are obliged to clearly identify the rated criteria that will form the basis of the evaluation process.^[26]
55. The Tribunal notes that the summary contained in SGI’s submission addresses health and safety policy goals, procedures in relation to hazard assessment and practices in relation to hazard management (including SGI’s Hazard Management Tool).^[27] The summary provided by SGI, although brief, is not unreasonable given the maximum length prescribed for summaries required under sections 5.3.1 and 5.4.2 of the RFP. Moreover, SGI provided its detailed Health and Safety Manual for the Dwyer Hill Training Centre as part of its technical submission.^[28] It is clear to the Tribunal that these materials specifically address risk mitigation.^[29] The jurisprudence confirms that evaluators are to consider a bidder’s submission as a whole, rather than in an isolated and disjunctive manner;^[30] however, it appears to the Tribunal that the evaluators failed to consider the content of the materials that were included in SGI’s submission.
56. On the basis of the foregoing analysis, the Tribunal is of the view that DCC’s assessment under this factor was unreasonable in that the evaluators appear to have ignored vital information provided by SGI in its submission.

–        Evaluation Factor 8: Subcontracting Experience

57. Section 5.6 of the RFP provides as follows:

5.6 Subcontracting Experience

Proponents are to demonstrate how they procure and manage subcontracts in existing similar type contracts and how they would incorporate the Work Request Process identified in 1.3 of this document into their procurement and management processes. Proponents should also demonstrate experience and ability in coordinating multiple sub-Contractors to deliver small projects and also, multiple work requests in the same building.

58. The Tribunal notes that SGI’s submission outlines, in some detail, its modalities for procuring and managing subcontractors.^[31] However, the submission, rather than explaining how the Additional Work Request Process identified in 1.3 of the RFP would be incorporated into its procurement and management process, provided a short description of a purportedly similar process.^[32]
59. On the basis of the foregoing analysis and the point rating assigned under this factor, the Tribunal does not consider DCC’s evaluation of SGI’s subcontracting experience to have been unreasonable.

–        Evaluation Factor 9: Emergency Response

60. Section 5.7 of the RFP provides as follows:

5.7 Emergency Response

Demonstrate the processes, practices in place and the experience your firm has in successfully managing emergency response situations. Emergency response situations may include for example: power failure to building that requires power at all times, flooding of a building or environmental spill/contamination clean up and remediation.

61. While SGI’s submission explains in some detail the processes and practices that it currently has in place for managing emergency response situations, it does not provide any examples of actual experience in this area.
62. In regard to this evaluation factor, SGI urged the Tribunal to consider materials that it filed in File No. PR-2012-027 in which it claims to have submitted an identical response to this question and received full points. The Tribunal is not able to do so. As is apparent from subsection 30.14(1) of the CITT Act and has been confirmed repeatedly throughout the jurisprudence, the Tribunal must limit itself to the subject matter of the complaint before it.^[33] To consider how evaluators scored SGI’s submission on a past procurement, even to the extent that the requirements and response were similar to those contained in the present complaint, is outside the scope of this inquiry.
63. On the basis of the foregoing analysis and the point rating assigned under this factor, the Tribunal does not consider DCC’s evaluation of SGI’s ability to manage emergency response situations to have been unreasonable.

–        Evaluation Factor 10: Management Approach

64. Section 5.8 of the RFP provides as follows:

5.8 Management Approach

. . .

Describe in general, how you propose to structure and manage the services to meet the contract’s requirements in a logical and efficient manner; Proponents should summarize what they consider to be the most important parts of this contract and describe how they propose to ensure the success of these parts.

The Proponents are to demonstrate their ability to successfully manage the work to meet the requirements of the contract, including but not limited to, a description of the management approach to the following:

• Mobilization of Contract services following contract award and how ‘phase-in period’ will be managed;
• Quality Assurance of Services and deliverables;
• Maintenance planning and programming including identification of preventive maintenance scheduling and routines, and coordination of all maintenance activities;
• Communication with DCC and DND stakeholders before and during Contract;
• Sub-Contractor and supplier performance management;
• Meeting industrial security requirements.

65. The RFP does not specifically request information pertaining to the security clearance requirements of subcontractors, although it does require the proponent to describe its management approach to “meeting industrial security requirements” generally. While DCC apparently handled the security clearances of subcontractors in the past, there is nothing in the RFP itself to justify the conclusion that it remained DCC’s intention to continue to do so under this new contract. Nor would such an assumption on the part of SGI be rendered reasonable by the fact that it had acquired this particular knowledge as incumbent facilities maintenance and support services supplier, as such knowledge is extraneous to the RFP itself.
66. In conducting an evaluation, evaluators may look beyond the direct response to a rated criterion to consider relevant information contained elsewhere in the submission. Indeed, the jurisprudence confirms that evaluators have a duty to thoroughly and diligently review proposals.^[34] In this regard, the Tribunal notes that SGI, in its response to evaluation factor 8 (Subcontracting Experience), does in fact refer to the minimum security requirements of, and clearance checks for, subcontractors,^[35] although it does not propose specific modalities for ensuring same.
67. Given the uncontested fact that the facility in question is a highly secured site, a point-score reduction for failing to elaborate specific modalities for the security clearance of subcontractors, was not, in the Tribunal’s view, unreasonable.

CONCLUSION

68. On the basis of the foregoing analysis, the Tribunal finds that DCC’s evaluation of SGI’s submission against evaluation factors 2, 3 and 7 was not reasonable. As explained above, the Tribunal is of the view that, in assigning SGI a lower score for evaluation factors 2 and 3 on the basis of the observation that the contracts involved buildings spread across several cities rather than on a single site, DCC evaluated SGI’s proposal on the basis of a criterion that had not been disclosed to potential bidders. Regarding DCC’s evaluation of SGI’s submission under evaluation factor 7, the evaluators appear not to have turned their minds to the content contained in SGI’s Health and Safety Manual, which clearly addressed factors such as risk mitigation in response to the requirements of section 5.5.2 of the RFP. Consequently, the Tribunal finds that the complaint is valid.
69. Having regard, however, to the broad rating scale bands established under the RFP that ranged from 0 (non-responsive) to 3 (excellent), and which were applied by evaluators to each of the evaluation criteria, the Tribunal is not prepared to speculate that SGI would have garnered a higher overall score, but for the above-identified errors of DCC’s evaluators.

REMEDY AND COSTS

Remedy

70. Having found that the complaint is valid, the Tribunal must now recommend a suitable means of redressing the harm that the deficiencies in the evaluation process may have caused to SGI.
71. In considering what would constitute a suitable remedy, the Tribunal is obligated to consider all the circumstances relevant to the procurement at issue, including factors set out in subsection 30.15(3) of the CITT Act. Having carefully considered the circumstances relevant to this procurement, particularly the fact that there is no evidence of malfeasance on DCC’s part and the real possibility that SGI’s proposal might not have received a higher score even in the absence of these errors, the Tribunal recommends, as a remedy, that DCC not exercise its option to extend the length of the contract awarded in this case beyond its initial three-year term and, instead, re-tender the contract once its initial term expires, if there is a continuing requirement for these facilities maintenance and support services.

Costs

72. The Tribunal awards SGI its reasonable costs incurred in preparing and proceeding with the complaint. The Tribunal’s Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline) contemplates classification of the level of complexity of complaint cases based on three criteria: the complexity of the procurement; the complexity of the complaint; and the complexity of the complaint proceedings. The complexity of the procurement was low. Although several different services were involved, they were seemingly standard services that would likely have been required in many procurements for facilities maintenance and support. The complexity of the complaint was generally low. Finally, the complexity of the complaint proceedings was low and did not necessitate a public hearing.
73. On the basis of the foregoing considerations, the Tribunal is of the view that this complaint has a complexity level corresponding to the lowest level of complexity referred to in Appendix A of the Guideline (i.e. Level 1). As contemplated by the Guideline, the Tribunal’s preliminary indication of the amount of the cost award is therefore $1,000.

DETERMINATION OF THE TRIBUNAL

74. Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is valid.
75. Pursuant to subsections 30.15(2) and (3) of the CITT Act, the Tribunal recommends, as a remedy, that DCC not exercise its option to extend the length of the contract awarded in this case beyond its initial three-year term and, instead, should the requirement continue to exist, re-issue a competitive solicitation for the requirement in accordance with the provisions of the applicable agreements.
76. Pursuant to section 30.16 of the CITT Act, the Tribunal awards SGI its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by DCC. The Tribunal’s preliminary indication of the level of complexity for this complaint case is Level 1, and its preliminary indication of the amount of the cost award is $1,000. If any party disagrees with the preliminary indication of the level of complexity or the preliminary indication of the amount of the cost award, it may make submissions to the Tribunal, as contemplated by the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the award.