SERVICE STAR BUILDING CLEANING INC.
Determinations
File No.: PR-98-027
Ottawa, Friday, January 22, 1999
File No.: PR-98-027
IN THE MATTER OF a complaint filed by Service Star Building Cleaning Inc. under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.), as amended;
AND IN THE MATTER OF a decision to conduct an inquiry into the complaint under subsection 30.13(1) of the Canadian International Trade Tribunal Act.
DETERMINATION OF THE TRIBUNAL
Pursuant to section 30.14 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 the Department of Public Works and Government Services not exercise the option to extend the contract awarded to Columbia Building Maintenance Co. Ltd. after July 31, 1999, and, instead, open up the requirement to competition at that time.
Pursuant to subsections 30.15(4) and 30.16(1) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards Service Star Building Cleaning Inc. its reasonable costs incurred in preparing a response to the Request for Proposal and in relation to filing and proceeding with this complaint.
Peter F. Thalheimer
_________________________
Peter F. Thalheimer
Member
Michel P. Granger
_________________________
Michel P. Granger
Secretary
Date of Determination: January 22, 1999
Tribunal Member: Peter F. Thalheimer
Investigation Manager: Randolph W. Heggart
Counsel for the Tribunal: Philippe Cellard
Complainant: Service Star Building Cleaning Inc.
Government Institution: Department of Public Works and Government Services
STATEMENT OF REASONS
INTRODUCTION
On October 28, 1998, Service Star Building Cleaning Inc. (Service Star) filed a complaint with the Canadian International Trade Tribunal (the Tribunal) under subsection 30.11(1) of the Canadian International Trade Tribunal Act [1] (the CITT Act) concerning the procurement (Solicitation No. BOR W0113-8-A115/000/A) by the Department of Public Works and Government Services (the Department) of janitorial cleaning services for 104 buildings under the jurisdiction of CFB Borden, Department of National Defence (DND), located at Borden, Ontario.
Service Star alleged that the Department incorrectly declared its proposal non-responsive for failing to meet the mandatory requirement to provide “[o]ne full time on site project manager,” as set out in the Request for Proposal (RFP), Specification L-B147-9900-788-98 (the Specification), Section 01370, paragraph 3.1.
Service Star requested, as a remedy, that it be awarded the contract or, in the alternative, compensation in the amount of the potential profit that it lost.
On November 9, 1998, the Tribunal informed the parties that the complaint had been accepted for inquiry, as it met the conditions set out in section 7 of the Canadian International Trade Tribunal Procurement Inquiry Regulations [2] (the Regulations). On December 7, 1998, the Department filed a Government Institution Report (GIR) with the Tribunal in accordance with rule 103 of the Canadian International Trade Tribunal Rules. [3] On December 18, 1998, Service Star filed its comments on the GIR with the Tribunal.
Given that there was sufficient information on the record to determine the validity of the complaint, the Tribunal decided that a hearing was not required and disposed of the complaint on the basis of the information on the record.
PROCUREMENT PROCESS
On May 8, 1998, the Department posted a Notice of Proposed Procurement (NPP) for the requirement on Canada’s Electronic Tendering Service (MERX). The NPP identified the procurement as being subject to the North American Free Trade Agreement [4] (NAFTA), the Agreement on Government Procurement [5] (the AGP) and the Agreement on Internal Trade [6] (the AIT). The requirement was detailed in the RFP, in part, as follows:
PART IV: PROPOSAL PREPARATION INSTRUCTIONS
It is essential that the elements contained in your bid be stated in a clear and concise manner and clearly correlate to the specific criterion you are addressing. Failure to provide a clear correlation to specific evaluation criterion or complete information as requested will be to your disadvantage.
PART V: EVALUATION CRITERIA AND CONTRACTOR SELECTION METHOD
1. EVALUATION CRITERIA
1.A. MANDATORY CRITERIA/REQUIREMENTS:
i) Compliance with Specification L-B147-9900-788-98, copy attached;
To be considered responsive, a bid must meet all of the mandatory requirements stipulated above. Bids not meeting all of the mandatory requirements will be given no further consideration.
1.B. RATED CRITERIA/REQUIREMENTS
Your proposal will be evaluated and scored in accordance with the following criteria. Points will be awarded based on the degree to which the information/material you have provided demonstrates your capability to perform and successfully carry-out the requirement described in this Request For Proposal. It is suggested you address these criteria in sufficient depth in your proposal.
Item 3 of the rated requirements reads as follows:
.3 Management Team (80 points max./56 points min.). The proponent should have a qualified customer-focused management team to operate the required services. In order to demonstrate this, the proponent is to provide the following information:
a. a detailed organizational chart showing the proposed management team structure for work to [be] carried out at Borden and the interface with CFB Borden personnel.
b. a detailed resume for the proposed Manager detailing educational background and relevant work experience.
c. a detailed resume for the proposed on-site, non-working Supervisor detailing educational background and relevant work experience.
d. a resume for each of the proposed Supervisor’s working assistants.
The Specification, Section 01370 at page 3, reads, in part, as follows:
3 Cleaning Personnel .1 - 8 hrs per day/night is a standard DND shift.
- DND has the right to enforce the above hours and number of cleaners if the standard of cleaning is not up to standard listed within the specification.
- One full time on site project manager at 8 hrs per day for duration of contract and must be in direct contact with the contract OPI [Office of Primary Interest].
- Two full time non-working on site supervisors at 8 hrs per day for duration of contract. The supervisors must be in direct contact (pager) with the Project OPI.
- The above supervisors must have two working assistants for the duration of the contract, ie., to deliver supplies, to assist in quality control etc.
- The above personnel are exclusive to this contract only .
On June 2, 1998, a site visit was held which was immediately followed by a bidder’s conference. No questions concerning the evaluation criteria were submitted by any supplier during the bidding period. The final date for the submission of proposals was June 29, 1998. Nine proposals were submitted.
Service Star’s proposal at page 10, “Corporate Support,” identifies a specific individual as Operations Manager. Page 11 of the proposal, “Organizational Chart,” identifies the same individual as Operations Manager (Project Manager). Page 20 of the proposal, “On-site organizational chart,” shows a Project Manager (Head Office) and a Manager, Administration Operations, apparently reporting to the Project Manager. Page 21 of the proposal includes the résumé of the proposed manager. Page 29 of the proposal, subsection .4 b., “Total Weekly Staff Hours For On-Site Management,” identifies the presence of a Manager on site for 40 hours per week.
The evaluation team met on July 16 and 29, 1998, to conduct the technical evaluation of proposals. On September 11, 1998, the Department advised all unsuccessful bidders that a contract had been awarded to Columbia Building Maintenance Co. Ltd. (Columbia) for this requirement. In its letter to Service Star, the Department indicated that Service Star’s proposal had been rejected on the basis that it did not comply with the mandatory criterion for an “On-Site Manager” 8 hours per day found in Section 01370, page 3 of the Specification. While the Department acknowledged that an individual was proposed as project manager, it noted that this individual was located in Ottawa and concluded that the proposed person could not be the on-site manager for 8 hours per day.
On October 2, 1998, Service Star requested a meeting with the Department for an in-depth debriefing. At the debriefing on October 20, 1998, the Department informed Service Star that it was during the evaluation of rated requirement 1.B.3, “Management Team,” that the evaluation team noticed that Service Star’s proposal did not comply with the requirement to provide “[o]ne full time on site project manager.”
VALIDITY OF THE COMPLAINT
Service Star’s Position
Service Star submitted that, contrary to the Department’s assertion, its proposal provided for an on-site manager. Service Star also submitted that the solicitation documents in this instance were far from clear.
Service Star submitted that the relevant time frame for the purpose of weighing the evidence in this instance runs from May 8, 1998, when the NPP was posted on MERX, to September 11, 1998, when the Department notified Service Star that a contract had been awarded to Columbia. Consequently, what took place or what might have been said during the debriefing of October 20, 1998, is irrelevant to determining whether Service Star’s proposal was compliant. Service Star, nevertheless, asserted that at no time did it confirm or deny that any individual might or might not be relocated. Similarly, the Department’s assertion that Service Star was going to employ one individual in two managerial positions at one time conflicts with Service Star’s recollection. These arguments, Service Star submitted, are but attempts to submit allegedly pertinent information in an ex post facto effort to justify a decision taken at a time where this information did not exist.
Service Star finally submitted that the title “Manager, Administration Operations” was intended as a designation for the individual responsible for on-site management. Indeed, Service Star submitted that the precise title of the on-site manager was undefined, since the RFP and the Specification themselves employ two varying titles for the position.
Department’s Position
The Department submitted that the onus is on the bidder to prepare and submit all information required for the evaluation of its bid in accordance with the requirements of the RFP. It further submitted that the mandatory criteria set out in the Specification were clear and unambiguous in requiring “[o]ne full time on site project manager.” Service Star’s proposal clearly provided the résumé of an individual located in Ottawa, Ontario, as the résumé of the proposed manager and another résumé for one of the two required on-site non-working supervisors. The Department submitted that no on-site individual was identified for the position of on-site project manager in Service Star’s proposal and that no individual was identified as a “Manager, Administration Operations,” although this position appears in Service Star’s on-site organizational chart. The Department further submitted that nowhere in the RFP was a position of “Manager, Administration Operations” contemplated and, therefore, that such a proposed management structure could not be responsive to the requirements of the Specification and the RFP. Accordingly, the Department submitted that Service Star’s proposal was correctly evaluated as being non-responsive to the mandatory requirement for a full-time on-site project manager.
The Department submitted that, during the debriefing, Service Star confirmed that it never intended for the individual, whose résumé it proposed as Manager, to be re-located to CFB Borden. Service Star also indicated that the responsibilities of the Project Manager could be carried out by the “Manager, Administration Operations” and that another employee, whose résumé was submitted by Service Star in its proposal under the heading of “Proposed on-site, non working Supervisor,” would assume the roles of both “Proposed on-site, non working Supervisor” and “Manager, Administration Operations” in lieu of the mandatory requirement for a Project Manager.
TRIBUNAL’S DECISION
Section 30.14 of the CITT Act requires that, in conducting an inquiry, the Tribunal limit its considerations to the subject matter of the complaint. Furthermore, 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 further provides that the Tribunal is required to determine whether the procurement was conducted in accordance with the requirements set out in NAFTA, the AGP and the AIT.
Article 1015(4)(a) of NAFTA provides that, “to be considered for award, a tender must, at the time of opening, conform to the essential requirements of the notices or tender documentation and have been submitted by a supplier that complies with the conditions for participation.” Article XIII(4)(a) of the AGP provides, in part, for the same. Article 506(6) of the AIT provides, in part, that “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.”
The Specification clearly requires that bidders provide one full-time on-site project manager, 8 hours per day, for the duration of the contract. The RFP also clearly identifies that this requirement is a mandatory requirement. This is not in dispute.
The Tribunal must, therefore, determine whether the Department was right in concluding that this requirement had not been satisfied by Service Star’s proposal.
The parties have presented conflicting evidence concerning the discussions that took place at the debriefing of October 20, 1998. For its part, Service Star has submitted that the relevant time frame for the purpose of weighing the evidence in this instance ends on or about September 11, 1998, when the Department notified Service Star that a contract had been awarded to Columbia. The Tribunal is satisfied that what took place during the debriefing of October 20, 1998, is not relevant in deciding whether or not the Department’s decision to declare Service Star’s proposal non-responsive was correct. Indeed, the debriefing having taken place after the decision, it cannot be relied upon to justify that decision.
In the Tribunal’s opinion, it is clear from the evidence that Service Star offered an on-site manager in its proposal. It is also clear that the said manager would be available on site 40 hours per week [7] . In fact, the Department recognized that a Project Manager was proposed by Service Star. However, in the Department’s opinion, since the particular individual was located in Ottawa, he could not be the full-time on-site manager.
The Tribunal can find no support in Service Star’s proposal for the Department’s assertion that the individual proposed as Manager could not be available full-time at CFB Borden. In the Tribunal’s opinion, this conclusion cannot reasonably be derived from information contained in Service Star’s proposal. The Department could have sought clarification on this point with Service Star before finalizing its decision. This, however, was not done. The Tribunal determines that the Department improperly declared Service Star’s proposal non-responsive for failing to propose a full-time on-site project manager, as, in the Tribunal’s opinion, Service Star’s proposal clearly indicated that a full-time on-site manager would be provided. It may be clear that, at the time of bidding, the individual whose résumé was submitted was located in Ottawa. This, however, cannot be equated, as the Department did, with the proposition that, therefore, this individual would not move to Borden if Service Star were awarded the contract.
In determining a remedy, the Tribunal notes the divergence between the Specification, Section 01370 at page 3, which refers to a “project manager” and the rated requirement 1.B.3 b) of the RFP, which refers to a “Manager.” This has led the parties, and consequently the Tribunal in this Statement of Reasons, to use the two expressions to refer to the same position. However, in the Tribunal’s opinion, this divergence was not critical in formulating an offer. It certainly cannot, by itself, explain why Service Star introduced in the On-Site Organizational Chart of its proposal a Project Manager (Head Office) position and identified the on-site managing position as “Manager, Administration Operations.” In the Tribunal’s opinion, this introduced an element of ambiguity into Service Star’s proposal.
Further, the Tribunal notes Service Star’s view that, in this instance, “the clock cannot be turned back and reasonableness dictates that this award cannot be reassigned.” The extent of contract performance is one of the factors that the Tribunal must consider in determining a remedy, but the Tribunal must also be sensitive to the prejudice suffered by Service Star. In consideration of the above and further considering that it is not possible to conclusively determine that Service Star would have been awarded the contract, the Tribunal awards Service Star its reasonable costs incurred in preparing a proposal and for pursuing the complaint. The Tribunal also recommends that the Department open up this requirement to competition and, to this end, not exercise the option to extend the contract awarded to Columbia beyond July 31, 1999.
DETERMINATION OF THE TRIBUNAL
In light of the foregoing, the Tribunal determines, in consideration of the subject matter of the complaint, that the procurement was not conducted in accordance to the requirements set out in Article 1015(4)(a) of NAFTA, Article XIII(4)(a) of the AGP and Article 506(6) of the AIT and that, therefore, the complaint is valid.
Pursuant to subsections 30.15(2) and (3) of the CITT Act, the Tribunal recommends, as a remedy, that the Department not exercise the option to extend the contract awarded to Columbia after July 31, 1999, and, instead, open up the requirement to competition at that time.
Pursuant to subsections 30.15(4) and 30.16(1) of the CITT Act, the Tribunal awards Service Star its reasonable costs incurred in preparing a response to the RFP and in relation to filing and proceeding with this complaint.
1. R.S.C. 1985, c. 47 (4th Supp.).
2. SOR/93-602, December 15, 1993, Canada Gazette Part II, Vol. 127, No. 26 at 4547, as amended.
3. SOR/91-499, August 14, 1991, Canada Gazette Part II, Vol. 125, No. 18 at 2912, as amended.
4. Done at Ottawa, Ontario, on December 11 and 17, 1992, at Mexico, D.F., on December 14 and 17, 1992, and at Washington, D.C., on December 8 and 17, 1992 (in force for Canada on January 1, 1994).
5. As signed at Marrakesh on April 15, 1994 (in force for Canada on January 1, 1996).
6. As signed at Ottawa, Ontario, on July 8, 1994.
7. Service Star's Proposal at 20, 21 and 29.
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Initial publication: January 25, 1999