File No. PR-2018-047 ADRM Technology Consulting Group Corp.

Decision made Thursday, December 20, 2018 Decision issued Monday, December 24, 2018 Reasons issued Thursday, January 3, 2019

 

IN THE MATTER OF a complaint filed pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.).

BY

ADRM TECHNOLOGY CONSULTING GROUP CORP.

AGAINST

THE DEPARTMENT OF EMPLOYMENT AND SOCIAL DEVELOPMENT

DECISION

Pursuant to subsection 30.13(1) of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal has decided not to conduct an inquiry into the complaint.

The statement of reasons will be issued at a later date.

 

STATEMENT OF REASONS

[1]  Subsection 30.11(1) of the Canadian International Trade Tribunal Act [1] provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations, [2] a potential supplier may file a complaint with the Canadian International Trade Tribunal concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint. Subsection 30.13(1) of the CITT Act provides that, subject to the Regulations, after the Tribunal determines that a complaint complies with subsection 30.11(2) of the CITT Act, it shall decide whether to conduct an inquiry into the complaint.

[2]  For the reasons that follow, the Tribunal has decided not to conduct an inquiry into the complaint.

SUMMARY OF COMPLAINT

[3]  The complaint concerns a Request for Proposals (RFP) (Solicitation No. 100010995) issued on August 27, 2018, by the Department of Employment and Social Development (ESDC) for the provision of one Level 3 Project Manager, two Level 3 Information Management Architects and two Level 1 Business Analysts.

[4]  In its complaint, ADRM Technology Consulting Group Corp. (ADRM TEC) alleged that ESDC wrongly applied rated evaluation criteria R3 and R7, contrary to the point rating scales provided in the RFP.

[5]  As a remedy, ADRM TEC requested that the bids be re-evaluated, that the designated contract be terminated, that the designated contract be awarded to ADRM TEC, and that ADRM TEC be compensated for its complaint costs, bid preparation costs, and for loss of opportunity.

BACKGROUND

[6]  On November 27, 2018, ADRM TEC was informed that its bid was unsuccessful and that a contract had been awarded to the highest-ranked bidder, namely NavPoint Consulting Inc.

[7]  The same day, ADRM TEC requested to know its and the winning bidder’s technical and financial scores, the total number of bids received by ESDC, as well as the number of compliant bids.

[8]  On November 29, 2018, ESDC provided ADRM TEC its technical and financial scores, but stated that it could not disclose the winning bidder’s individual technical and financial scores. ESDC also advised ADRM TEC that it received four proposals, three of which were compliant. On the same day, ADRM TEC replied to ESDC, requesting its detailed technical evaluation.

[9]  On December 7, 2018, ESDC provided ADRM TEC its completed technical evaluation grids for the mandatory and rated criteria.

[10]  On December 10, 2018, ADRM TEC called ESDC to discuss its evaluation. ADRM TEC submitted that ESDC did not properly apply rated evaluation criteria R3 and R7. According to ADRM TEC, the same day, following a review of the wording of these two criteria, ESDC advised ADRM TEC that the evaluation had been conducted properly and that no relief would be granted to ADRM TEC.

[11]  On December 14, 2018, ADRM TEC filed the present complaint with the Tribunal.

RELEVANT PROVISIONS OF THE RFP

[12]  Section 4.2 (Technical Evaluation) of the RFP provided as follows:

b.  Point-Rated Technical Criteria:

Each bid will be rated by assigning a score to the rated requirements, which are identified in the bid solicitation by the word “rated” or by reference to a score. Bidders who fail to submit complete bids with all the information requested by this bid solicitation will be rated accordingly. The rated requirements are described in Attachment 4.1 - Bid Evaluation Criteria.

[13]  The basis of selection at Section 4.3 of the RFP provided, in relevant part, as follows:

3.  The selection will be based on the highest responsive combined rating of technical merit and price. The ratio will be 70% for the technical merit and 30% for the price.

[14]  The relevant criteria of the solicitation are set out below:

ATTACHMENT 4.1 BID EVALUATION CRITERIA

. . . 

Resource Rated Criteria

. . . 

Bidders are to ensure that their responses are clear and respond to the requirements.

WS 5, P.9 Project Manager (L3) (1 resource, the resource must meet the minimum mandatory pass mark, or they will be deemed non-responsive)
No.	Rated evaluation criteria – Project manager	Points	Response
. . .	. . .	. . .	. . .
R3	The proposed Senior Project Manager must demonstrate experience developing the following artifacts for the Government of Canada in business transformation and / or Information Management projects, within the last fifteen (15) years. • Business case; • Risk register; • Project management plan; • Project governance plan; • Gantt chart; • Work breakdown structure; • Resource plan; • Budget or cost model; or • Quality management plan; The Bidder will be assigned 5 points for each and any demonstrated artifact instance to a maximum of 45 points.	/45
. . .	. . .	. . .	. . .
WS 3, I.5 IM (L3) (2 resources, each resource must meet the minimum mandatory pass mark, or they will be deemed non-responsive)
. . .	. . .	. . .	. . .
R7	The proposed IM Architect must demonstrate experience developing the following artifacts while working as an IM Architect for Government of Canada business transformation or information management projects, within the last twenty (20) years: • IM strategic plans; • IM assessment; • IM implementation strategy; • IM reporting; • Information requirements; • IM architecture; • IM implementation roadmap; • Information model; • IM performance metrics; • IM processes; • Cost/benefit analysis; • Employee training plan; • Performance management plan; or • Quality management plan The Bidder will be assigned 5 points for each and any demonstrated artifact instance up to a maximum of 70 points.	/140 *Maximum of 70 points per resource

[15]  Finally, the RFP included a reference to the Standard Acquisition Clauses and Conditions (SACC) Manual. [3] The relevant provisions stated as follows:

05 (2018-05-22) Submission of bids

. . . 

2. It is the Bidder’s responsibility to:

a.  obtain clarification of the requirements contained in the bid solicitation, if necessary, before submitting a bid;

b.  prepare its bid in accordance with the instructions contained in the bid solicitation;

. . . 

f.  provide a comprehensible and sufficiently detailed bid, including all requested pricing details, that will permit a complete evaluation in accordance with the criteria set out in the bid solicitation.

ANALYSIS

[16]  On December 20, 2018, pursuant to subsection 30.13(1) of the CITT Act, the Tribunal decided not to conduct an inquiry into the complaint.

[17]  Pursuant to sections 6 and 7 of the Regulations, the Tribunal may conduct an inquiry if the following conditions are met:

• the complaint has been filed within the time limits prescribed by section 6;
• the complainant is an actual or potential supplier;
• the complaint is in respect of a designated contract; and
• the information provided discloses a reasonable indication that the government institution did not conduct the procurement in accordance with the applicable trade agreements.

[18]  In this case, the Tribunal finds that the fourth condition has not been met. ADRM TEC’s complaint does not disclose a reasonable indication that the applicable trade agreements were breached. [4]

[19]  The trade agreements require government institutions to clearly state the criteria for evaluating proposals in a procurement process and to evaluate these proposals in accordance with the criteria set forth. [5] It is also well established that a procuring entity will comply with these obligations if it conducts an evaluation that is reasonable. As a result, the Tribunal will only interfere with an evaluation that is unreasonable [6] and will substitute its judgment for that of evaluators only when the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, 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. [7]

[20]  Rated evaluation criteria R3 and R7 of the RFP stated that the resources proposed for each criterion must demonstrate experience developing the artifacts listed in each criterion. Rated criterion R3 listed nine artifacts and rated criterion R7 listed fourteen artifacts. Rated criteria R3 and R7 also stated that the bidder would be awarded five points “for each and any demonstrated artifact instance”, up to a stated maximum of 45 points for rated criterion R3 and 70 points for each of two resources for rated criterion R7.

[21]  In its proposal, ADRM TEC provided multiple demonstrations for a subset of the artifacts listed in rated criteria R3 and R7. With regard to rated criterion R3, ADRM TEC provided 24 demonstrations over five artifacts, for which it obtained 25 out of 45 points. With regard to rated criterion R7, ADRM TEC provided 46 demonstrations over seven artifacts for its first resource and 33 demonstrations over five artifacts for its second resource, for which it obtained 35 and 25 points respectively.

[22]  ADRM TEC submitted that ESDC wrongly applied the point rating scales of rated criteria R3 and R7 by awarding points only once per demonstrated artifact. According to ADRM TEC, the word “or” in the list of artifacts and the words “each and any demonstrated artifact instance” in rated criteria R3 and R7 should have been interpreted so that not all artifacts were required to be demonstrated in order to be awarded full points. Rather, ADRM TEC submitted that each demonstration should have been awarded points, even where more than one such demonstration is provided for the same artifact.

[23]  Contrary to ADRM TEC’s submissions, the Tribunal finds no reasonable indication that ESDC wrongly interpreted rated criteria R3 and R7.

[24]  The Tribunal notes that rated criteria R3 and R7 state that the proposed resources “must demonstrate experience developing the [listed] artifacts”, and that five points would be awarded “for each and any demonstrated artifact instance” up to the maximum number of points assigned to each criterion. The Tribunal also notes that the maximum number of points available for each criterion represents five points for each artifact listed: rated criterion R3 has a maximum of 45 points available for nine artifacts, and rated criterion R7 has a maximum of 70 points available for fourteen artifacts. Taken as a whole, the wording of rated criteria R3 and R7 is clear that ESDC intended for the proposed resources to meet as many of the artifacts listed as possible, and that proposals would be evaluated on the bidder’s capability to demonstrate its proposed resources’ experience developing as many artifacts as possible. The use of the word “or” in the list of artifacts simply reflects that a proposed resource may have experience developing only some of the artifacts listed.

[25]  It is well established that it is a bidder’s responsibility to ensure that its proposal is compliant with all essential elements of a solicitation. [8] Accordingly, it was incumbent upon ADRM TEC to exercise due diligence in the preparation of its proposal and to consider the evaluation criteria carefully to make sure that it was compliant with all the elements of the solicitation. If ADRM TEC had any concerns with regard to the interpretation of rated criteria R3 and R7, it had ample opportunity to request clarifications as part of the RFP process, which it did not do. [9]

[26]  Consequently, the Tribunal finds that the complaint does not disclose a reasonable indication that the procurement was not conducted in accordance with the applicable trade agreements.

DECISION

[27]  Pursuant to subsection 30.13(1) of the CITT Act, the Tribunal has decided not to conduct an inquiry into the complaint.