File No. PR-2018-064 Raymond Chabot Grant Thornton Consulting Inc. v. Department of Health

Determination and reasons issued Wednesday, May 1, 2019

 

TABLE OF CONTENTS

DETERMINATION.. i

STATEMENT OF REASONS. 1

INTRODUCTION.. 1

BACKGROUND.. 1

GROUND OF COMPLAINT NOT ACCEPTED FOR INQUIRY.. 1

GROUND OF COMPLAINT ACCEPTED FOR INQUIRY.. 2

Relevant provisions of the RFP. 2

Position of the parties. 4

Analysis. 4

Conclusion. 5

COSTS. 6

DETERMINATION.. 6

 

IN THE MATTER OF a complaint filed by Raymond Chabot Grant Thornton Consulting Inc. 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
RAYMOND CHABOT GRANT THORNTON CONSULTING INC.	Complainant
AND
THE DEPARTMENT OF HEALTH	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 not valid.

Pursuant to section 30.16 of the Canadian International Trade Tribunal Act, the Canadian International Trade Tribunal awards the Department of Health its reasonable costs incurred in responding to the complaint, which costs are to be paid by Raymond Chabot Grant Thornton Consulting Inc. In accordance with the Procurement Costs Guideline, 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 $1,150. 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 Article 4.2 of the Procurement Costs Guideline. The Canadian International Trade Tribunal reserves jurisdiction to establish the final amount of the cost award.

Randolph W. Heggart             
Randolph W. Heggart
Presiding Member

Tribunal Panel:                                                Randolph W. Heggart, Presiding Member

Support Staff:                                                  Yusuf Khan, Counsel
Sarah Perlman, Counsel

Complainant:                                                   Raymond Chabot Grant Thornton Consulting Inc.

Government Institution:                                   The Department of Health

Counsel for the Government Institution:          Susan D. Clarke
Ian McLeod
Roy Chamoun
Kathryn Hamill
Nick Howard

Please address all communications to:

The Registrar
Secretariat to the Canadian International Trade Tribunal
333 Laurier Avenue West
15th Floor
Ottawa, Ontario  K1A 0G7

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

 

STATEMENT OF REASONS

INTRODUCTION

1.                  On February 12, 2019, Raymond Chabot Grant Thornton Consulting Inc. (RCGT) filed a complaint with the Canadian International Trade Tribunal under subsection 30.11(1) of the Canadian International Trade Tribunal Act,[1] with respect to a Request for Proposals (RFP) (Solicitation No. 1000203010) issued by the Department of Health (Health Canada) for the provision of seven Task and Solutions Professional Services (TSPS) Consultants to support various change management and transformational initiatives across the Regulatory Operations and Regions Branch on an as and when required basis.

2.                  RCGT alleged that (1) Health Canada improperly consulted information publicly available online in its evaluation of RCGT’s technical bid with regard to Mandatory Requirement M.2 under the Knowledge Management Consultant resource category; and (2) Health Canada improperly disqualified overlapping experience with regard to Mandatory Requirement M.1 under the Technical Writer resource category.

3.                  On February 19, 2019, the Tribunal decided to conduct an inquiry into RCGT’s first ground of complaint, having determined that 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] However, the Tribunal informed RCGT that it would not inquire into the second ground of complaint, as that ground was not filed within the time frames provided for in section 6 of the Regulations, and, therefore, was not timely.

4.                  Having inquired into the complaint as required under sections 30.13 to 30.15 of the CITT Act, the Tribunal finds that the complaint is not valid for the following reasons.

BACKGROUND

5.                  The RFP was issued by Health Canada on August 24, 2018, and closed on September 21, 2018.[3] The RFP was open to prequalified suppliers that hold a TSPS Supply Arrangement (TSPS SA) under TSPS SA No. E60ZT-16TSPS, which included RCGT.

6.                  On September 21, 2018, RCGT submitted its bid to Health Canada. Health Canada determined that three of the five bids received, including that of RCGT, were non-compliant with the technical requirements of the solicitation.

7.                  On December 17, 2018, Health Canada advised RCGT that its bid was non-compliant with Mandatory Requirement M.2 under the Knowledge Management Consultant resource category and Mandatory Requirement M.1 under the Technical Writer resource category, and that the contract had been awarded to IDS Systems as the bidder with the highest combined rating of technical merit and price.

GROUND OF COMPLAINT NOT ACCEPTED FOR INQUIRY

8.                  RCGT’s second ground of complaint was that Health Canada improperly disqualified overlapping experience, as Mandatory Requirement M.1 did not state that overlapping timelines of two or more projects would not be counted more than once. Mandatory Requirement M.1 provided as follows, in relevant parts:

M.1 The bidders [sic] proposed resource must have worked on a minimum of 3 projects of at least 6 months duration each, within the last 7 years. . . .

For the projects listed as experience, the following information must be identified in the proposed resources [sic] resume: . . .

c) The dates and duration of the project (indicating the years/months of engagement and the start and end dates of the work).

9.                  Subsection 6(2) of the Regulations provides that a potential supplier that has made an objection to the relevant government institution, and is denied relief by that government institution, may file a complaint with the Tribunal “. . . within 10 working days after the day on which the potential supplier has actual or constructive knowledge of the denial of relief, if the objection was made within 10 working days after the day on which its basis became known or reasonably should have become known to the potential supplier.”

10.              The Regulations make it clear that a complainant has 10 working days from the day on which the basis of the complaint becomes known, or should have been reasonably known, to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within those 10 working days, it may afterwards file a complaint with the Tribunal within 10 working days after it gains actual or constructive knowledge of the denial of relief by the government institution.

11.              The Tribunal finds that this ground of complaint was filed outside the time limits prescribed by section 6 of the Regulations. RCGT was advised on December 17, 2018, that its bid did not comply with Mandatory Requirement M.1 under the Technical Writer resource category because three of the four projects listed as experience occurred in the same period. In order to be considered timely, an objection or complaint would have had to have been filed within 10 working days of December 17, 2018, i.e. the day on which the grounds of complaint became known or reasonably should have become known to RCGT. The reply e-mail sent by RCGT on December 18 was not an objection to Health Canada’s evaluation, but a request for additional information relating to the consistent application of the same evaluation process to all bidders. RCGT received a response from Health Canada on January 9, 2019, which did not change or add to the information received on December 17 with regard to the second ground of complaint. RCGT’s objection to Health Canada was filed January 14, 2019, more than 10 working days after December 17, 2018. Accordingly, RCGT’s complaint with regard to its second ground of complaint filed with the Tribunal on February 12, 2019, is not timely.

12.              The response received from Health Canada on January 9, 2019, did, however, provide additional information regarding the use of Google searches, which allowed the first ground of complaint to be accepted as timely.

GROUND OF COMPLAINT ACCEPTED FOR INQUIRY

Relevant provisions of the RFP

13.              Section I to Part 3 of the RFP reads as follows, in relevant parts:

In their technical bid, bidders should demonstrate their understanding of the requirements contained in the bid solicitation and explain how they will meet these requirements. Bidders should demonstrate their capability and describe their approach in a thorough, concise and clear manner for carrying out the work.

The technical bid should address clearly and in sufficient depth the points that are subject to the evaluation criteria against which the bid will be evaluated. Simply repeating the statement contained in the bid solicitation is not sufficient. . . .

14.              Section 4.2.1.1 of the RFP provides as follows:

To be declared responsive, a bid must:

(a)    comply with all the requirements of the bid solicitation;

(b)    meet all the mandatory evaluation criteria; and

(c)    obtain the required minimum number of points specified in Attachment 1 to Part 4 for the point rated technical criteria.

15.              Attachment 1 to Part 4, Technical Criteria, provides as follows, in relevant parts:

Mandatory Technical Criteria

The bid must meet the mandatory technical criteria specified below. The Bidder must provide the necessary documentation to support compliance with this requirement.

Bids which fail to meet the mandatory technical criteria will be declared non-responsive. Each mandatory technical criterion should be addressed separately.

16.              Mandatory Requirement M.2 under the Knowledge Management Consultant resource category reads as follows:

The bidders [sic] proposed resource must have a minimum of 10 projects within the last 15 years which involve any of the following:

•         Developing partnerships and alliances, benchmarking, capturing, evaluating and using best-known practices to transfer best practices;

•         Facilitating knowledge of learning styles and behaviours

•         Developing structures for knowledge retention and management and working on continuous improvement of processes.

•         Creating, developing and sustaining the flow of knowledge, policies and standards;

•         Implementing strategies for knowledge management, information management, document and records management and data management;

17.              The RFP also included, by reference, the document “2003 (2017-04-27) Standard Instructions – Goods or Services – Competitive Requirements”,[4] which provides as follows, in relevant parts:

05 (2014-09-25) Submission of bids

. . .

2.    It is the Bidder’s responsibility to:

. . .

            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.

. . .

16 (2008-05-12) Conduct of evaluation

1.       In conducting its evaluation of the bids, Canada may, but will have no obligation to, do the following:

a.       seek clarification or verification from bidders regarding any or all information provided by them with respect to the bid solicitation;

. . .

f.        verify any information provided by bidders through independent research, use of any government resources or by contacting third parties; . . .

Position of the parties

18.              In its complaint, RCGT alleged that Health Canada improperly consulted publicly available information from LinkedIn profiles and Google searches to validate the information provided in its proposal for Mandatory Requirement M.2 under the Knowledge Management Consultant resource category. It argued that conclusions based on publicly available information assume that this information is accurate and complete, which is not justifiable. RCGT also submitted that Health Canada only reviewed LinkedIn profiles when they were available and that the evaluation criteria were thus not applied in a consistent and fair manner to all bidders. Furthermore, RCGT submitted that, if Health Canada required additional information, it should have requested that information from RCGT.

19.              For its part, Health Canada submitted that its evaluators had the right to verify information, as set out in the Standard Instructions, which formed part of the RFP, and that they made their determinations on a reasonable basis.

Analysis

20.              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.

21.              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 case, include the Agreement on Government Procurement,[5] the North American Free Trade Agreement[6] and the Canadian Free Trade Agreement,[7] among others.[8]

22.              The AGP, NAFTA and the CFTA each require that procuring entities treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process.[9] In addition, the trade agreements require that, to be considered for award, a tender must, at the time of opening, comply with the essential requirements set out in the tender documentation.[10]

23.              As noted above, the RFP provided that the bids would be assessed against the various mandatory technical requirements, including Mandatory Requirement M.2, and that they must meet all mandatory evaluation criteria to be declared responsive. The Standard Instructions incorporated by reference in the tender documents allowed, but did not oblige, the procuring entity to verify the information contained in bids through independent research, among others.

24.              The evidence on record shows that RCGT’s bid was determined to be non-compliant with Mandatory Requirement M.2 under the Knowledge Management Consultant resource category because it failed to provide sufficient demonstration of the proposed resource’s relevant experience in knowledge management.[11] RCGT did not challenge this conclusion. Rather, as indicated above, RCGT alleged that Health Canada improperly used information publicly available online to validate the information in its bid.

25.              In Deloitte, the Tribunal indicated that, once the evaluators choose to verify information provided by a bidder where permitted by the Standard Instructions, they must do so in a reasonable manner.[12] Here, Health Canada claimed that it consulted the LinkedIn profile of RCGT’s proposed Knowledge Management Consultant to verify its conclusion that this proposed resource did not meet Mandatory Requirement M.2. While this seems counterintuitive, in that Health Canada was proceeding with verification because of the lack of information in RCGT’s bid, it appears that Health Canada was indeed merely confirming its conclusion.

26.              The evaluators were entitled to verify the information contained in RCGT’s bid as per the provisions of the RFP. The Tribunal finds that the evaluators acted reasonably in their verification of the bidders’ proposals, as the review of information publicly available online, including LinkedIn profiles, was only done as a means of confirming what was contained in the proposals. Had Health Canada found additional information online that changed its conclusions, this may have constituted bid repair, which the Tribunal has consistently held as impermissible.[13] This, however, was not the case here. In RCGT’s case, its proposal was rejected because of the contents of its proposal, and not due to Health Canada’s verifications.

Conclusion

27.              For the reasons above, the Tribunal concludes that the complaint is not valid.

COSTS

28.              Pursuant to section 30.16 of the CITT Act, the Tribunal awards Health Canada its reasonable costs incurred in responding to the complaint, which costs are to be paid by RCGT. In accordance with the Procurement Costs Guideline (the Guideline),[14] the Tribunal’s preliminary indication of the level of complexity for this complaint is Level 1, as the procurement involved personal services by one party and the issues were simple. The proceedings were also simple. As such, the Tribunal’s preliminary indication of the amount of the cost award is $1,150.

DETERMINATION

29.              Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.

30.              Pursuant to section 30.16 of the CITT Act, the Tribunal awards Health Canada its reasonable costs incurred in responding to the complaint, which costs are to be paid by RCGT. In accordance with the Guideline, 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 $1,150. 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 in Article 4.2 of the Guideline. The Tribunal reserves jurisdiction to establish the final amount of the cost award.

Randolph W. Heggart             
Randolph W. Heggart
Presiding Member