File No. PR-2020-003 Menya Solutions Inc.

Decision made Wednesday, May 13, 2020 Decision issued Friday, May 15, 2020 Reasons issued Thursday, May 28, 2020

 

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

MENYA SOLUTIONS INC.

AGAINST

THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES

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.

 

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.

SUMMARY OF COMPLAINT

[2] The complaint relates to a request for proposals (RFP) (Solicitation No. W7701-196887/A) issued on November 9, 2018, by the Department of Public Works and Government Services (PWGSC) on behalf of Defence Research and Development Canada – Valcartier (DRDC – Valcartier), an agency of the Department of National Defence (DND), for the delivery of services to DRDC and DND in the form of research and development (R&D) in the area of Command, Control and Intelligence (C2I).

[3] The RFP states that this procurement is subject to the provisions of the Canadian Free Trade Agreement. [3]

[4] The complainant, Menya Solutions Inc. (Menya), alleges that the assessment of its proposal was biased and did not appropriately reflect its quality or the result the complainant should have obtained, namely being awarded the contract. Specifically, Menya submits the following:

(a) PWGSC erred by under-evaluating the content of its proposal regarding certain point-rated criteria without sufficient justification for the score awarded; and

(b) the process PWGSC used to evaluate the proposals, and in particular, the exceptionally long duration of the evaluation process and the hasty awarding of the contract at the end of the process despite the complainant’s announced challenge, casts serious doubts on its compliance with the rules and appears biased in favour of a competitor.

[5] The complainant requested that the proposals be reevaluated, that the contract that was awarded to another offeror be terminated, and that it be awarded the contract. Alternatively, it requested compensation for loss of profit and loss of opportunity.

PROCUREMENT PROCESS

[6] Initially, the bid closing date had been set for December 6, 2018. This was later postponed to January 23, 2019. The complainant submitted its bid on the revised closing date. The complainant’s proposal involved other businesses that would act as its subcontractors.

[7] On July 16, September 19, and December 20, 2019, PWGSC communicated with the complainant by email requesting a 60-day extension of its proposal validity period. Each time, Menya agreed to extend the validity period of its proposal.

[8] On several occasions (February 12, March 22 and April 3, 2019), the complainant inquired with the contracting authority about the date the winner of the procurement process would be announced, and during the third of these communications, it explained that it could not indefinitely block off the resources committed in its proposal. [4] On October 10, 2019, the complainant sent an email to PWGSC reiterating its concerns about the delay (that it described as “non-standard” [translation]) in announcing the outcome of the process and indicating that Menya and its partners were experiencing hardship. Menya stated that it hoped to receive the results of the process shortly, or explanations from PWGSC about the delay.

[9] In a letter dated February 20, 2020, sent by email on February 21, 2020, PWGSC informed the complainant that the contract had been awarded to another bidder, Thales Digital Solutions Inc. (Thales). [5] PWGSC informed the complainant that its proposal had been declared non-compliant with certain requirements in the RFP. In particular, its proposal did not obtain the minimum number of points required for criterion 4, “Methodology”. [6] The letter also indicated the total points obtained by Menya and Thales. The letter did not provide details of the assessment of Menya’s proposal.

[10] Further to the complainant’s requests for an explanation, a debriefing meeting was held on April 8, 2020, by videoconference. During this feedback session, PWGSC provided the score Menya obtained and, according to the meeting notes submitted in evidence by Menya, a summary of the reasons Menya had lost points for certain criteria. [7]

[11] On April 8, 2020, the complainant asked PWGSC to quickly send it the details of the evaluation and to “suspend the contract until it has been clearly established that the evaluation and award processes were fair” [translation]. [8] On April 17, 2020, PWGSC replied to the complainant that it was working on the request for the details of the evaluation and should be able to send them at the beginning of the following week. On April 23, 2020, PWGSC sent the complainant the detailed notes of the evaluation of its proposal. [9]

[12] On May 6, 2020, the complainant filed its complaint with the Tribunal. Since the complaint did not comply with all the requirements under subsection 30.11(2) of the CITT Act, on May 7, 2020, the Tribunal advised the complainant that its complaint was incomplete and asked it for additional documents so that the complaint would meet the requirements of the above-noted subsection. That same day, the complainant provided the Tribunal with a revised complaint in which it had corrected the number of the impugned solicitation, and it sent the requested documents to the Tribunal.

ANALYSIS

[13] Pursuant to sections 6 and 7 of the Regulations, after receiving a complaint that complies with subsection 30.11(2) of the CITT Act, the Tribunal must determine whether the following four conditions are met before it launches an inquiry:

(a) the complaint has been filed within the time limits prescribed by section 6 of the Regulations;

(b) the complainant is a potential supplier;

(c) the complaint is in respect of a designated contract; and

(d) the information provided discloses a reasonable indication that the procurement has not been conducted in accordance with the relevant trade agreements.

[14] Menya alleges that PWGSC’s evaluation of its proposal was biased because it does not appropriately reflect its quality and the result it should have had. As indicated above, Menya raised two grievances in its complaint: (1) PWGSC erred by under-evaluating the content of its proposal in relation to certain point-rated criteria without providing sufficient justification for the score given, and (2) the process PWGSC used to evaluate the proposals creates serious doubts about compliance with the rules.

[15] Below, the Tribunal will review these allegations separately in relation to the requirements of sections 6 and 7 of the Regulations, beginning with the second, as it calls into question the integrity of the proposal evaluation procedure as a whole.

Allegations about the dubious nature of the evaluation procedure and irregularities perceived by Menya

[16] The complainant’s perception that the process that ended in the contract being awarded to another bidder did not follow the rules (rules the complainant did not identify) and was dubious in terms of its result is mainly based on the fact that the process was, in Menya’s opinion, drawn out over 14 months from the time the request for proposal was published to the awarding of the contract, instead of the maximum six months initially announced. Menya also noted PWGSC’s delay in providing it with the summary of the evaluation of its proposal and (according to Menya) the awarding of the contract by PWGSC after and despite its request to stop the procedure after the evaluation report was received.

[17] For the reasons stated below, the Tribunal concludes that this ground for complaint was not filed within the time limits set out in section 6 of the Regulations.

[18] Section 6 of the Regulations clearly states that a complainant has 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to it to file its objection with the government institution or to file a complaint with the Tribunal. If a complainant submits an objection to the government institution within the prescribed time, it has 10 working days to file a complaint with the Tribunal after the day it has actual or constructive knowledge of the denial of relief by the government institution.

[19] As noted by the Federal Court of Appeal in Flag Connection Inc. v. Canada (Minister of Public Works and Government Services), [10] the Tribunal is entirely justified in regarding these time limits as important aspects of the regulatory scheme. Additionally, the mechanism for reviewing procurements does not provide for the possibility of accumulating grievances and presenting them once a proposal is rejected. In IBM Canada Ltd. v. Hewlett-Packard (Canada) Ltd., the Federal Court of Appeal affirmed that a bidder should not take a wait-and-see attitude and only express its objection once the procurement process is completed. [11] It stated that “[t]his is precisely the type of attitude that the procurement process and Regulations seek to discourage.” [12]

[20] There is no doubt that Menya was aware of the delays, relative to the initially expected duration, in the proposal evaluation and prior to the award of the contract since it kept receiving emails from PWGSC either indicating that the evaluation was still in progress or asking it to extend the period of validity of its bid. These emails were sent between April 2019 and January 2020.

[21] If Menya felt these extensions were problematic or indicative of irregularities in the process, it could have presented an objection on this subject when the extension requests in question were made. Alternatively, it could have filed a complaint directly with the Tribunal, well before May 7, 2020. At the latest, the Tribunal considers that, to comply with the time limit in subsection 6(1) of the Regulations, the complaint about the duration of the process should have been filed with the Tribunal within 10 days after receiving the notice informing it that it had not been awarded the contract. Menya admitted it received this notice on February 21, 2020.

[22] The Tribunal notes that, in its complaint, Menya submits that it informed PWGSC of its concerns about the process, even indicating that it had reservations about the delays and stating that this was resulting in hardship. [13]

[23] However, a review of the correspondence Menya submitted as evidence indicates that the complainant did not specifically ask PWGSC to stop extending the process and award the contract as soon as possible, nor did it clearly communicate to the government institution its grievances about the non-compliance with the rules that would result from this delay. According to the Tribunal, Menya simply shared its concerns regarding the duration of the process, without formally opposing its extension. At best, the remedy Menya sought in its emails consisted of a desire that the results of the process would be announced quickly and, alternatively, of a request for explanations for the delays.

[24] Since Menya did not question the validity of the procurement process due to the extensions PWGSC was requiring in its emails and did not concretely ask the government institution for relief, the Tribunal cannot find that Menya presented an objection to PWGSC, pursuant to subsection 6(2) of the Regulations, about the duration of the process.

[25] At any rate, even if the Tribunal did consider the October 4, 2019, email to be a validly presented objection, PWGSC’s reply that same day, in which it provided a summary explanation for the delays in the proposal evaluation, would have constituted a denial of relief by PWGSC. [14] Moreover, this email clearly stated that PWGSC needed more time to complete the process before reaching a decision. If Menya felt this explanation was insufficient or dubious and intended to challenge the validity of these delays, it should have filed its complaint on this issue with the Tribunal within 10 working days following October 4, 2019, to comply with subsection 6(2) of the Regulations.

[26] As for PWGSC’s delay in holding a feedback session and providing Menya with an evaluation debriefing, the Tribunal is of the opinion that, at the latest, Menya was aware of the facts giving rise to this allegation on April 17, 2020, when PWGSC informed it that the department was still processing the request for the detailed evaluation and expected to provide all the information at the beginning of the following week. Again, if Menya intended to challenge these delays and submit to the Tribunal that they were raising doubts about the integrity of the evaluation process, in view of the absence of an objection regarding this issue, to do so within the time limits provided in section 6 of the Regulations, it should have filed its complaint on this allegation at the latest 10 working days following April 17, 2020 (i.e. by May 1, 2020).

[27] As for the perceived irregularity due to the “hasty award [of the contract] at the end of the process despite [the complainant’s] announced challenge” [translation], Menya’s statements on this are contradicted by the facts in evidence, since the contract was not awarded to another bidder in April 2020, as submitted by the complainant, but on February 20, 2020, as indicated in the notice Menya received about the rejection of its proposal. As a result, Menya had been made aware of the contract award and knew the name of the winning bidder as early as February 21, 2020.

[28] In fact, the contract had therefore been awarded before Menya suggested to PWGSC that it suspected the contract evaluation and award process was perhaps not fair following the feedback session about the evaluation of its proposal held on April 8, 2020. [15]

[29] Although the above-noted reasons are sufficient to justify the decision not to investigate Menya’s allegations regarding the dubious nature of the evaluation process, the Tribunal considers it appropriate to briefly comment on the issue of whether the information provided with the complaint regarding the alleged irregularities discloses a reasonable indication that the procurement procedure was not conducted in accordance with the relevant trade agreements.

[30] On this point, there are clearly no documents or correspondence in the record showing that the duration of the procurement process and PWGSC’s delays in acting was attributable to any type of malfeasance. Indeed, Menya’s allegation that the entire process was biased is not supported by cogent evidence. The Tribunal finds that these allegations merely reflect Menya’s impression, considering the result and the time that passed before the announcement of the evaluation process result and PWGSC’s delay in providing detailed explanations about the evaluation.

[31] Moreover, the CFTA does not set out any specific requirement regarding the maximum duration of the procurement process, and in this case, the standard instructions, clauses and conditions included by reference in the request for proposals specify that the government institution reserved the right to ask all the bidders who had submitted responsive bids for an extension of the validity period of the bids, in a time frame of at least three days prior to the end of the validity period of the bids. Nothing indicates that PWGSC could not rely on this clause more than once.

[32] Lastly, as for the allegation regarding the delay in holding the feedback session and disclosing the detailed evaluation report, the Tribunal notes that in PWGSC’s correspondence, it is indicated that PWGSC’s authorized representative was on vacation for a few weeks after the results of the process were shared with Menya at the end of February. Moreover, the Tribunal cannot overlook the fact that, subsequently, the federal government’s activities as a whole were slowed down due to the COVID-19 pandemic and the strict lockdown protocols imposed as a result. In sum, the Tribunal concludes that the time PWGSC took to provide Menya with adequate feedback and a detailed summary of the evaluation of its proposal was not unreasonable under the circumstances.

Allegations regarding the erroneous evaluation of Menya’s proposal

[33] Menya alleges that its proposal was under-evaluated without justification and that the score the evaluators awarded does not reflect its quality, in particular with regard to the point-rated criterion on the methodology of the proposed services (technical criterion 4). According to Menya, PWGSC’s explanations about the lost points are not convincing and support its position that it was unfairly removed from an important contract it should have been awarded. Menya also challenges the evaluators’ decision not to consider one of its subcontractors’ projects in the evaluation of its offer in terms of criterion 5.d, regarding the bidder’s experience.

[34] On February 21, 2020, Menya learned that its proposal had been rejected because it had not obtained the minimum number of points to be declared responsive and move on to the financial evaluation stage. Nonetheless, the Tribunal is of the view that Menya only became aware of the facts underlying this ground of complaint on April 23, 2020, when it received the full evaluation report, including the evaluators’ notes.

[35] Indeed, it was only when Menya reviewed this document that it learned the details relating to the evaluation of its proposal, including the specific reasons it had not obtained the minimum number of points for the methodology criterion, and thereby became aware of the basis for this ground of complaint regarding the evaluation of its offer. As a result, the Tribunal concludes that with regard to this ground, Menya’s complaint of May 7, 2020, was filed within the time limits set out in subsection 6(1) of the Regulations. [16]

[36] However, for the following reasons, the Tribunal concludes that the information provided by Menya does not disclose a reasonable indication that the process for the evaluation of proposals was not conducted in accordance with the applicable trade agreements. [17] Thus, one of the conditions in section 7 of the Regulations for the Tribunal to initiate an inquiry is not met in this case.

[37] The Tribunal accords deference to the evaluators in their evaluations of the proposals of potential suppliers. [18] On this point, it stated, in PR-2005-004 (Northern Lights Aerobatic Team, Inc.), that it would interfere only with an evaluation that is unreasonable. [19] The Tribunal has previously stated that a determination will be deemed reasonable if it is supported by a tenable explanation, even if the Tribunal does not find the explanation compelling. [20]

[38] The Tribunal will substitute its judgment for that of the evaluators only if the evaluators have not applied themselves in evaluating a bidder’s proposal, have wrongly interpreted the scope of a requirement, have ignored vital information provided in a bid, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way. [21]

[39] Considering this standard of review and after weighing the evidence on record, the Tribunal finds that the information provided by Menya does not disclose a reasonable indication that PWGSC erred in the evaluation of its proposal or otherwise violated the relevant provisions of the CFTA. More specifically, the Tribunal reviewed the examples of impropriety in the evaluation alleged by Menya and is not persuaded by its arguments.

[40] The Tribunal first notes that in its complaint, Menya stated that it was only providing a few examples of problems in the evaluation and reserved the right to raise other elements at a later date. However, the Tribunal can only review the allegations presented in the complaint in order to determine whether the conditions for conducting an inquiry have been met.

[41] Regarding the examples given, the Tribunal finds that the evaluation of Menya’s proposal with regard to the relevant point-rated criteria is, contrary to Menya’s position, based on an explanation that is more than tenable and therefore reasonable.

Allegation 1.1 – Evaluation with regard to criterion 4.c

[42] Although it is not clearly stated in the complaint, Menya’s grievances with regard to the first example it provided, concerning the evaluation of its proposed methodology, refer to comments by the evaluators about criterion 4.c, for which Menya obtained a mark of zero (“weak” level according to the evaluation grid).

[43] Technical criterion 4.c was worded as follows:

4.c The Bidder should propose a project management methodology suitable to a task authorisation contract, and based on rigorous processes and recognized standards. The Bidder should describe any tailoring considered advisable in order to manage large, medium and small-scale tasks (projects): small (less than 100k$), medium (between 100k$ and 350k$) and large tasks (more than 350k$).

The Bidder should clearly describe the project’s structure with the role and responsibilities of each partner and/or sub-contractor to meet the expertise requirements for each domain or focus area. The Bidder should identify a single point of contact as being responsible for the overall management of the project. The Bidder should outline the use of software Project Management Tools for planning and schedule tracking.

. . .

[44] The RFP included an “evaluation method” to guide the evaluators in awarding points for each criterion. This evaluation method indicated what could justify awarding 10 (“strong”), 6 (“good”) or 0 points (“weak”) [22] . The method indicated the following with regard to what would justify a mark of 0 points:

0 – Weak. The Bidder did not submit information which could be evaluated and/or few or no elements have been adequately addressed and/or the information provided is incomplete or the Bidder has not demonstrated that the proposed methodology has been successfully applied to similar projects of similar size and complexity or there is no evidence of software tools used for Project Management.

There is a lack of details to appreciate how to deal with the size of authorisation tasks.

The Bidder does not provide a clear description of the structure with the role and responsibilities of each partner and/or sub-contractor to meet the expertise requirements for each domain or focus area.

The Bidder does not propose a relevant Quality Management Approach or he proposes a poor Quality Management Approach with weaknesses that cannot be easily corrected.

[45] The detailed evaluation notes [23] state that “the bidder does not provide a clear description of the project structure with the roles and responsibilities of each partner and sub-contractor, in particular regarding the key role of the project manager” [translation], a position that would have been filled by an employee of a sub-contractor. The evaluation adds that “the main bidder proposes a potentially conflicting contract manager role without clarifying which resource will fill [the role of contract manager], their experience or their expertise in the field” [translation]. The evaluation also states that “the bidder did not present the specific roles proposed by the contract manager versus the project manager” [translation].

[46] The Tribunal considers that the criticism is justified and the deduction of points is compliant with the evaluation method announced to the potential suppliers in the RFP. Although Menya’s proposal is clear with regard to the project manager (who would come from a sub-contractor) and indicates that the contract manager is Menya, it does not give the name of Menya’s representative who would fill this role, which is correctly noted in the evaluation report.

[47] The proposal does not clearly set out the roles of each partner and sub-contractor either, but merely indicates that Menya will supervise the project manager. In the end, since criterion 4.c explicitly asked for an explanation of the shared roles and responsibilities of each, the Tribunal concludes that the evaluation, on its face, is not unreasonable in this regard. Indeed, according to the prescribed evaluation method, a mark of zero could be attributed if “the information provided is incomplete” or if “the Bidder does not provide a clear description of the structure with the role and responsibilities of each partner and/or sub-contractor to meet the expertise requirements for each domain or focus area”.

[48] The evaluation report also states that the bidder “did not clearly show how it would be able to take overall responsibility for the contract and its management while delegating the key role of project manager to a sub-contractor without this causing any conflicts between the two parties” [translation]. The Tribunal finds that this observation is consistent with PWGSC’s conclusion that significant details were lacking in Menya’s proposal regarding the shared responsibilities of contract manager and project manager.

[49] Although, a priori, their titles suggest that the contract manager (Menya) has authority over the project manager’s decisions, PWGSC nonetheless determined that conflict situations could arise between the two resources, and the evaluation report explains, again, that the evaluators’ concerns about this issue involved the lack of explanations about the exact role of the contract supervisor (who was not identified) and its experience and expertise in the area compared with that of the project manager.

[50] This conclusion seems reasonable insofar as the structure proposed by Menya was not clear and unambiguous regarding the specific roles for the contract manager and the project manager. In fact, the proposal allowed some uncertainty to remain as to the identity of the resource who would be in charge of the “overall management of the project”. The bidders were required to designate such a person according to the wording of criterion 4.c.

[51] The Tribunal also notes that it is true, as the evaluators remarked, that Menya’s proposal did not provide details about the way potential conflict situations between the stakeholders would be avoided, or how the contract manager would supervise the project manager, or when or for what reason the contract manager would intervene in task authorizations to be completed in order to meet PWGSC’s needs.

[52] For example, even if the Tribunal were to accept that the project manager would answer and be accountable to Menya, as noted by the evaluators, the complaint does not indicate where, in its proposal, it is stated who would be in charge of the efforts and financial aspects of task authorization.

[53] All things considered, the Tribunal is of the opinion that PWGSC’s concern about the lack of information about the manner in which potential conflict situations between stakeholders would be avoided is legitimate, considering Menya’s proposed approach. The Tribunal notes that the bidders were required to provide a “clear description” of the structure with the role and responsibilities of each and cannot find that Menya’s proposal specifically and clearly defined the responsibilities of the contract manager and of the project manager.

[54] In short, the Tribunal is of the opinion that PWGSC did not erroneously interpret the scope of the requirements stated in the request for proposals, nor did it neglect to consider critical information provided by Menya in its proposal, in evaluating it against criterion 4.c and concluding that the information provided was insufficient. Therefore, there is no reasonable indication that PWGSC committed a reviewable error in its evaluation in this regard.

[55] As for the issue of experience and past projects in which the proposed method had been applied successfully, “at least three projects” were requested, and Menya submitted four projects. The evaluation report notes that the bid provided very little detail about the applicability of the proposed method in these projects. The evaluators also noted that two of the projects were those of a sub-contractor which was under no obligation to respect the methodology set out in Menya’s proposal.

[56] On this issue, in its complaint, Menya seems to confuse the issue of being able to present projects carried out by subcontractors, on which it focuses, and the actual deficiency noted in the evaluation, which was the failure to show that the proposed method had previously been used successfully in at least three projects. Thus, the evaluators stated that “2 of the 4 projects presented were carried out by a sub-contractor that had no obligation to follow the proposed methodology tailored by the main bidder in this proposal” [translation].

[57] Menya states in its proposal that the methodology was the same as the one it proposed [24] and, in the explanations in support of its complaint, indicated that the sub-contractor had followed a “comparable” methodology to theirs that is commonly used in the market. [25] Beyond the issue of whether the methodology used by the sub-contractor was essentially the same or a standard method, the fact remains that the evaluators noted the lack of explanations and details about these elements, and the Tribunal indeed notes that there are few explanations in the proposal.

[58] In fact, Menya merely makes a general statement, without providing any concrete examples or clarifications to show how the methodology it was proposing had been used and applied successfully by its sub-contractor in two of the four projects submitted. The Tribunal agrees with PWGSC that, at first glance, Menya should have provided further explanations to establish that the methodology used by the sub-contractor in these projects was the same as the one proposed in Menya’s offer. Again, it was the bidders’ responsibility to describe in their proposal how the proposed methodology had been applied successfully in similar large-scale, complex projects.

[59] The Tribunal does not see any grounds to question PWGSC’s conclusion about the gaps in Menya’s proposal regarding the information provided on the methodology in previous similar projects. The proposal indeed appears to be insufficient in this regard, because it is not clear upon reading the tables provided by Menya [26] that the sub-contractor’s projects Menya submitted were contracts with task authorizations. It is also not clear how the sub-contractor had successfully applied the methodology Menya proposed, when Menya was not involved in the projects. Moreover, for one of the two projects in question, the sub-contractor was not even the main service provider, but acted as sub-contractor for a competitor of Menya. [27] It is therefore doubtful, as PWGSC noted, at least for this project, that the sub-contractor was required to follow any methodology attributable to Menya.

[60] In light of the information included in Menya’s proposal, the Tribunal considers that it was reasonable, and entirely appropriate, for PWGSC to conclude that Menya had not submitted sufficient information and had not adequately addressed the elements that were clearly stated in the requirements for criterion 4.c. The information on the sub-contractor’s projects simply seemed too incomplete for the evaluators to conclude that it demonstrated that the methodology Menya proposed in the procurement that is the subject of the complaint had been applied successfully in similar projects by the complainant in the past.

[61] Moreover, the Tribunal notes that Menya is not challenging points (b) and (c) in the evaluation report regarding criterion 4.c (namely (1) that “the bidder . . . did not show how its methodology would apply in the management of a task authorization contract where several task authorizations could be required in a parallel or competing manner to serve clients in different organizational areas” [translation]; and (2) that “the bidder does not provide any indication as to whether it holds a quality standard certification” [translation]). These two problems must also have contributed to its mark of zero for this criterion.

[62] The Tribunal sees nothing unreasonable in the evaluation of Menya’s proposal or PWGSC’s conclusion with regard to these elements, as they are not undisclosed evaluation criteria (they result from a logical and reasonable interpretation of the scope of criterion 4.c and the evaluation method as worded in the request for proposals) and there is nothing to indicate that the proposal included sufficiently detailed information to obtain additional points for these elements that are relevant to the proposed methodology.

Allegation 1.2: Evaluation of criterion 5.d

[63] The second example the complainant cited involves the evaluation of its bid with regard to criterion 5.d. In general, criterion 5 addresses “corporate experience”.

[64] With regard to criterion 5.d, the RFP states the following regarding the nature of the information requested:

5.d The Bidder should describe major projects of at least three (3) person-years successfully conducted with its system/software development methodology, as described in 4.c, and the number of years it has been consistently applied.

Projects should be relevant to system architecture, software development and C2I S&T Capability Development technologies with respect to one of the following topics:

i. Service Oriented Architecture;

ii. Cloud Computing;

iii. Data Science;

iv. All Source Information Integration;

v. Data/Information analysis and fusion.

[65] For this criterion, Menya obtained a mark of 2.4, or 6 out of 10 available points before weighting based on the weight assigned to this criterion (4 points). The evaluators considered only two of the three projects Menya had submitted in response to this criterion, explaining that the third project Menya submitted had been carried out by one of its subcontractors and adding that, among other things, “it is not acceptable from a technical standpoint in the field of software development to consider that a project carried out by another company . . . was able to follow the methodology that was proposed and tailored by the main bidder in this proposal” [translation]. [28]

[66] The evaluation method included in the RFP states the following regarding a justification for a mark of 6 points, the mark Menya received:

6 – Good. The Bidder provides evidence that its methodology described in 4.c has been successfully used in two (2) major projects. The Bidder’s methodology has been applied consistently during the last five (5) years preceding the date of the bid.

[67] The answer to question 39 (amendment 005) clearly indicates that the experience of subcontractors was not applicable for criterion 5.d. [29] Indeed, amendment 005 clearly states that the experience of subcontractors would be admissible for the following criteria: 2.a, 2.c, 4.a, 4.c, 5.a, 5.b. Criterion 5.d is not included in this list.

[68] There was thus a provision that allowed PWGSC to reject the project by Menya’s sub‑contractor for the purposes of evaluating its proposal against criterion 5.d. As a result, amendment 005 constitutes a provision that “expressly provided otherwise” than the requirements of amendment 004 on which Menya relies in its complaint to allege that PWGSC should not have refused to consider its sub-contractor’s project. In other words, Menya cannot rely on paragraph 4.1.1.1 of the RFP in support of this allegation. As such, the evaluators’ decision to not take this project into consideration when evaluating whether Menya’s proposal met criterion 5.d seems reasonable considering all the terms of the RFP, even more so taking into account the evaluators’ notes about the absence of additional explanations on this subject.

[69] For this reason, there is therefore no contradiction in PWGSC’s approach in evaluating Menya’s proposal against criterion 5.d, and the Tribunal sees no reason to inquire into the decision to reject one of the projects submitted by Menya in its proposal to meet criterion 5.d.

General allegations of bias/irregular procedures regarding the evaluation

[70] As for the allegations of bias presented by Menya, the issues discussed above regarding the evaluation contradict Menya’s impressions that PWGSC favoured another bidder, and no tangible evidence of bias was submitted by Menya.

[71] Lastly, Menya included with its complaint a simulation of the points it deems it should have received instead of those it actually received. The mere fact that Menya conducted a simulated evaluation and believes that it should have obtained a near-perfect mark for all the point-rated criteria after its self-evaluation is not, in itself, an indication of bias or of an unfair evaluation by PWGSC.

DECISION

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