File PR-2021-056 Denis Belanger v. Patented Medicine Prices Review Board

Determination and reasons issued Monday, March 7, 2022

 

TABLE OF CONTENTS

DETERMINATION i

STATEMENT OF REASONS 1

SUMMARY OF THE COMPLAINT 1

BACKGROUND 1

Procurement process 1

Complaint proceedings 2

GROUNDS OF COMPLAINT NOT ACCEPTED FOR INQUIRY 3

Ground 1: Disclosure of confidential bidder information 3

Ground 2: Discriminatory and non-transparent administration of the financial bid 3

Ground 3: Discriminatory administration of the technical bid, as one of the bidders had previously prepared a report for the same drug and indication for which bidders now had to submit a sample report under point-rated evaluation criterion R1 4

Ground 5: Discriminatory administration of the technical bid with respect to DB’s score on point‑rated evaluation criterion R5 5

ANALYSIS: GROUND OF COMPLAINT ACCEPTED FOR INQUIRY 6

R1 – Bidder’s sample reports 6

R3 – Bidder’s resource team 8

R4 – Bidder’s resource capacity 9

Conclusion 10

COSTS 10

DETERMINATION 10

APPENDIX I 11

 

IN THE MATTER OF a complaint filed by Denis Belanger pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act;

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
DENIS BELANGER	Complainant
AND
THE PATENTED MEDICINE PRICES REVIEW BOARD	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. Each party will bear its own costs in this matter.

 

 

Tribunal Panel:	Randolph W. Heggart, Presiding Member
Tribunal Secretariat Staff:	Emilie Audy, Counsel Matthew Riopelle, Registrar Officer Stephanie Blondeau, Registrar Officer
Complainant:	Denis Belanger
Government Institution:	Patented Medicine Prices Review Board
Counsel for the Government Institution:	Isabel Jaen Raasch Tim Jolly

Please address all communications to:

The Deputy Registrar
Telephone: 613-993-3595
Email: citt-tcce@tribunal.gc.ca

 

STATEMENT OF REASONS

SUMMARY OF THE COMPLAINT

[1] Denis Belanger (DB) filed a complaint with the Canadian International Trade Tribunal pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act [1] (CITT Act), concerning a request for proposal (RFP) (solicitation SN21002) issued by the Patented Medicine Prices Review Board (PMPRB) for scientific literature search services.

[2] DB claimed that the procurement was conducted in a discriminatory and non-transparent manner and that the PMPRB improperly disclosed confidential information. More specifically, DB raised the following grounds of complaint:

(1) Disclosure of confidential bidder information;

(2) Discriminatory and non-transparent administration of the financial bid;

(3) Discriminatory administration of the technical bid, as one of the bidders had previously prepared a report for the same drug and indication for which bidders now had to submit a sample report under point-rated evaluation criterion R1;

(4) Discriminatory and non-transparent evaluation of the technical bid with respect to DB’s scores on point-rated evaluation criteria R1 (sample reports), R3 (resource team) and R4 (resource capacity); and

(5) Discriminatory evaluation of the technical bid with respect to DB’s score on point‑rated evaluation criterion R5 (resource management approach).

[3] As a remedy, DB requests that the designated contract be terminated and awarded to DB, and that it be awarded a compensation for lost profit in the amount of 50 percent of the total value of the contract.

[4] On December 14, 2021, the Tribunal decided, pursuant to subsection 30.13(1) of the CITT Act, to conduct an inquiry into a portion of the complaint, limiting its inquiry to ground 4, which relates to the scoring of evaluation criteria R1, R3 and R4.

[5] The Tribunal conducted the inquiry into the validity of the complaint as required by sections 30.14 and 30.15 of the CITT Act. For the reasons set out below, the Tribunal finds that the complaint is not valid.

BACKGROUND

Procurement process

[6] The RFP was published on Buyandsell.gc.ca ^[2] on May 27, 2021, with a closing date of July 9, 2021, at 2:00 p.m. EDT. An addendum to the RFP was published on June 23, 2021.

[7] On September 22, 2021, DB received an email from the PMPRB, advising it that two contracts would be awarded to the successful bidders, Centre intégré universitaire de santé et de services sociaux and the Ottawa Valley Regional Drug Information Service (OVRDIS). ^[3]

[8] On September 24, 2021, DB emailed the PMPRB and raised concerns with respect to the financial component of the RFP, as well as DB’s scoring. ^[4] The same day, the PMPRB replied that a written debrief would be sent to DB the following week.

[9] On October 1 and 8, 2021, DB followed up with the PMPRB regarding the concerns raised in its email dated September 24, 2021.

[10] On October 15, 2021, the PMPRB submitted to DB a written debrief related to its bid. ^[5]

[11] On October 18, 2021, DB emailed the PMPRB, requesting the scoring for the different sections of its bid. ^[6] The same day, a revised written debrief with the scoring was submitted to DB.

[12] On November 1, 2021, DB made an objection by email, asking that the PMPRB issue a new solicitation for the requirement. ^[7] Again, DB raised concerns with, among other things, the financial component of the RFP as well as the scoring of its technical component of the bid. On November 3, 2021, the PMPRB acknowledged receipt of the objection. ^[8]

[13] On November 5, 2021, DB emailed the PMPRB and raised an additional concern with respect to evaluation criterion R1, which required bidders to submit a sample report for a pre-selected drug (Imfinzi), which one of the bidders had previously done.

[14] On November 25, 2021, the PMPRB replied to DB’s concerns. ^[9]

Complaint proceedings

[15] On December 7, 2021, DB filed its complaint with the Tribunal. The complaint was accepted in part for inquiry on December 14, 2021. The Tribunal decided to limit its inquiry to ground 4 as identified in the complaint, which relates to the scoring of evaluation criteria R1, R3 and R4. ^[10]

[16] On December 16, 2021, DB requested that the Tribunal reconsider its decision not to conduct an inquiry with respect to grounds 1, 2 and 3 of the complaint. ^[11] On December 17, 2021, the Tribunal sent a letter to DB, advising it that the decision was final, since it had disposed of those elements of the complaint and that, by law, the Tribunal was not permitted to reconsider its decision, except in certain exceptional circumstances. ^[12]

[17] On January 10, 2022, the PMPRB filed a Government Institution Report (GIR). ^[13]

[18] On January 18, 2022, DB filed its comments on the GIR. ^[14]

[19] On January 20, 2022, the PMPRB filed a reply to DB’s comments on the GIR. ^[15] The same day, DB replied to the PMPRB’s comments. ^[16]

[20] 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.

GROUNDS OF COMPLAINT NOT ACCEPTED FOR INQUIRY

[21] DB raised five grounds of complaint. As indicated above, the Tribunal decided to limit its inquiry to ground 4. Therefore, all other grounds of complaint were not accepted for inquiry.

Ground 1: Disclosure of confidential bidder information

[22] DB claims that information contained in the unsuccessful bidders’ regret letters allowed them to calculate the hourly rate charged by the two successful bidders. ^[17] DB submits that this is a violation of the applicable trade agreements, as it impedes fair competition between suppliers and discloses information which is confidential.

[23] This ground of complaint is speculative at best. DB is not alleging that its own confidential information was disclosed. It is surmising, first, that the information disclosed pertaining to the bidders that were awarded contracts would be confidential with no evidence presented to support that position and, second, that those bidders proposed prices in the same manner as DB and that their hourly rates could therefore be calculated. Finally, unless specifically authorized to do so, DB does not have standing to bring a complaint on behalf of the other bidders.

[24] Therefore, the Tribunal is unable to consider this ground of complaint and, even if it could, it would still not disclose a reasonable indication of a breach of the relevant trade agreements, which is one of the conditions that must be met under section 7 of the Canadian International Trade Tribunal Procurement Inquiry Regulations [18] (Regulations) in order to conduct an inquiry.

Ground 2: Discriminatory and non-transparent administration of the financial bid

[25] As a second ground of complaint, DB raises concerns about the financial component of the RFP. ^[19] On May 31, 2021, DB asked the PMPRB by email the estimated value of the contract for purposes of preparing the financial portion of the bid. On June 1, 2021, the PMPRB replied that it does not provide the value of contracts.

[26] Pursuant to subsections 6(1) and (2) of the Regulations, a potential supplier must either raise an objection with the procuring government institution or file a complaint with the Tribunal no later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the supplier. Further, a potential supplier that has made a timely objection to the procuring government institution and is denied relief 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.

[27] In this case, DB was aware of the manner in which its financial bid would be evaluated (the basis for this ground) as early as May 31, 2021, when it questioned the PMPRB about the absence of an estimated contract value in the RFP. The next day, the PMPRB confirmed that it would not provide that information. As such, a complaint would have had to have been filed within 10 working days after DB having been denied relief.

[28] In light of the above, the Tribunal finds that the second ground of complaint was filed beyond the deadline set out in the Regulations and, therefore, cannot be further considered by the Tribunal.

Ground 3: Discriminatory administration of the technical bid, as one of the bidders had previously prepared a report for the same drug and indication for which bidders now had to submit a sample report under point-rated evaluation criterion R1

[29] As a third ground of complaint, DB argues that evaluation criterion R1 required that bidders submit a sample report for a pre-selected drug (Imfinzi) and indication, ^[20] which gave an unfair advantage to OVRDIS, a bidder that had previously prepared a report for this drug. ^[21]

[30] When a ground of complaint concerns the terms of a solicitation, the Tribunal has previously considered the date on which a bidder obtains a copy of the solicitation documents to be the date on which the bidder becomes aware of the basis of that complaint. ^[22] Without evidence to the contrary, bidders are generally considered to have obtained a copy of the solicitation on the date of publication. ^[23] Similarly, the Tribunal considers that, where the complaint concerns an amendment to the terms of a solicitation, bidders are generally considered to have obtained a copy of the amendment on the date of its publication. [24]

[31] In this case, the RFP was published on May 27, 2021. The PMPRB published amendment 01 on June 23, 2021, in order to answer questions from potential bidders with respect to evaluation criterion R1 ^[25] .

[32] As such, in order to meet the prescribed time limits, DB would have been required to file its complaint regarding this ground of complaint with the Tribunal or object to the government institution within 10 working days of May 27, 2021, or, at the latest, within 10 working days of June 23, 2021. Accordingly, the Tribunal finds that this ground of complaint is time-barred and, therefore, cannot be further considered.

Ground 5: Discriminatory administration of the technical bid with respect to DB’s score on point‑rated evaluation criterion R5

[33] The PMPRB determined that DB’s proposal with respect to evaluation criterion R5 was incomplete. According to DB, the PMPRB could have requested that it provide the missing part of its proposal. ^[26]

[34] The Tribunal disagrees. In fact, it would have been contrary to the trade agreements if the PMPRB had done this. The onus was on DB to ensure that its proposal was complete and met all the mandatory criteria. The Tribunal has repeatedly held that the bidder bears the onus of ensuring that its proposal clearly demonstrates that it meets the criteria set out in the solicitation documents. ^[27]

[35] Although section 4.1 of the RFP permitted the PMPRB to seek clarification or verification from bidders regarding their bids or any or all information provided therein, this cannot be interpreted in a manner that would allow a bidder to submit a missing portion of its bid after bid closing. This would constitute “bid repair”, a practice that is specifically prohibited by the trade agreements. ^[28]

[36] The Federal Court of Appeal, in Francis H.V.A.C., described the rule against bid repair as follows:

[22] . . . bidders cannot make material corrections or amend their bids after the bid’s closing date. The requirements found in an RFP must be met at the time of bid closing, and a procurement entity is not entitled to consider information submitted after that date. “Bid repair”, as it has come to be known, is considered to be an indirect way of allowing a late bid. The rationale behind the rule against bid repair is easy to understand: allowing a bid to be modified or altered after the fact would undermine the bidding process itself, as it would allow a change to be made to a bid at a time when the bids of others are known or could be known . . . . ^[29]

[37] The Tribunal concludes that there is no reasonable indication that the PMPRB’s evaluation of DB’s bid with respect to evaluation criterion R5 was not conducted in accordance with the requirements of the relevant trade agreements.

ANALYSIS: GROUND OF COMPLAINT ACCEPTED FOR INQUIRY

[38] 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. 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.

[39] Section 11 of the Regulations specifies that the Tribunal must determine whether the procurement was conducted in accordance with the requirements set out in the applicable trade agreements, which, in this instance, include the Canadian Free Trade Agreement (CFTA). [30]

[40] The relevant provisions of the CFTA are articles 502(1), 515(1), 515(4), 516(1) and 517(1). The text of each of these provisions can be found in Appendix I to these reasons.

[41] The ground of complaint accepted for inquiry is related to the scoring of evaluation criteria R1, R3 and R4.

R1 – Bidder’s sample reports

[42] Evaluation criterion R1 reads as follows: ^[31]

The Bidder should provide:

1. the sample reports used as part of the delivery of services in the six (6) projects proposed in M1; and

2. A sample report prepared using PMPRB format, as shown in Annex A1: Report Template. This sample report is for a pre-selected drug and indication as detailed below:

i. For Imfinzi for treatment of locally advanced or metastatic urothelial cancer (information up to 2018) that has progressed on platinum-based therapy.

For the six (6) reports in R1.a) the Bidder should demonstrate the similarity of these project’s reports to the requirement as stated in the Statement of Work. It is the Bidder’s responsibility to show how these reports are similar to what is required within the Statement of Work.

For the sample report in R1. b) The Bidder should demonstrate an understanding of the requirements and report accuracy within the sample report. It is the Bidder’s responsibility to show all information for all sections of the sample report using the PMPRB format (Annex A1: Report Template).

[43] DB asserts that the PMPRB failed to evaluate its proposal in accordance with the terms of evaluation criterion R1.

[44] In essence, the PMPRB found that DB’s sample reports could have been better explained (i.e. “Better explanation on dosing differences”) or clarified (i.e. “since soy lipid emulsion was the comparator used in trials, it should have been clarified further in the document”; “the chemo related comparators could have been further clarified, and a discussion of gemcitabine and nab-paclitaxel detailed”) ^[32] and that some information seemed mis-labelled or was missing altogether.

[45] The Tribunal can review the evaluation process to ensure that the bid evaluation was carried out reasonably and fairly. ^[33] In general, the Tribunal will only interfere with an evaluation that is unreasonable. ^[34] In Samson & Associates, the Tribunal stated the following:

The Tribunal typically accords a large measure of deference to evaluators in their evaluation of proposals. Therefore, the Tribunal has repeatedly stated that it will interfere only with an evaluation that is unreasonable and will substitute its judgment for that of the 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. In addition, the Tribunal has previously indicated that a government entity’s determination will be considered reasonable if it is supported by a tenable explanation, regardless of whether the Tribunal itself finds that explanation compelling. ^[35]

[Footnotes omitted]

[46] In this case, the Tribunal is of the view that the PMPRB’s evaluation of the sample reports was reasonable and took into account the entire portion of DB’s proposal dedicated to this criterion. The comments made by the PMPRB relate directly to the sample reports provided and do not seem unreasonable and they do not indicate that undisclosed criteria were used in the assessment. By their nature, evaluations of this type are to some degree subjective, and the Tribunal can assess only the reasonableness of the work by whether the PMPRB fairly applied the criteria. That seems to be the case here.

[47] In light of the foregoing, the Tribunal finds that the evaluation of DB’s sample reports was reasonable and in accordance with the terms of the RFP. [36]

R3 – Bidder’s resource team

[48] Evaluation criterion R3 reads as follows: ^[37]

For the two (2) resources proposed in M.3, the Bidder should demonstrate:

1. The resource’s clinical pharmacy experience in excess of the five (5) years of demonstrated experience in M.3;

2. The resource’ experience providing research, analysis and reporting of information of scientific literature in excess of the two (2) years of demonstrated experience in M.3;

3. Each resource’s demonstrated experience providing research, analysis and reporting of information similar/relevant to the tasks in the Statement of Work and incorporates:

1. Drug reviews;

2. Critical appraisal and literature evaluation;

3. Adherence to Best practices;

[49] DB’s primary argument is that the PMPRB incorrectly assessed the proposed resources’ “clinical pharmacy experience”.

[50] DB disputes the evaluation committee’s technical assessment of Mr. Denis Belanger’s clinical pharmacy experience and further claims that the evaluation committee’s finding lacked transparency as to what constitutes such experience. DB submits that the first of the two resources submitted as part of its bid is Mr. Belanger and that he has over 17 years of clinical experience. According to DB, since the Ontario College of Pharmacists considers drug information activities as “Patient Care”, all the time Mr. Belanger spent doing such activities should be considered as qualifying clinical pharmacy experience.

[51] The PMPRB claims that that the evaluation committee’s scoring of evaluation criterion R3 was reasonable. According to the PMPRB, the committee evaluated the clinical pharmacy experience requirement based on its collective experience and shared expertise as professionals in this field and what it believed would be a common understanding of that term among professionals in the field and not based on a specific definition or practice in a specific Canadian jurisdiction. ^[38]

[52] The term “clinical pharmacy experience” was not defined in the RFP. While it would have been more transparent had it been defined, this should have been evident to DB upon reviewing the RFP and technical requirements prior to bidding. [39] Therefore, the Tribunal must determine if PMPRB’s evaluation was reasonable, given that there was no definition to rely on for guidance.

[53] The Tribunal notes that the PMPRB used its knowledge of what clinical pharmacy experience meant to professionals in the field. The PMPRB determined that drug information services in a non-clinical environment did not qualify as clinical pharmacy experience. ^[40] The Tribunal finds that the committee’s explanation was reasonable in the circumstances.

[54] DB presented some information from the Ontario College of Pharmacists and argues that it demonstrates that DB’s experience in doing drug information activities qualified as clinical pharmacy experience. In reviewing the literature as a whole, the Tribunal cannot reach the same conclusion. Particularly telling is a passage that seems to contradict what DB attempted to convey, which reads as follows:

Provide information and education related to drug use, in the course of practicing the profession, directly to patients or their agents ^[41]

[55] This passage seems to imply that the drug information services must be provided directly to patients or their agents to qualify in the Part A category. Based on the information on the record, it is not clear to the Tribunal that DB provided such services directly to patients or their agents.

[56] Overall, the Tribunal finds that the PMPRB made a reasonable assessment of DB’s clinical pharmacy experience based on the information DB submitted in its proposal.

R4 – Bidder’s resource capacity

[57] Evaluation criterion R4 reads as follows: ^[42]

The Bidder should describe its capacity to provide multiple resources by identifying up to two (2) additional proposed resources that meet the minimum qualifications of M3 and are assessed against the following criteria:

1. The resource’s clinical pharmacy experience in excess of the five (5) years of experience in M.3;

2. The resource’ experience providing research, analysis and reporting of information of scientific literature in excess of the two (2) years of experience in M.3;

3. Each resource’s experience providing research, analysis and reporting of information similar/relevant to the tasks in the Statement of Work and incorporates:

1. Drug reviews;

2. Critical appraisal and literature evaluation;

3. Adherence to Best practices;

[Emphasis added]

[58] DB disputes the PMPRB’s technical assessment of the team’s clinical pharmacy experience, as one additional proposed resource (Dr. E.R.) has 15 years of clinical practice experience and another (Dr. B.D.) has 6 years of clinical experience as a physician.

[59] The PMPRB submitted that the evaluation committee’s scoring of evaluation criterion R4 was reasonable, as the criterion clearly made reference to the “the resource’s clinical pharmacy experience”. In the PMPRB’s view, Dr. B.D.’s experience as a physician could not be considered as pharmacy experience.

[60] The Tribunal agrees with the PMPRB. The requirement specifically called for clinical pharmacy experience and points would be awarded for experience in excess of the five‑year minimum level of experience. Therefore, the Tribunal finds the assessment of the PMPRB in relation to these two resources and the points awarded in relation to evaluation criterion R4 to be reasonable and founded in the assessment criteria specified under that criterion.

Conclusion

[61] In light of the foregoing, the Tribunal finds that DB’s complaint on ground 4 is not valid.

COSTS

[62] Section 30.16 of the CITT Act allows the Tribunal to award costs to complainants or government institutions. In determining whether costs should be awarded to the successful party in this case, the Tribunal considers that, although it concluded that the complaint was not valid for the reasons given above, the PMPRB did not request to be awarded its reasonable costs in this matter. Therefore, in these circumstances, no costs will be awarded.

DETERMINATION

[63] Pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid. Each party will bear its own costs in this matter.

 

APPENDIX I

Article 502: General Principles

1. Each Party shall provide open, transparent, and non-discriminatory access to covered procurement by its procuring entities.

. . .

Article 515: Treatment of Tenders and Award of Contracts

Treatment of Tenders

1. A procuring entity shall receive, open, and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process, and the confidentiality of tenders.

. . .

Evaluation and Award of Contract

4. To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirements set out in the tender notices and tender documentation and be from a supplier that satisfies the conditions for participation.

. . .

Article 516: Transparency of Procurement Information

Information Provided to Suppliers

1. A procuring entity shall promptly inform participating suppliers of its contract award decisions, and, on the request of a supplier, shall do so in writing. Subject to Article 517, a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select its tender.

. . .

Article 517: Disclosure of Information

1. Notwithstanding any other provision of this Chapter, a procuring entity shall not provide to any particular supplier information that might prejudice fair competition between suppliers.