File PR-2021-081 Lambda Science Inc. d.b.a. Properate v. Department of Public Works and Government Services

Determination issued Monday, June 13, 2022 Reasons issued Tuesday, June 28, 2022

 

TABLE OF CONTENTS

DETERMINATION i

STATEMENT OF REASONS 1

POSITIONS OF THE PARTIES 3

ANALYSIS 7

COSTS 15

DETERMINATION 15

 

IN THE MATTER OF a complaint filed by Lambda Science Inc. d.b.a. Properate 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
LAMBDA SCIENCE INC. D.B.A. PROPERATE	Complainant
AND
THE DEPARTMENT OF PUBLIC WORKS AND GOVERNMENT SERVICES	Government Institution

DETERMINATION

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

Pursuant to section 30.16 of the CITT Act, the Tribunal awards the Department of Public Works and Government Services its reasonable costs incurred in responding to the complaint, which costs are to be paid by Lambda Science Inc. d.b.a Properate. In accordance with the Procurement Costs Guideline (Guideline), the Tribunal’s preliminary indication of the level of complexity for this complaint is Level 1, and its preliminary indication of the amount of the cost award is $1,150. If any party disagrees with the preliminary level of complexity or 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.

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

 

 

Tribunal Panel:	Susan Beaubien, Presiding Member
Tribunal Secretariat Staff:	Nadja Momcilovic, Counsel Zackery Shaver, Counsel Stephanie Blondeau, Senior Registrar Officer Sarah Sharp-Smith, Registrar Officer
Complainant:	Arman Mottaghi
Government Institution:	Department of Public Works and Government Services
Counsel for the Government Institution:	Alina Cartan Graham Campbell Laurence Sheedy Gosselin

Please address all communications to:

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

 

STATEMENT OF REASONS

[1] Properate (formerly known as Lambda Science Inc.) has filed a complaint concerning the rejection of a bid that it submitted in response to a request for standing offer (solicitation 23240-220001/A) (RFSO). ^[1]

[2] The RFSO was issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Natural Resources (NRCan) on August 9, 2021. ^[2]

[3] The objective of the RFSO was to seek suppliers capable of providing services and additional capacity for the Buildings and Renewables Group (BRG) of NRCan. The BRG is engaged in a wide range of research and development (R&D) pertaining to the improvement of energy performance in various buildings and structures, including furthering the application of renewable energy. These R&D activities include developing feasibility studies, carrying out data analysis, creating technical reports, and developing technical presentations and guides. ^[3]

[4] The RFSO sought proposals from prospective suppliers to provide services to NRCan by way of standing offer. The nature and purpose of a standing offer were described by the RFSO as follows:

A standing offer is an offer from a potential supplier to provide goods and/or services at pre-arranged prices, under set terms and conditions, when and if required. It is not a contract until the government issues a “call-up” against the standing offer. (See Buy and Sell web site.). ^[4]

[5] Bidders were invited to submit proposals referable to one or more “Areas of Expertise” as described in the RFSO. Annex A to the RFSO identified 32 individual Areas of Expertise ^[5] reproduced, in part, below for illustrative purposes:

Residential (AE)

1. Residential - Field assessment and monitoring of housing energy performance (whole house and specific equipment and systems)

2. Residential - Windows, Exterior Doors and Fenestrations

3. Residential - Building Envelope Research and Assessments

4. Residential – High Performance Housing

5. Residential - Energy Advisory Expertise

6. Residential - Photovoltaic System Design Expertise

Building Categories

7. Buildings - Field assessment and monitoring of building energy performance (whole building and specific equipment and systems) for Low-Rise Multi Residential Buildings

8. Buildings - Integrated Design Process

9. Buildings - Monitoring of Advanced and Renewable Energy Technologies

Communities Categories

10. Communities – Data Collection & Analysis

11. Communities – Regulatory and Policy Analysis . . .

[6] The RFSO also stated that NRCan was seeking to secure up to 3 offerors for each of the 32 Areas of Expertise. If selected, a bidder would be awarded a Standing Offer and would be eligible to be called upon to provide services within the prescribed Areas of Expertise for a period of three years. Upon issuance of a “call-up” under the Standing Offer, a contract would be issued in accordance with standard clauses and conditions prescribed by PWGSC, which are incorporated by reference within the RFSO. ^[6]

[7] Proposals from bidders were to be assessed on the basis of both technical and financial evaluation criteria. Bidders were required to identify and describe the qualifications of each individual that they proposed to supply as a resource. ^[7] A “resource” is understood to mean the expertise and labour of specific named individual(s) who would provide the services described by each Area of Expertise for which a bid was submitted.

[8] The technical criteria included certain mandatory criteria. If a bid was found to meet the prescribed mandatory criteria, it would then be evaluated and awarded points as against further criteria defined by an evaluation matrix.

[9] Following evaluation for technical merit, a bid would then be assessed for its financial aspects, i.e. price. Compliant bids with the best overall competitive scores would be successful and awarded a Standing Offer. ^[8]

[10] The RFSO was published with a closing date of October 7, 2021. ^[9] During the tender period, 19 amendments were issued in response to questions posed by various prospective bidders, including Properate. ^[10] The closing date of the tender was extended to October 28, 2021.

[11] Properate submitted a timely bid on October 27, 2021, with respect to 8 Areas of Expertise. ^[11]

[12] In total, PWGSC received 169 submissions and awarded 36 standing offers. ^[12] On March 4, 2022, PWGSC informed Properate ^[13] that it would not receive a Standing Offer, because each of its bids was non-compliant with mandatory technical requirement M3, which reads as follows:

M3 The Offeror must demonstrate, for each of the proposed resources(s), that they have a minimum of three (3) years of experience within the last ten (10) years, (measured back from date of RFSO closing) related to each Area of Expertise (AE) for which they are submitting an offer. ^[14]

[13] Properate sought a debriefing and explanation for the rejection of its bids. ^[15]

[14] PWGSC advised that the bid evaluators reached the conclusion that Properate’s resources did not have the requisite three years of experience within the past 10 years, as prescribed by M3. The work experience of each resource was expressed as a statement, but no supporting documentation, such as a curriculum vitae (CV), was provided that could enable the evaluators to verify or otherwise assess the amount of experience possessed by each individual resource. Although project experience was outlined, the chronology was limited to projects which appeared to have been completed in the years 2020, 2021 or 2022. Without project start dates, the evaluators could not assess the full extent of the work experience being claimed. PWGSC asserted that the information provided by Properate in its bid was limited and insufficient to enable PWGSC to conclude that the mandatory requirements of M3 had been fulfilled. ^[16]

[15] PWGSC’s regret letter also informed Properate that standing offers had been awarded to other bidders for each Area of Expertise for which Properate had submitted a bid. ^[17]

[16] Properate was dissatisfied with PWGSC’s explanation for the disqualification. After further discussion with PWGSC did not yield recourse, ^[18] Properate filed a complaint with the Tribunal on March 12, 2022. ^[19]

[17] The Tribunal accepted Properate’s complaint for inquiry on March 18, 2022.

[18] The successful bidders who were issued standing offers in the Areas of Expertise relevant to Properate’s bid were notified that a complaint contesting the outcome of the tender had been filed. The Tribunal informed these third parties that they could seek leave to participate in these proceedings as an intervener. ^[20] No request for leave to intervene was filed with the Tribunal.

[19] PWGSC filed a Government Institution Report (GIR) on April 19, 2022. ^[21]

[20] Properate filed comments in reply to the GIR on April 26, 2022. ^[22]

POSITIONS OF THE PARTIES

[21] In its complaint, Properate contended that PWGSC wrongly rejected Properate’s bid on the basis of missing information that PWGSC could have requested but did not. In Properate’s view, the rejection of the bid was underpinned by inadequate collection of information on the part of PWGSC, as opposed to inadequacy or unavailability of information showing that Properate’s resources had the required level of experience.

[22] Properate asserts that the evaluators’ methodology to assess compliance with M3 was unclear, as it appeared that they were looking at the completion dates for each of the projects listed and attributed to Properate’s proposed resources. According to Properate, this did not provide an accurate basis to assess Properate’s level of experience.

[23] PWGSC did ask Properate to provide project start dates for two of the eight Areas of Expertise. Properate provided that information by way of timely response.

[24] Properate stresses that the RFSO did not ask or prescribe that CVs be provided. If CVs were required to evaluate the bid, Properate says that PWGSC should have requested that information, just as it did with respect to the project start dates.

[25] Properate points to the following provision of the RFSO:

In the event that the Bidder fails to submit any of the information pursuant to M1, M2 and M3 below, the Contracting Authority may request it thereafter in writing, including after the closing date of the bid solicitation. It is mandatory that the Bidder provide the missing information within three (3) business days of the written request or within such longer period as specified by the Contracting Authority in the notice to the Bidder.

[Bold in original]

[26] As a result, Properate submits that the evaluators rejected Properate’s bid on the basis of weak methodology using evaluation criteria that was not communicated by the RFSO.

[27] The second ground of complaint advanced by Properate is that the bid evaluation was unreasonable because the evaluators failed to adopt a “merit-based” approach when interpreting the requirements of M3 during the evaluation of Properate’s bid.

[28] In essence, Properate’s position is that the evaluators were overly concerned about work experience that was measured chronologically, as opposed to quantitative project-based experience. Properate explains its argument using the following analogies:

To explain our argument we start with a hypothetical scenario:

Properate was hired by “Client A” to perform two years of work from 2017 to 2019, which the “proposed individual” successfully concluded. Properate mentions the project in “example projects” of the RFSO. Properate is then hired by “Client B” to perform another two years of work from 2019 to 2021 which the “proposed individual” also concludes. Properate mentions this project as an “example project” too.

Our understanding is that the reviewers will find this acceptable for M3 since more than 3 years of experience is present.

Let us slightly modify the scenario: What if “Client A” hired Properate around the same time as “Client B”, for two years from 2019 to 2021?

According to the debriefing process, the reviewers will not find this acceptable for M3 even though the experience gained is identical to the original scenario. The only difference between the two scenarios is that Properate has done some of the work in different calendar days.

We believe that the reviewers’ interpretation of “3 years” alludes to “1095 unique calendar days”. In the modified scenario above, they may conclude that Properate has done 2 calendar years of work.

In contrast, we suggest that 2 projects done in the span of 2 calendar years must be considered 4 years. ^[23]

[29] Properate submits that measuring experience using the metrics of “projects completed” as opposed to “years” of work better aligns with the RFSO objective of ensuring timely and cost‐effective execution of projects. Accordingly, Properate says that its bid should have been found compliant with M3.

[30] PWGSC filed a GIR comprising written submissions, copies of the evaluators’ score sheets and examiners’ notes, together with a brief affidavit clarifying and correcting a typographical error in one of the evaluation sheets.

[31] In its submissions, PWGSC argued that Properate failed to exercise due diligence in preparing its bid. As a result, the bid was incomplete and non-compliant with M3.

[32] Although PWGSC did request supplementary information from Properate, PWGSC asserts that the further information that was provided was insufficient or ambiguous. As a result, the evaluators were unable to conclude that the bid was compliant with M3. It was the lack of fully demonstrative information required by the RFSO, as opposed to the omission of CVs, that caused the evaluators to conclude that the bid was non-compliant.

[33] PWGSC asserts that its evaluation team considered the specific criteria of M3 and the information provided by Properate in conducting a thorough evaluation. As the Tribunal must apply a reasonableness standard, PWGSC says that there is no basis for the Tribunal to intervene, because Properate has not shown that its bid content, even as supplemented, demonstrated that the proposed resources met the clear criteria prescribed by M3.

[34] Further, PWGSC says that Properate was either uncertain or operated on assumptions concerning M3 and the evaluation criteria but failed to seek clarification before submitting a bid.

[35] PWGSC concedes that it has discretion to ask a bidder to provide additional information but that it is not required to do so. It was incumbent on Properate to show how its resources satisfied the clear criteria of M3, and it has done so. Accordingly, PWGSC submits that the complaint should be dismissed.

[36] In the alternative, PWGSC says that there is no basis to find that Properate would have necessarily received a Standing Offer even if its bid had been evaluated with respect to all of the technical criteria. If the complaint is upheld, PWGSC says that Properate’s remedy should be limited to the re-evaluation of its bid.

[37] Properate provided extensive submissions in reply to the GIR. It contends that the GIR paints an unfair and inaccurate view of Properate and its bid to deflect from deficiencies in the RFSO as drafted. In doing so, Properate asserts that PWGSC has overlooked or failed to address certain relevant facts.

[38] Properate says that PWGSC’s disclosure, during debriefing, that CVs could have served to satisfy M3 requirements was new information that was not mentioned in the RFSO or any of its amendments. In Properate’s view, PWGSC is now asserting that Properate should have deviated from the RFSO by providing information (CVs) that the terms of the RFSO did not explicitly call for.

[39] In the GIR, PWGSC alleged that Properate had made certain assumptions concerning how the requisite experience could be calculated to meet the M3 requirements. This included the hypothetical example of viewing work on two projects during an overlapping two-year timeframe as equivalent to four years of experience. PWGSC characterized such an outcome as defying common sense because an individual cannot obtain more than one year of work experience during a single calendar year. Properate contends that this example was intended to show that a broader or more flexible reading of M3 would better align with the intended objectives of the RFSO and thus be consistent with a common-sense approach.

[40] Properate asserts that PWGSC has unfairly portrayed Properate as a bidder that has forgotten to provide information. There was no “missing” information, as the CVs were never requested. As the RFSO does provide that CVs must be supplied in other contexts, the lack of mention of CVs in the context of M3 simply underscores that CVs were not required for the purposes of complying with M3.

[41] As PWGSC had refused Properate’s request for a bid template, Properate says it was left to follow the literal text of the RFSO.

[42] In Properate’s view, there was only a perception of missing information and PWGSC failed to address that issue by not requesting that Properate provide CVs if those were required.

[43] The reply to the GIR asserts that the GIR makes the unfounded assumption that the evaluators had “perfect knowledge” of the RFSO and that they were provided with “perfect” instructions to carry out the bid evaluation. Properate contends that such assumptions are unjustified, as the evaluators were expecting to receive information that was not requested by the RFSO. The evaluators proceeded on the premise of missing information and failed to make inquiries that were required in order to carry out a complete and contextual review of Properate’s bid.

[44] In summary, Properate submits that bid evaluation should not be premised on criteria not stated in the tender document and that the evaluators should exercise their prerogative to seek clarification as opposed to making assumptions. It argues that the Tribunal should reject the arguments in the GIR because PWGSC’s analysis “recommends diverging from the format that the RFSO had specified” does not take into account “missing facts”, as pointed out by Properate, and portrays Properate unfairly.

[45] Should the complaint be upheld, Properate agrees with PWGSC that its remedy should be limited to the re-evaluation of its bid.

ANALYSIS

[46] The Tribunal’s authority to conduct inquiries concerning procurement matters arises from the Canadian International Trade Tribunal Act (CITT Act) ^[24] and the Canadian International Trade Tribunal Procurement Inquiry Regulations (Regulations). ^[25]

[47] Subsection 30.11(1) of the CITT Act prescribes that the Tribunal may conduct an inquiry where a procurement pertains to a “designated contract” and a complaint is filed by a “potential supplier”:

30.11 (1) Subject to the regulations, a potential supplier may file a complaint with the 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.

[48] There is no dispute that the RFSO pertains to a “designated contract” and that Properate is a “potential supplier” within the meaning of section 30.1 of the CITT Act and the Regulations.

[49] The Tribunal’s jurisdiction encompasses the reviewing of the tender process to ensure that the competition has been conducted in accordance with the requirements of the trade agreements. Properate’s complaint relies upon the Canadian Free Trade Agreement (CFTA) but does not cite a particular provision of that agreement that has been alleged to have been contravened.

[50] In reviewing Properate’s complaint, the Tribunal has done so having regard to the provisions of the CFTA, which require that procurements, including the evaluation of received bids, be conducted fairly, openly and transparently, in accordance with the terms prescribed by the tender documents. ^[26]

[51] The Tribunal’s role in reviewing procurement decisions was recently summarized by the Federal Court of Appeal in Pacific Northwest Raptors Ltd. v. Canada (Attorney General) as follows:

[42] Northwest Raptors submitted that the CITT’s finding that it had not complied with mandatory criterion M2 was unreasonable because the CITT simply accepted, in paragraph 66 of its decision, that “[t]he evidence on the record demonstrates that [Northwest Raptors’] original bid was non-compliant with mandatory criterion M2”.

[43] In Saskatchewan Polytechnic Institute v. Canada (Attorney General), 2015 FCA 16, this Court stated:

[7] After carefully reviewing the record and the applicant’s written and oral submissions, we have not been persuaded that the Tribunal committed a reviewable error. The gist of the applicant’s submissions is that the Tribunal failed to properly weigh all of the information in the proposal. Yet this was not the Tribunal’s task when investigating the complaint. Its role in this type of inquiry is to decide if the evaluation is supported by a reasonable explanation, not to step into the shoes of the evaluators and reassess the unsuccessful proposal. The Tribunal approached the complaint in the correct manner and determined whether the evaluators’ conclusions were defensible in light of the published criteria. It gave appropriate deference to the evaluators and its conclusions on each of the complaints fall within the range of acceptable outcomes. While the applicant is clearly dissatisfied with the Tribunal’s findings on three of the four grounds of complaints, its task on this application was to show that the decision was unreasonable given the record before the Tribunal. This it has failed to do.

[emphasis added]

[44] It is not the role of the CITT to re-evaluate the proposal and the submissions made by the bidders, but rather to determine whether the finding made by the evaluators was reasonable. ^[27]

[52] As such, it does not fall to the Tribunal to redesign the evaluation process or to perform its own evaluation or new analysis of the bids by substituting its opinion for that of the PWGSC evaluators, as Properate submits in its reply to the GIR.

[53] At issue in this proceeding is whether PWGSC unreasonably rejected Properate’s bid because it was non-compliant with the mandatory technical criteria defined by M3 as follows:

M3 The Offeror must demonstrate, for each of the proposed resources(s), that they have a minimum of three (3) years of experience within the last ten (10) years, (measured back from date of RFSO closing) related to each Area of Expertise (AE) for which they are submitting an offer.

[54] The essence of Properate’s first ground of complaint is that PWGSC rejected Properate’s bid on the basis of a non-disclosed requirement that a CV for each resource was required in order to comply with M3. Properate did not provide CVs for the named resources that it was offering to supply.

[55] The Tribunal agrees with Properate that the RFSO did not require bidders to provide CVs to establish compliance with the mandatory technical criteria. However, M3 explicitly requires bidders to demonstrate, not merely state, that each resource has a minimum of 3 years of experience within a prescribed 10-year period.

[56] By using the word “demonstrate”, the RFSO is requiring bidders to provide some form of evidence that will corroborate the years of experience being asserted. This finding is supported by the ordinary meaning of the word “demonstrate”.

[57] Courts and tribunals may take judicial notice of the common dictionary meaning of words. ^[28] The Merriam-Webster Dictionary defines “demonstrate”, inter alia, as follows:

1 : to show clearly . . .

2 a : to prove or make clear by reasoning or evidence . . .

b : to illustrate and explain especially with many examples . . .

3 : to show or prove the value or efficiency of to a prospective buyer ^[29]

[58] It is left up to the prospective bidder to select and provide a type of corroboration for the experience being claimed, i.e. to demonstrate that the resource has actually acquired the requisite experience.

[59] The Tribunal agrees with PWGSC that such corroboration could take the form of a CV but that a CV was not required. Other forms of evidence would likewise have been acceptable so long as there was sufficient information to make clear to PWGSC that the resource had the mandatory level of experience and to enable PWGSC to verify or otherwise be satisfied of those facts. A mere statement or bald allegation falls short of the RFSO requirement to “demonstrate” the mandatory level of experience.

[60] Neither the RFSO nor the bid evaluation was defective simply because PWGSC did not provide either an illustrative or closed list of methods by which a bidder could demonstrate expertise. For practical purposes, the bidders were auditioning and competing for work and were required to demonstrate that they had the requisite expertise and qualifications measured in years of experience. It was left to each bidder to best present its qualifications as it saw fit, so long as the information was referable to the requirements prescribed by M3.

[61] The RFSO had an unusually high number of queries posed by several prospective bidders, which included some queries from Properate. This resulted in the issuance of 19 amendments to the RFSO. If Properate found the RFSO requirement in M3 to “demonstrate” expertise unclear, this was a matter to be raised during the tender process. It is well established that prospective bidders must challenge perceived defects in the tender document at the earliest opportunity. ^[30] If PWGSC does not provide a satisfactory response, the bidder has the right to file a complaint with the Tribunal. This likewise applies to the contention in Properate’s reply that PWGSC failed to provide Properate with a template for use in preparing its bid.

[62] The Regulations impose stringent deadlines with respect to the filing of procurement complaints. It is well established that a prospective complainant cannot adopt a “wait and see” position in which time is of the essence. ^[31] As such, a bidder who does not seek clarification of language, or other aspects, of a tender document that is alleged to be ambiguous, and then proceeds to submit a bid, will be unable to make that complaint later if their bid turns out be unsuccessful.

[63] A review of the portion of Properate’s bid pertaining to mandatory technical criteria reveals that the information provided was lean. As originally submitted, the bid reflected only the completion date but not the start date of various projects. Although PWGSC did request and receive project start information, it assessed Properate’s bid as non-compliant with M3, because the bid contained insufficient information to enable the evaluators to conclude that the resource had the prescribed level of actual work experience measured in years.

[64] It is quite possible that the framing of the bid content flows from Properate’s view that its expertise is best presented as a function of the overall number of projects that its resources have worked on, as opposed to the cumulative length of time spent in doing that work.

[65] Notwithstanding, it is well established that the Tribunal must defer to the evaluations so long as the evaluators have reasonably applied themselves to the task at hand and their evaluation is supported by a tenable explanation, even if the Tribunal does not find that explanation to be cogent or particularly compelling. ^[32]

[66] Applying that test, the Tribunal finds that the information provided in Properate’s bid, even when supplemented by the project start information requested by PWGSC, does not clearly demonstrate the level of expertise, measured in years, as prescribed by M3. The evaluators’ notes indicate that there was insufficient information to enable the evaluators to verify quantitative experience, measured chronologically. The Tribunal cannot find this conclusion to be unreasonable. There is no basis to intervene.

[67] The Tribunal now turns to Properate’s contention that its bid was wrongly rejected because PWGSC’s “information-gathering” process was defective. In essence, Properate argues that there is a burden on PWGSC to seek and gather information so as to “fill in” any blanks within a bid to enable the bid to align with prescribed mandatory criteria before PWGSC can reasonably find the bid to be non-compliant.

[68] The RFSO imposes the requirement that bidders are responsible for ensuring that bid content complies with mandatory requirements:

4.1.1.1 Mandatory Technical Criteria

The Offeror must comply with the following Mandatory Technical Requirements and provide the necessary documentation to support compliance.

Any offer which fails to meet any of the following Mandatory Technical Requirements will be declared non-responsive. Each requirement should be addressed separately.

Except where expressly provided otherwise, the experience described in the bid must be the experience of one or more of the following:

1. the Bidder itself (which includes the experience of any companies that formed the Bidder by way of a merger but does not include any experience acquired through a purchase of assets or an assignment of contract); or

2. the Bidder’s affiliates (i.e. parent, subsidiary or sister corporations, maximum of 2), provided the Bidder identifies and demonstrates the transfer of know-how, the use of toolsets and the use of key personnel from the affiliate for the applicable criterion; or

3. the Bidder’s subcontractors (maximum of 2), provided the Bidder includes a copy of the teaming agreements and identifies the roles and responsibilities of all parties under the agreement and how their work will be integrated.

The experience of the Bidder’s suppliers will not be considered.

In the event that the Bidder fails to submit any of the information pursuant to M1, M2 and M3 below, the Contracting Authority may request it thereafter in writing, including after the closing date of the bid solicitation. It is mandatory that the Bidder provide the missing information within three (3) business days of the written request or within such longer period as specified by the Contracting Authority in the notice to the Bidder.

. . .

4.2 Basis of Selection

To be considered responsive in any area of expertise, an offer must:

(a) meet all of the Mandatory Requirements of the bid solicitation;

(b) achieve at least the minimum pass mark under the point-rated criterion at article 3.1(d) Point Rated Criteria – Qualitative Assessment; and

(c) achieve at least the minimum overall pass mark under the point-rated criteria for each individual. Marks of one individual cannot be combined with those of another.

Offers not meeting (a) or (b) or (c) above will be given no further consideration . . . ^[33]

[69] The Tribunal has previously held that the onus falls on bidders to demonstrate that their bid addresses and fulfills the mandatory requirements of an RFP. ^[34]

[70] Significantly, the wording of the RFSO uses mandatory language (“must”) to impose requirements on bidders. On the other hand, permissive language (“may”) is used to indicate what PWGSC may or may not do. Although the terms of the RFSO do permit PWGSC to seek clarification or additional information from a bidder, the RFSO does not explicitly require PWGSC to do so. It states that PWGSC “may” seek additional information from a bidder, not that it “must” do so. The provision is discretionary.

[71] By its very nature, the exercise of discretion means that there is no fixed rule that requires or dictates a particular result. Discretion is exercised on a case-by-case basis and can be exercised differently in different situations. However, the use of discretion must be reasonable.

[72] Discretionary decisions are reviewed on a reasonableness standard. A decision is not unreasonable because arguments are available to support a different outcome or conclusion. A particular situation, such as a decision to use discretion (or not) to seek additional information and to what extent, can give rise to a range of possible outcomes. So long as the decision falls within a range of possible and rationally defensible outcomes having regard to the overall context, the decision will be reasonable. It is not unreasonable simply because a different decision maker might have assessed relevant factors differently and arrived at a different conclusion. ^[35]

[73] On Properate’s argument, the burden of ensuring that sufficient information is provided within a bid would effectively be reversed. A bidder who does not “comply with the following Mandatory Technical Requirements and provide the necessary documentation to support compliance” would not face rejection of its bid unless or until PWGSC took steps to remedy any gaps by seeking and gathering further information. Such a scenario would fetter, if not extinguish, PWGSC’s discretion by imposing an obligation to remedy incomplete bids by issuing queries to bidders. It would also place PWGSC in the position of guiding, if not directing, bid content during the tender to facilitate a bidder being able to put their best foot forward. This supportive and consultative role is incompatible with the principle that a procuring entity must remain neutral and impartial vis-à-vis all bidders in the competition.

[74] Although PWGSC does respond to bidder queries during the tender period, both the questions and answers are published and made available to all prospective bidders. Inherently, that is a different exercise than actively initiating and tailoring inquiries to seek out additional information that would supplement or enhance bid content to the extent of enabling the bid to satisfy mandatory technical criteria.

[75] Accordingly, the scope of PWGSC’s discretion to seek additional information is limited, for practical purposes. That discretion cannot be reasonably used to the extent advocated by Properate, because it would contradict or override other requirements of the RFSO that impose obligations on bidders concerning bid content.

[76] The Tribunal recognizes that Properate is both frustrated and very disappointed by the outcome of the tender and what it regards as PWGSC’s failure to provide meaningful assistance. However, the argument advanced by Properate is also problematic when viewed through the other lens of the proverbial telescope. A bidder who has meticulously adhered to the letter of the tender requirements could lose the competition to another bidder whose bid has been buttressed by the type of assistance from PWGSC that Properate says should have been provided here. In that scenario, the losing bidder could well view the procurement process as flawed, because PWGSC’s actions would be considered by that bidder to lack neutrality and impartiality. The requirement that the procurement process be transparent, neutral and impartial is a core requirement of the trade agreements.

[77] Having regard to the foregoing, the Tribunal does not find that PWGSC had a duty to gather further information from Properate to supplement bid content for conformity with the requirements of M3. Although PWGSC exercised its discretion to seek project start dates, it was not required to again exercise that discretion to the extent asserted by Properate with respect to other aspects of Properate’s bid content. PWGSC’s discretionary actions in relation to Properate’s bid meet the criteria of reasonableness, notwithstanding Properate’s arguments to the contrary.

[78] Properate also complains that its bid was unfairly evaluated because PWGSC failed to take a “merit-based” approach in evaluating the experience and expertise of Properate’s resources. It argues that a resource who works on two different projects during the same or overlapping timeframe (e.g. 2 years) can count each project as being 2 years of experience, for a total of 4 years.

[79] However, this conflates “years” of experience with “project” experience. In essence, Properate is contending that assessing experience based on the number of projects, as opposed to the number of years worked, provides an equivalent, if not superior, metric for evaluating expertise and experience.

[80] Properate’s perspective may indeed have merit, but that is not for the Tribunal to decide. The RFSO could have been framed to evaluate expertise on the basis of the number of “projects”, as opposed to the number of “years” of work. It was not.

[81] A procuring entity, such as PWGSC in this case, has the discretion to frame the terms of a tender to meet legitimate operational requirements, so long as that discretion is reasonably exercised. This extends to the prescribing of mandatory technical requirements. ^[36]

[82] In this case, the RFSO serves the purpose of identifying and prequalifying prospective suppliers having the expertise to assist the BRG as needed. The mandatory technical requirements could have been drafted to require bidders to list a number of projects completed within a certain timeframe, as opposed to requiring them to demonstrate the requisite experience using the metric of “years”.

[83] When drafting mandatory criteria, a procuring entity is not required to tailor its requirements to suit the circumstances of every or any prospective bidder. ^[37] The selected framework for evaluation of expertise may provide some bidders with an advantage, but that does not mean that the resultant competition is necessarily unfair, so long as the rules of the tender are uniformly applied to all participants. For whatever reason, PWGSC chose, presumably after consultation with NRCan, to use “years” as the evaluation matrix for expertise, as opposed to “project” experience, a hybrid of these parameters, or even explicitly deeming “years” of experience and “number of projects” to be functional equivalents.

[84] The outcome sought by Properate would have required PWGSC to evaluate at least Properate’s bid for compliance with mandatory technical requirements using a metric (project experience) that differed from the metric that was actually prescribed by the RFSO (years of experience).

[85] The objective of fair and transparent procurement is served by a process where the same rules apply uniformly to all bidders. The rules governing the tender are prescribed in advance so that all prospective bidders are aware of them. The Tribunal can review the bid evaluation process to ensure that a bid was not unfairly disqualified. However, it cannot redraft or second-guess the mandatory criteria defined by the bid documents that are used for that evaluation. Doing so would retroactively change the playing field as between the bidders.

[86] There were no prescribed criteria by which the PWGSC evaluators could assess the merit of expertise measured on the basis of quantitative project work, as opposed to the number of years of expertise, which was the prescribed metric. This is not to say that a project-based evaluation metric would have been unsuitable to assess expertise. It is simply not the metric that PWGSC and NRCan chose to adopt when preparing this particular tender.

[87] The interpretation of M3 requirements urged by Properate could be viewed as a retroactive rewriting of the mandatory requirement by allowing “project” experience to be taken as equivalent to “years” of experience, as multiple projects overlapping more than one year should, for practical purposes, be counted twice.

[88] Had PWGSC taken the approach advanced by Properate, the bid evaluation would have been open to challenge on the grounds that the evaluators had wrongly interpreted the scope of the mandatory requirements or had used undisclosed, subjective criteria to evaluate the bids. In that scenario, the evaluation criteria would have been effectively rewritten, post-tender, without full notice having been provided to all bidders, some of whom might have prepared their bids differently had M3 been drafted differently to explicitly reference project experience. Such an evaluation process could then be challenged by an unsuccessful bidder as being contrary to Article 515 of the CFTA which requires bids to be evaluated, and any contract awarded, solely in accordance with the evaluation criteria specified in the tender notices and tender documentation.

[89] Properate’s allegations of unfairness could only be tested or assessed by having PWGSC file a GIR. Upon reviewing the GIR, including the bid evaluation sheets for Properate and other bidders, the Tribunal can find no basis to conclude that the evaluators failed to apply themselves or that the evaluation was conducted unfairly. The evaluators conducted the evaluation using a grid or spreadsheet and reached a decision referable to each M3 requirement for each resource and providing an explanatory note in those instances where the requirements of M3 were not met.

[90] Having regard to all circumstances, the Tribunal cannot find that the evaluation process, or its outcome, was unreasonable.

[91] For all of the above reasons, Properate’s complaint is dismissed.

COSTS

[92] The Tribunal is conferred with a broad statutory discretion concerning the allocation of costs in a procurement dispute. ^[38]

[93] As a general principle, costs usually follow the event. ^[39] As PWGSC has been successful and has requested costs, the Tribunal provisionally awards PWGSC its reasonable costs for this proceeding.

[94] The issues in dispute were focused and not unduly complex. Accordingly, the Tribunal’s preliminary determination is that costs of this inquiry fall within Level 1 of the Tribunal’s Procurement Costs Guideline.

[95] The Tribunal’s findings with respect to costs are both preliminary and provisional. The parties may make submissions on costs within 15 days of the date of this statement of reasons. Upon receipt and consideration of submissions from the parties, the Tribunal will render a final order with respect to costs.

DETERMINATION

[96] For the above reasons and pursuant to subsection 30.14(2) of the CITT Act, the Tribunal determines that the complaint is not valid.