File PR-2022-010 Krav Maga Ottawa

Decision made Friday, May 13, 2022 Decision and reasons issued Wednesday, June 1, 2022

 

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

BY

KRAV MAGA OTTAWA

AGAINST

THE DEPARTMENT OF FOREIGN AFFAIRS, TRADE AND DEVELOPMENT

DECISION

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

 

STATEMENT OF REASONS

[1] Subsection 30.11(1) of the Canadian International Trade Tribunal Act [1] (CITT Act) provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations [2] (Regulations), 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 THE COMPLAINT

[2] This complaint concerns a request for proposal (RFP) by the Department of Foreign Affairs, Trade and Development (DFATD) for the professional services of a contractor for a two-day classroom training on personal security for DFATD employees and their dependents of 16 years and up who are being posted to or travelling overseas to higher-risk countries (solicitation 22-210533).

[3] The complainant, Krav Maga Ottawa (KMO), claims that its disqualification by DFATD for failing to comply with the mandatory criteria of the solicitation was unjustified. Specifically, KMO alleges that DFATD erroneously rejected its bid for non-compliance with a requirement that was not clearly stated in the RFP. As a remedy, KMO requests that the bids be re-evaluated and that it be compensated for lost profits and lost opportunity. KMO also requests reimbursement of its bid preparation and complaint costs and a postponement of the contract award.

[4] For the reasons set out below, the Tribunal has decided not to conduct an inquiry into the complaint.

BACKGROUND

[5] On February 15, 2022, the solicitation in question was issued with a bid closing date of March 28, 2022. [3]

[6] On March 24, 2022, KMO submitted its bid. [4]

[7] On May 3, 2022, DFATD informed KMO that its bid was deemed non-responsive, because it did not comply with all the mandatory criteria of the solicitation. Specifically, DFATD noted that KMO did not comply with mandatory criterion M4, because it failed to demonstrate using project descriptions with start and end dates that its proposed French instructor had delivered a minimum of five trainings in French. As a result of finding KMO’s bid to be non-responsive, DFATD advised KMO that its bid was disqualified. [5]

[8] On May 5, 2022, a debriefing session was held with the evaluation team for the solicitation, at the request of KMO. According to KMO, in the debriefing session the evaluators did not acknowledge that there could have been confusion with respect to mandatory criterion M4. The evaluators also did not offer KMO the opportunity to clarify its bid by identifying which courses were in English and which courses were in French and indicated that DFATD would proceed with awarding the contract to a bidder with a higher bid price than KMO. [6]

[9] On May 9, 2022, KMO filed a complaint with the Tribunal. [7]

ANALYSIS

[10] 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 4 conditions are met before it launches an inquiry:

(i) the complaint has been filed within the time limits prescribed by section 6 of the Regulations; [8]

(ii) the complainant is a potential supplier; [9]

(iii) the complaint is in respect of a designated contract; [10] and

(iv) the information provided discloses a reasonable indication that the procurement has not been conducted in accordance with the applicable trade agreements. [11]

[11] For the reasons that follow, the Tribunal finds that the complaint, which is grounded on the alleged ambiguity of a single mandatory criterion of the RFP, was not filed within the time limits prescribed by section 6 of the Regulations. In any event, even if the Tribunal were to find that KMO’s complaint in this respect was timely, the information provided by KMO does not disclose a reasonable indication of a breach of the applicable trade agreements. Indeed, the Tribunal finds that the impugned mandatory criterion was clear and sees no basis to interfere with DFATD’s evaluation of KMO’s proposal against this requirement.

The complaint is time-barred

[12] 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.

[13] As previously noted, KMO alleges that it was wrongly disqualified for failing to comply with one of the mandatory criteria of the solicitation. KMO submits that the terms of the solicitation were unclear in relation to the requirement that bidders demonstrate the ability to provide experienced instructors fluent in English and French. KMO submits that the relevant mandatory criterion did not ask that bidders clearly indicate which specific training sessions were delivered in French or English.

[14] KMO submits that, if it understood the requirement to demonstrate “required experience” to include “linguistic abilities”, it would have submitted test results of linguistic proficiency, along with other certificates demonstrating the required experience. KMO submits that, as it did not indicate the language in which its proposed instructors conducted training, all the trainings could have been conducted in French and, therefore, KMO questions why it was disqualified for lack of French experience. [12]

[15] The relevant provision of mandatory criterion M4 reads as follows: [13]

Ability to provide experienced instructors

The Bidder must propose at least two (2) instructors as per the following:

• a) One(1)instructorfluentinEnglishtoleadtheEnglishsessionswitha minimum experience of delivering 5 trainings in English.

• b) One(1)instructorfluentinFrenchtoleadtheFrenchsessionswitha minimum experience of delivering 5 trainings in French.

To demonstrate the criterion, the Bidder must submit as of bid closing date, project descriptions with start and end dates evidencing required experience of the proposed resources.

[16] On its face, this requirement clearly states that bidders had to propose at least two resources, that is, one instructor fluent in English and another instructor fluent in French, both having a minimum experience of delivering five trainings in their respective language. The RFP also clearly indicates how bidders were to demonstrate compliance with this criterion. It was incumbent upon them to submit project descriptions with start and end dates evidencing the required experience of each proposed resource. Read together, the two paragraphs of mandatory criterion M4 make it clear that, to comply with this requirement, bidders had to submit information, in the form of project descriptions with specific dates, evidencing the delivery of five training sessions in French by one of the proposed instructors. In the Tribunal’s opinion, there is therefore no doubt that bidders had to specify the language in which its proposed resources delivered the training sessions listed as proof of compliance with mandatory criterion M4.

[17] Notwithstanding the above interpretation, if KMO was unsure about the language in the RFP, it could and should have sought clarification from DFATD prior to submitting its bid. Indeed, bidders are expected to raise questions in a timely manner if they believe the RFP language to be unclear. As the Federal Court of Appeal stated in IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd., “potential suppliers are required not to wait for the attribution of a contract before filing any complaint they might have with respect to the process. They are expected to keep a constant vigil and to react as soon as they become aware or reasonably should have become aware of a flaw in the process.” [14]

[18] In that case, the Court also noted that the Tribunal has made it clear, in the past, that complaints grounded on the interpretation of the terms of RFPs should be made within 10 days from the moment the alleged ambiguity or lack of clarity became or normally ought to have become apparent. Here, to the extent that KMO considered that the RFP was ambiguous in that it did not clearly require bidders to sort the experience of its proposed instructors by language, this alleged lack of clarity was apparent on the face of tender documents. As such, KMO could not wait until the results of the evaluation were known before raising this ground of complaint. When, as in this case, it cannot be said that the bidder only became aware of the ambiguity upon learning of the results of the evaluation, there is an obligation to seek clarification of what is being required or otherwise file an objection or a complaint in a timely manner. [15]

[19] In summary, having considered the terms of the RFP, the Tribunal finds that it was clear that, to demonstrate the ability to provide experienced instructors fluent in English and French, bidders were required to provide project descriptions with start and end dates evidencing the required experience (five trainings in French and five training in English) of the proposed resources. ^[16] To the extent that KMO found any of the terms of the solicitation, including mandatory criterion M4, to be ambiguous or was unsure as to how to demonstrate compliance with the stated requirements, it should have sought clarification from DFATD no later than seven calendar days before the bid closing date, as provided for in the RFP. [17]

[20] Accordingly, the Tribunal finds that KMO should have become aware of its ground of complaint at the time that the RFP was published (i.e. February 15, 2022) or, at the latest, when KMO submitted its bid to DFATD (i.e. March 24, 2022). The Tribunal finds that, at the latest, the deadline for KMO to make an objection to DFATD or file a complaint with the Tribunal would therefore have been 10 working days from March 24, 2022. As noted above, KMO raised its allegation with DFATD for the first time much later, and its subsequent complaint to the Tribunal based on this ground was filed on May 9, 2022, which is clearly outside the time limits prescribed by section 6 of the Regulations.

[21] Based on the foregoing, the Tribunal finds that the complaint is not timely. For the reasons that follow, the Tribunal also finds that, even if the complaint had been filed in a timely manner, [18] the information provided by KMO does not disclose a reasonable indication that the procurement has not been conducted in accordance with the applicable trade agreements.

No reasonable indication of a breach of the applicable trade agreements

[22] Pursuant to paragraph 7(1)(c) of the Regulations, the Tribunal must determine whether the information provided by the complainant, and any other information examined by the Tribunal in respect of the complaint, discloses a reasonable indication that the procurement has not been conducted in accordance with any trade agreement that may be relevant.

[23] The trade agreements provide that, to be considered for contract award, a bid must conform to the essential requirements set out in the tender documentation. [19] When considering whether bids are evaluated in keeping with this requirement, the Tribunal applies the standard of reasonableness. It will generally accord a large measure of deference to evaluators in their evaluation of proposals.

[24] In this regard, the Tribunal has indicated that it will not substitute its judgment for that of the evaluators unless 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 not conducted the evaluation in a procedurally fair way. [20]

[25] It is also well established that procuring entities must evaluate a bid’s conformance with mandatory requirements thoroughly and strictly and that bidders bear the onus to respond to and meet the criteria established in a solicitation. In particular, the requirement for a bid to demonstrate compliance with all mandatory criteria cannot be abridged or left to inference. The Tribunal has similarly stated that the bidder bears the responsibility of ensuring that its bid is unambiguous and will be understood by the procuring entity. [21]

[26] Having considered the evidence with these overarching principles in mind, the Tribunal finds that there is no reasonable indication that the procurement was not conducted in accordance with the applicable trade agreements. As previously noted, the terms of the RFP were clear that, to demonstrate compliance with mandatory criterion M4, bidders were required to provide specific project descriptions, with start and end dates, for the proposed instructor fluent in French, evidencing that this individual delivered five trainings in French. There was an identical requirement for the proposed instructor fluent in English for providing a demonstration of the delivery of five trainings in English. The terms of the RFP also provided that “[b]ids which fail to meet the mandatory technical criteria will be declared non-responsive.” [22]

[27] Therefore, the Tribunal is unable to accept KMO’s argument that the RFP did not clearly request that bidders “sort” or categorize the projects submitted to demonstrate the experience of the proposed instructors by language. On the contrary, the demonstration of the delivery of specific trainings in French by the proposed instructor fluent in French, and in English for the proposed instructor fluent in English, was unequivocally required to comply with mandatory criterion M4. In other words, the Tribunal finds that there was no ambiguity, patent or latent in the terms of the RFP in this regard. Based on the wording of mandatory criterion M4, DFATD can hardly be faulted for having interpreted this requirement in the way it did.

[28] Furthermore, on the Tribunal’s review, KMO’s bid did not contain the requisite demonstration of experience for the French instructor proposed, as there was no specific information, including project descriptions with start and end dates, evidencing the delivery of five trainings in French. [23] In fact, in its complaint, KMO acknowledges that its bid did not indicate in which language its proposed instructor fluent in French or, for that matter, any of its proposed instructors, performed any of the training projects that it submitted to demonstrate that it was able to provide instructors with the requisite experience. While KMO argues that all of the training projects that it submitted could have been conducted in French, the fact remains that its bid was vague or at the very least insufficiently precise in this respect. Instead, KMO’s statement in its complaint confirms that it improperly left key factual elements to inference by the evaluators.

[29] It bears repeating that bidders bear the responsibility of “connecting the dots”. They must take care to ensure that any and all supporting documentation in their bids clearly demonstrates compliance. [24] It is also incumbent upon the bidder to exercise due diligence in the preparation of its proposal to ensure that it is unambiguous and properly understood by the evaluators. The information provided in the complaint indicates that there were material gaps in KMO’s bid which it could not reasonably expect the evaluators to fill in. Consequently, the Tribunal finds that it was not unreasonable for DFATD to disqualify KMO from the solicitation based on the information that was included in its bid.

[30] As a result, KMO’s arguments that the terms of the RFP were unclear, or that DFATD erred in evaluating its proposal and concluding that it was non-responsive, cannot succeed. For these reasons, the Tribunal must conclude that KMO’s complaint fails to disclose a reasonable indication that the procurement was conducted in a manner that is inconsistent with the applicable trade agreements.

DECISION

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