File PR-2022-042 Ramida Enterprises Ltd. v. Department of the Environment

Determination issued Monday, January 9, 2023 Reasons issued Tuesday, January 24, 2023

 

TABLE OF CONTENTS

DETERMINATION i

STATEMENT OF REASONS 1

OVERVIEW 1

FACTUAL BACKGROUND 1

Ramida’s complaint 2

Government Institution Report 3

POSITIONS OF THE PARTIES 6

Ramida 6

ECCC 6

INTERLOCUTORY ISSUES 8

ANALYSIS 9

COSTS 16

 

IN THE MATTER OF a complaint filed by Ramida Enterprises Ltd. 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
RAMIDA ENTERPRISES LTD.	Complainant
AND
THE DEPARTMENT OF THE ENVIRONMENT	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. With respect to costs, the Tribunal’s preliminary determination is that the parties should bear their own costs, in the circumstances of this case. If either party disagrees with the preliminary disposition with respect to costs, it may make submissions to the Tribunal. The Tribunal reserves jurisdiction to issue a final order with respect to costs.

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

 

Tribunal Panel:	Susan Beaubien, Presiding Member
Tribunal Secretariat Staff:	Emilie Audy, Counsel Geneviève Bruneau, Registrar Officer Rekha Sobhee, Registrar Officer
Complainant:	Ramida Enterprises Ltd.
Government Institution:	Department of the Environment
Counsel for the Government Institution:	Samantha Hargreaves Brendan Morrison Veronica Tsou

Please address all communications to:

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

 

STATEMENT OF REASONS

OVERVIEW

[1] Ramida Enterprises Ltd. (Ramida) has filed a complaint[1] concerning a solicitation issued by the Department of the Environment (ECCC) for rehabilitation of a forestry road in Halfmoon Bay, Sechelt, British Columbia. Ramida asserts that its bid was wrongly disqualified by ECCC and that it should have been awarded the contract because Ramida submitted a bid with the lowest price.

FACTUAL BACKGROUND

[2] The request for proposal (RFP) was issued under solicitation 5000067016 and published on June 3, 2022, with a closing date of June 30, 2022.^[2] Three amendments to the RFP were issued, which responded to the questions posed by prospective bidders. The closing date of the tender was extended to July 7, 2022.^[3]

[3] The objective of the work to be performed by the winning bidder was described as follows:

Environment and Climate Change Canada (ECCC) is preparing to install a new Weather Radar station near Sechelt, British Columbia. The site is located at the top of Halfmoon Peak and is accessed via an existing forest service road.

A recent on-site assessment of the access road identified several areas of concern for passage of the construction machinery required to build the Weather Radar station, as well as the need to create a cleared and graded construction area, with laydown space, for the station construction.^[4]

[4] The RFP prescribed certain mandatory requirements. A responsive bid meeting those requirements and having the lowest price for the described scope of work would be recommended for a contract award.^[5]

[5] The mandatory requirements were described as follows:^[6]

Completed Projects

The bidder must provide a list of two projects they have worked on in the past that are of a similar nature and value. This will be evaluated based on a pass/fail basis. Failure to complete this form will result in elimination from the tender process.

 

I/We have, in the past, completed the following two projects which are similar in nature and scope of work to the project for which the present offer is made:

PROJECT NO.

DESCRIPTION

LOCATION

YEAR

COST

CONTACT’S NAME &TELEPHONE

[6] Two bidders submitted proposals, one of which was Ramida.[7]

[7] Shortly after the closing date, Ramida contacted ECCC on July 8, 2022, and asked to be given informal results of the tender.^[8]

[8] When a reply was not promptly received, Ramida issued several follow-up requests by way of email.^[9] ECCC provided the informal results to Ramida on July 21, 2022. Those results indicated that two bids had been submitted in response to the RFP and that Ramida was the low bidder.[10]

[9] On August 8, 2022, ECCC advised Ramida that no contract would be issued for the solicitation. Ramida’s bid was not considered for contract award because the bid did not fulfill the mandatory criteria. The prior projects listed in Ramida’s bid were not considered to be projects of “similar nature and value” as the work being tendered.[11]

[10] Ramida strongly disagreed with this assessment of its bid and asked for a debrief. It advised ECCC that its company had never been previously disqualified for work based on lack of prior experience. Ramida further asserted that the nature of the work required by ECCC was not unusual to Ramida, in terms of both scope and value. It provided ECCC with a synopsis of 39 additional projects previously completed by Ramida and asked for reconsideration.^[12]

[11] On August 19, 2022, ECCC apologized for the delay in responding to Ramida’s request for reconsideration and indicated an intention to provide a substantive response shortly.^[13] Ramida filed a complaint with the Canadian International Trade Tribunal on the same day.

Ramida’s complaint

[12] In its complaint, Ramida contended that ECCC had not been transparent and had failed to provide Ramida with an opportunity to comment or respond before deeming its bid to be non‐compliant, contrary to the Standard Acquisition Clauses and Conditions (SACC) Manual, in the section titled Real Property Contracting, subsection R2710T GI11, subparagraph 5.

[13] In Ramida’s view, the RFP was directed to straightforward excavation work and no mandatory criteria were necessary, especially for an experienced contractor such as Ramida. Moreover, in Ramida’s view, the RFP failed to provide a clear description of the evaluation criteria that would be used, and the evaluation process was unduly stringent.

[14] Further, Ramida expressed frustration at what it perceived as a lack of prompt communication by ECCC and asserted that this contravenes Article 203.2 of the Canadian Free Trade Agreement (CFTA).

[15] By way of remedy, Ramida seeks award of the contract, as it was the lowest bidder.^[14]

[16] ECCC subsequently provided a detailed rationale to explain why Ramida’s bid did not meet the mandatory criteria.^[15]

[17] Ramida filed this complaint with the Tribunal on August 19, 2022, and filed additional materials on August 25, 2022, to complete its complaint.^[16] On September 1, 2022, the Tribunal decided to accept the complaint for inquiry.^[17] The Tribunal also issued an order, pursuant to subsection 30.13(3) of the Canadian International Trade Tribunal Act[18] (CITT Act), directing that award of any contract for the RFP be postponed, pending its determination of the merits of Ramida’s complaint.[19]

[18] On September 2, 2022, Ramida notified the Tribunal that the procurement had been reposted on August 29, 2022, as solicitation K3F51-230283/A (Halfmoon Bay Forestry Road Rehab) with a closing date of September 8, 2022. Ramida expressed its ongoing interest in obtaining the contract for the project and asked that the Tribunal’s postponement order be extended to cover the new solicitation K3F51-230283/A.[20]

[19] In view of the reposting of the solicitation, ECCC took the position that the Tribunal’s postponement order was moot and should be rescinded.[21]

[20] On October 26, 2022, the Tribunal dismissed the requests made by both parties with respect to the postponement order.^[22]

Government Institution Report

[21] ECCC requested an extension of time, on consent, to file the Government Institution Report (GIR). The Tribunal granted the extension and also extended the timeframe for issuing its determination of Ramida’s complaint to 135 days, pursuant to paragraph 12(1)(c) of the Canadian International Trade Tribunal Procurement Inquiry Regulations (Regulations).^[23]

[22] The GIR was submitted to the Tribunal on October 7, 2022.^[24] It not only comprises written submissions by ECCC but also includes affidavits from Shawn Davis and Rick Czepita.

Affidavit of Shawn Davis

[23] Shawn Davis is Senior Manager of Procurement at ECCC and is responsible for issuing invitations to tender, requests for proposal and other procurement requests. He had carriage of the procurement at issue.

[24] In his affidavit,^[25] Shawn Davis described the events and conduct of the procurement at issue, including the steps that were taken to prepare and issue the solicitation.

[25] Following the close of the tender, two bids were received, including that of Ramida. Pricing on both bids exceeded ECCC’s spending authority for this particular project,^[26] so Shawn Davis sought out what he described as additional support for the project. Pending confirmation that the project would be supported, he deferred communications with the bidders. Shawn Davis also testified that he was very busy during this timeframe with both business and personal matters.

[26] Shawn Davis described receiving the bid evaluation results from the evaluator and subsequent correspondence with Ramida, including transmission of the regret letter and the follow‐up, by way of the debrief requested by Ramida.

[27] As the other bidder was also found to have submitted a non-compliant bid, Shawn Davis stated that no contract was awarded. A new solicitation was issued for the procurement, which operated to cancel and supersede the RFP at issue.

Affidavit of Rick Czepita

[28] Rick Czepita is Assistant Project Manager at ECCC and was responsible for evaluating the bids received in response to the RFP in question.

[29] In his affidavit,^[27] Rick Czepita explained that the RFP was directed to work being undertaken for the Canadian Weather Radar Replacement Program (CWRRP) and provided the following background:

5. The CWRRP is a federal initiative to replace and increase the number of weather radars within Canada’s radar network. The CWRRP will greatly improve Canada’s meteorological capabilities, including by providing more precise weather warnings, extending our tornado-detection range, and improving weather-sensitive industries’ ability to plan around weather events.

6. The CWRRP depends on timely and reliable services from its contractors. Work on radar installations can disrupt weather-prediction capabilities in certain areas of the country. As we have been seeing with recent hurricanes, weather-prediction capabilities can have significant impact on the lives and livelihood of Canadians. Implementing the CWRRP effectively and promptly will help protect Canadians. Achieving an effective and timely implementation of CWRRP is not a simple exercise. It requires highly technical work performed by highly experienced teams. Particularly in areas where new radars are being installed, coordination of several teams of contractors is often necessary.^[28]

[30] The work described by the RFP pertains to the installation of a new weather radar station near Sechelt, British Columbia, at the top of Halfmoon Peak that is needed to provide British Columbia with weather radar coverage. The proposed site location for the weather radar station is accessible by a forest service road, but significant additional work is required to prepare the road so that the weather radar station can be installed.

[31] Rick Czepita testifies that the forest access road runs through “treacherous and mountainous area with limited access”. The need to “upgrade and rehabilitate the entire 3.5 kilometre length” of the forest access road was time sensitive to avoid delays in construction of the weather radar station. For these reasons, it was important that the contractor have requisite expertise in order to ensure that the work is completed safely and on time.

[32] In evaluating Ramida’s bid, Rick Czepita says that he carefully compared the nature of the projects listed in Ramida’s bid as being similar with the description of the work in the RFP. He also contacted references that Ramida had provided for each project. He asserts that no other criteria were used for the bid evaluation.

[33] Rick Czepita concluded that neither project example listed by Ramida reflected a project of similar size, scope and value to the one described in the RFP:

... Both examples were much simpler, much smaller, and much less sophisticated projects than the Work under procurement, and Ramida’s own value estimate reflected that... .[29]

[34] Following his assessment that Ramida’s bid did not demonstrate the requisite level of experience, Rick Czepita discussed the evaluation results of both bids that had been received with other team members involved with the CWRRP. Rick Czepita testified that the team members agreed with his evaluation that bids received from both bidders were non-compliant, and he conveyed those results to Shawn Davis.

[35] Rick Czepita further says that he is aware that no contract has been awarded because no compliant bids were received. As a result, the project has been re-tendered. In the new solicitation K3F51-230283/A, there are two phases. The qualifications of the bidders are evaluated in the first phase, with qualified bidders being invited to submit a financial bid in a second phase. Rick Czepita stated that he was involved with the evaluation of bids submitted during the first phase of solicitation K3F51-230283/A and that he is aware that Ramida has submitted a bid.

[36] Ramida provided comments in reply to the GIR on October 21, 2022.[30]

POSITIONS OF THE PARTIES

[37] The positions of the parties may be briefly summarized as follows.

Ramida

[38] Ramida raises four principal grounds of complaint.

Nonessential experience required

[39] Ramida asserts that the RFP contravenes Article 503.5(f) of the CFTA because it requires bidders to meet requirements that are unnecessary to perform the work that is being procured.

[40] In Ramida’s view, the forestry road rehabilitation in Sechelt is routine work that could be readily performed by an excavation contractor, such as Ramida.

Unclear evaluation criteria

[41] Ramida submits that the RFP was deficient by failing to describe the expected level of detail to be provided by bidders concerning their prior project experience, particularly with respect to the criteria that would be used to determine whether a prior project is “similar” to the RFP’s scope of work.

[42] Further, Ramida contends that the evaluation criteria for the mandatory requirements were not disclosed by the RFP, contrary to Article 509.7(a) of the CFTA.

Unfair and unreasonable evaluation

[43] Ramida asserts that its bid was unfairly assessed using indefinite or shifting criteria, without providing Ramida with an opportunity to make submissions. Moreover, it asserts that the prior projects referenced in its bid were indeed similar in nature and cost to the work being tendered and that its bid should have received a “pass” assessment.

Poor communication from the procuring entity

[44] Ramida expresses frustration with what it describes as delayed or insufficient responsiveness from ECCC in addressing inquiries from Ramida after the tender closed. As such, Ramida claims that ECCC is in contravention of Article 203.2 of CFTA.

ECCC

[45] The issues raised by the ECCC may be summarized as follows.

The complaint is late

[46] ECCC says that the scope of the work was clearly described in the appendices to the RFP. To rehabilitate the forestry road, it would require some blasting, the installation of drainage ditches, the reshaping and compacting of subgrade levels and roadways, and the safe use of heavy equipment on a forestry roadway.

[47] To the extent that Ramida’s complaint is premised on alleged lack of clarity in the RFP, ECCC asserts that Ramida should have raised any such concerns during the tender period before submitting a bid. As the RFP was published on June 9, 2022, Ramida had constructive, if not actual, knowledge of the description of the scope of work. If this gave rise to any basis for complaint, ECCC submits that any such complaint should have been filed by no later than June 21, 2022.

The mandatory criteria in the RFP were clear, essential and reasonable

[48] ECCC contends that the scope of the work was clearly described in the appendices to the RFP. To rehabilitate the forestry road, it would require some blasting, the installation of drainage ditches, the reshaping and compacting of subgrade levels and roadways, and the safe use of heavy equipment on a forestry roadway.

[49] Moreover, the work being tendered pertained to a portion of an overall project with a time‐sensitive schedule. Delays in completion of the work could affect the timely completion of subsequent steps in the project construction of the weather radar station, with consequent waste of resources. The work would also be carried out on rugged terrain with potential danger associated with excavation, blasting and levelling work. As such, ECCC asserts that it is both essential and reasonable for the procuring entity to prescribe mandatory criteria to ensure that the winning bidder can perform the work safely, on time and on budget.

Ramida’s bid was fairly evaluated

[50] ECCC submits that it is incumbent on a bidder to ensure that its proposal meets all mandatory criteria prescribed by the tender. The Tribunal has consistently applied a deferential standard of review with respect to bid evaluation, provided that the evaluation is supported by a reasonable explanation.

[51] In this case, ECCC says that Ramida has failed to demonstrate, in its complaint, that its bid met all the mandatory criteria. On a side-by-side comparison of tasks, the projects listed by Ramida did not reflect the same type of work. Accordingly, ECCC states that the evaluator had reasonable grounds to reject Ramida’s bid as non-compliant.

ECCC complied with its obligations to communicate with bidders

[52] ECCC asserts that it was fully transparent in its dealings and communications with Ramida.

[53] Bidders were given contact information for Shawn Davis, who received and replied to queries from bidders, notably from Ramida, during the tender and after it closed.

[54] As requested by Ramida, ECCC provided the informal results of the tender shortly after closing and notified Ramida within a reasonable timeframe that its bid had been evaluated as non‐compliant. ECCC also complied with Ramida’s request for a debrief and supplied a detailed explanation for the disqualification of Ramida’s bid.

[55] ECCC submits that it complied with all relevant obligations for transparent and timely communications with bidders.

[56] ECCC asks that Ramida’s complaint be dismissed, with costs.

INTERLOCUTORY ISSUES

[57] ECCC sought rescission of the postponement order on the premise that the order is now moot because the project has been retendered, and Ramida requested that the postponement order be extended to the second tender. The Tribunal dismissed both requests on October 26, 2022.[31]

[58] ECCC’s request was underpinned by the premise that the postponement order attaches to a contract for the work per se, as opposed to the solicitation. Indeed, section 30.13 of the CITT Act refers to a designated contract as opposed to a procurement and the goods or services being procured.

[59] An issue or proceeding becomes moot when there is no longer a live controversy between the parties. If the proceeding is moot, the court or tribunal retains a discretion to hear and decide the matter. In exercising that discretion, the following factors should be considered: (1) the existence of an adversarial relationship between the parties; (2) concern for judicial economy; and (3) public interest in having the issue decided.[32]

[60] In this case, the first of these conditions is not met. There remains a live controversy between the parties. The postponement order is referable to a specific solicitation and the complaint that the solicitation was conducted in contravention of the trade agreements. Those grounds of complaint are either well founded or they are not. This constitutes a live controversy, pending determination of the complaint on its merits, which is not affected by a retendering of the work.

[61] The Tribunal cannot know whether the new solicitation is a verbatim copy of the RFP at issue or whether the parameters of the RFP have changed and, if so, to what extent.

[62] If the complaint is well founded, the complainant is entitled to a remedy. In this case, Ramida’s complaint as filed asks, as a remedy, that Ramida be awarded the contract. If the postponement order is rescinded and the Tribunal later concludes that the complaint is valid, the Tribunal could face the argument that it is fettered from granting the remedy originally sought by Ramida.[33] By rescinding the postponement order as moot, the Tribunal may be viewed as having signalled that there is a direct nexus between the first solicitation and the second one such that the same contract may be permissibly awarded before the complaint on the first tender has been determined.

[63] The procuring entity is free to retender the work, but it cannot conflate the designated contracts associated with the solicitations. If the complaint succeeds and the recommended remedy is award of the contract to the complainant, there might be practical issues with implementing that remedy, if a coextensive contract has already been awarded as a result of a second solicitation. However, that is an issue to be resolved if it arises. That possibility cannot be used to prematurely undermine the complainant’s potential right to its chosen remedy before the complaint is adjudicated.

[64] For the above reasons, the Tribunal dismissed Ramida’s request that the postponement order be extended to the second tender. The two solicitations cannot be presumed to be coterminous, derivative or linked. The solicitations are distinct from each other.^[34] The Tribunal has no jurisdiction over that second tender process until when (and if) a complaint is filed.

ANALYSIS

[65] The Tribunal’s authority to conduct inquiries concerning procurement matters arises from the CITT Act and the Regulations.

[66] 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”. It reads as follows:

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.

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

[68] As such, the Tribunal must decide whether ECCC has complied with the relevant provisions of the CFTA, having regard to the grounds set forth in Ramida’s complaint. Also at issue is whether certain grounds of Ramida’s complaint are timely.

[69] The Tribunal’s role in reviewing procurement decisions was recently summarized by the Federal Court of Appeal in Pacific Northwest Raptors 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.^[35]

[70] 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 ECCC evaluators.

[71] The crux of Ramida’s complaint is that the RFP did not provide a sufficient framework for bidders to know what was meant by work that was “similar” to the work as described by the RFP.

[72] Annex A of the RFP describes the work to be done for this solicitation as follows:^[36]

ANNEX A – STATEMENT OF WORK

Forestry Road Rehabilitation - R15528 TELUS Road in Halfmoon Bay, Sechelt, BC

1. Objective

Environment and Climate Change Canada (ECCC) is preparing to install a new Weather Radar station near Sechelt, British Columbia. The site is located at the top of Halfmoon Peak and is accessed via an existing forest service road.

A recent on-site assessment of the access road identified several areas of concern for passage of the construction machinery required to build the Weather Radar station, as well as the need to create a cleared and graded construction area, with laydown space, for the station construction.

This Statement of Work (SoW) describes requirements for the following two key objectives:

1) Preparation of the site gravel lay down area (approx. 35m x 40m) including tree cutting, grade, and gravel to ensure the crane can operate and steel can be offloaded safely on a flat lay down area (constant ASL elevation); and

2) Road rehabilitation to allow for safe passage of heavy-duty vehicles, such as a 42ft trailer, flat bed, 110 tonne crane, etc., ascending and descending the mountain from the entrance of R15528 TELUS Road to the specified radar location, a distance of approximately 3,500m.

...

4. Tasks

The contractor shall:

4.1 Complete gravel lay down area: Review general construction guideline as described in Appendix A and B. The area of approximately 37m x 41m should be cleared of all trees, shrubs.

4.2 Road Rehabilitation: See general construction guideline described in Appendix A and B.

...

[Emphasis added]

[73] Additional information is provided in Appendix B of the RFP:[37]

...

Part 1 Work under this Contract

1.1 The Work under this Contract consists of clearing, access road, drainage and site grading improvements for Environment And Climate Change Canada (ECCC), hereinafter called the Owner.

1.2 The Work includes the following components:

.1 Trimming, cutting and off-site disposal for non-merchantable vegetation along approx. 3,500m in length to establish a general corridor 6m in width and 5m high.

.2 Select cutting and stockpiling of merchantable timber as identified on the Contract Drawings.

.3 Installation or extension of 24m - 450mm diameter culverts, min. 8m long.

.4 Supply, place and compact a granular overlay on the existing access road to 4.0m wide width, materials and approximate lengths as identified in the Contract Drawings to ensure a road travel speed of 15km/hr.

.5 Roadway modifications and site pad construction including removal of rock, excavation, subgrade and embankment preparation, road structure, drainage, road and embankment surfacing and hydroseeding.

1.3 The Work, unless specifically stated otherwise, shall include the furnishing of all Material, Product, Equipment, Labour including mobilization and de-mobilization necessary to complete the Work.

1.4 The Work shall not be deemed complete until all components are placed in operation by the Contractor and are operating satisfactorily.

[Emphasis added]

[74] In the Tribunal’s view, the foregoing information provides a clear description of the scope of the work that the contractor would be expected to perform. The tasks as described also entail a level of technical complexity and potential hazard that require an experienced contractor. In particular, the excavation, levelling and clearing of a forest roadway to enable the safe passage of heavy machinery would likely encompass the use of explosives to remove rock and other geological obstacles, together with the levelling, removal and safe disposal of heavy trees and vegetation. The finishing of the upgraded road would also have to be done in a manner that would ensure that the road remains serviceable and able to bear the load of heavy construction vehicles during construction of the weather radar station.

[75] None of this is suggestive of a project that could be safely performed with casual or inexperienced labour. As such, it was reasonable for the RFP to include mandatory technical criteria to screen out prospective bidders who lacked the skills and experience to perform the work competently and safely. The Tribunal is thus unable to conclude that the RFP imposed nonessential requirements on prospective bidders.

[76] When drafting mandatory criteria, a procuring entity has the latitude and discretion to define its procurement requirements as it sees fit to reasonably meet its operational requirements.[38] It is not required to tailor its requirements to suit the circumstances of every or any prospective bidder.[39]

[77] In this case, bidders were instructed to “list” (as opposed to “describe”) previous projects that are of a “similar nature and value” to the work described in the RFP. This imposes two conditions. The previous projects must be of a “similar nature” and they must also be of a “similar value”. Both conditions must be met.

[78] The word “similar” is somewhat malleable in terms of conveying the standard that will be used for the purposes of comparison during bid evaluation, at least with respect to the nature of the projects. An invitation to “list” previous projects further implies that extensive detail is not expected.

[79] Notwithstanding, the Tribunal finds that the statement of work provided enough detail for a reader of the RFP to understand that the expected tasks required some degree of expertise and sophistication. Government tenders are public documents that are published online. Without a threshold requirement for some degree of experience and expertise, especially on lucrative or complex projects, procuring entities could receive significant numbers of speculative bids from unqualified contractors, which would consume resources in processing and evaluating those bids.

[80] In this case, the RFP was structured in a manner such that the requirement to list previous similar projects was the only mandatory criterion for evaluation, aside from price. Given the type of specialized work that needed to be performed, the Tribunal considers that an experienced bidder such as Ramida would expect that the mandatory criteria were not merely a formality but that it would carry considerable weight in the overall bid evaluation. In such circumstances, a prospective bidder would be well served to carefully select representative past projects and highlight any common features or areas of overlap with the RFP’s statement of work.

[81] It appears as if Ramida did not lack relevant experience or expertise per se; rather, it simply did not make an optimal choice when selecting two of its past projects for the purpose of demonstrating that it had done similar or comparable work in the past. The amount of information provided by Ramida’s bid was sufficiently detailed to enable the bid evaluators to discern the tasks and scope of work in the prior projects and map them to the statement of work in the RFP, thus revealing gaps or insufficient overlap. This led the evaluators to conclude that the past projects were not “similar” in nature, which resulted in an evaluation that Ramida’s bid was non-compliant.

[82] Although the RFP provided a clear description of the type of work that the winning bidder would be expected to perform, the wording of the RFP could have been more fulsome in guiding prospective bidders with respect to what would constitute work that is of a “similar nature” to the work being tendered. The Tribunal considers it significant, from the affidavit of Rick Czepita, that the project has been retendered using a different structure to assess bidder qualifications.

[83] In evaluating the bids, ECCC appears to have mapped, task by task, the work performed in the prior projects with those described in the RFP, but the extent of the overlap to receive an assessment of “pass” was not defined by ECCC in the RFP and could have ranged anywhere from 50% to 100% of elements in common, perhaps even with different weighting assigned to different aspects of the job that were viewed by ECCC as being more critical or requiring more expertise (e.g. experience with blasting).

[84] This being said, to the extent that the terminology “similar nature” had any inherent ambiguity, it was incumbent upon Ramida to have raised that issue with ECCC during the tender period. It is now too late for that complaint to be made. Similarly, any complaint relating to the essentiality of the mandatory technical requirements should have been raised during the tender period.

[85] It is well established that prospective bidders must challenge perceived defects in the tender document at the earliest opportunity. The Regulations impose stringent deadlines with respect to the filing of procurement complaints. A prospective complainant cannot adopt a “wait and see” position where time is of the essence.^[40] 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 its bid turns out to be unsuccessful.

[86] It is also reasonable to expect that a bidder will put its best foot forward by selecting, from its portfolio of past projects, examples of work that would have the highest number of specific elements in common with the work being tendered. As such, the evaluators had no obligation to revert to Ramida to seek further information or additional project examples during the bid evaluation. This would amount to bid repair and is impermissible. As such, Ramida’s complaint that ECCC contravened the provisions of the section Real Property Contracting, subsection R2710T GI11, subparagraph 5, of the SACC Manual must be dismissed.

[87] 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.[41]

[88] In this case, the RFP also required that the previous work be not only of a “similar nature” but also of a “similar value”.

[89] Ramida concedes that there is a difference between the price of the prior projects listed in its bid and its price for the tendered work. Ramida’s bid contains the following statement:[42]

While these two examples aren’t in the same price range, they do provide examples of our ability to create pads and roads, we recently completed a project at William Head Federal Institution of a comparable price.^[43]

[90] The Tribunal finds that the price gap between Ramida’s project examples and the tendered work cannot be reasonably equated to the projects being of “similar value”, even on a generous reading of that term. The dollar value of the past projects listed by Ramida differed, by orders of magnitude, from the bid price proposed by Ramida for the work being tendered.

[91] For that reason alone, the Tribunal cannot uphold Ramida’s complaint that its bid was wrongly disqualified.

[92] Having reviewed the evaluation report provided in Rick Czepita’s affidavit, the Tribunal concludes that the bid evaluation was confined to a comparison of the work elements as between Ramida’s project examples and the scope of work in the RFP.

[93] The jurisprudence is clear that, while solicitation documents must identify the major evaluation criteria, they do not need to identify every sub-criterion comprising the major evaluation criteria. In Siemens Westinghouse Inc. v. Canada (Minister of Public Works and Government Services), the Federal Court of Appeal stated the following:

While an RFP must identify all major evaluation criteria it is not required to identify all aspects of each criterion which might be taken into account, provided that the unidentified aspects are reasonably related to, or encompassed by, the express criterion. The CITT’s decision was not irrational, let alone clearly irrational.

...

In my view, it is obvious that in order to render operational the criteria and weighting in an RFP so as to evaluate proposals, there must, of necessity, be a translation or descriptive process that, depending on the particular RFP in question, is capable of yielding a number of different formulations or “decompositions,” each of which may be consistent with the methodology stated in the RFP. To find otherwise would, in my opinion, be unrealistic. What is of concern to the CITT in hearing a complaint under section 30.11 of the CITT Act is whether any particular decomposition identified in an evaluation or re-evaluation handbook is in fact logically consistent with the terms of the RFP.^[44]

[94] A procuring entity will comply with its obligations under trade agreements to provide a fair evaluation,^[45] provided that:

... it uses an evaluation approach that is logically consistent with, and could reasonably be anticipated or derived from, the methodology and criteria stated in the tender documents (including any further clarifications). Similarly, if a procuring entity decides to use evaluation guides that rely on criteria more detailed than the ones published in the tender documents, the evaluation will remain reasonable if such detailed directions are consistent with, and could be anticipated or derived from, the published criteria.^[46]

[95] 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.^[47] Although ECCC appears to have conducted a meticulous scrutiny of the bids, there were no extraneous criteria used,^[48] and the evaluation is supported by a reasonable explanation.

[96] The post-tender communications between ECCC and Ramida were not ideal in that there were some delays in responding to inquiries from Ramida, a point that was conceded by ECCC. This clearly caused frustration and anxiety for Ramida, which needed some clarity so that it could plan appropriate allocation of its labour and business resources. However, the Tribunal considers that these lapses do not rise to the level of contravening the trade agreements, as alleged by Ramida.

[97] In any event, government procurements are covered by Chapter Five of the CFTA. Article 203 of the CFTA is included in Chapter Two – General Rules and does not apply to procurement. Indeed, Article 200(2) clearly states that “[t]his Chapter does not apply to procurement by a Party of a good or service purchased for government purposes (...) whether or not that procurement is covered within the meaning of Article 504 (Scope and Coverage).”

[98] In summary, the Tribunal finds the following:

(a) The scope of work to be performed by the contractor was clearly described in the RFP;

(b) Given the nature of the project and potential hazards of the work, it was reasonable for ECCC to have prepared an RFP with mandatory technical criteria. This was not a project whose work should be entrusted to an inexperienced contractor, and the inclusion of mandatory technical criteria did not impose nonessential requirements on prospective bidders. In any event, such a complaint is time-barred;

(c) It was reasonable to require bidders to demonstrate the requisite experience for the tendered work by providing examples of past work that was relevant, in terms of both its nature and value. ECCC had no obligation to seek further information from a bidder (such as Ramida) during the evaluation of the mandatory technical criteria;

(d) The term “similar nature” as used in the RFP to reference and assess a bidder’s prior work is arguably ambiguous, but clarification should have been sought during the tender, and such a complaint is now time-barred;

(e) Ramida’s bid was reasonably and fairly evaluated. At a minimum, the project examples provided by Ramida could not reasonably be found to be of a “similar value” to the tendered work. There is a major and disproportionate gap between the dollar value of Ramida’s past projects and the bid price contained in Ramida’s proposal that was sufficient to underpin an evaluation that Ramida’s bid was non‐compliant. The bid evaluation is supported by a reasonable explanation and no extraneous criteria were used;

(f) ECCC’s post-tender communications with Ramida were not ideal, but the lapses were minor and did not rise to the level of contravening the trade agreements.

[99] For all the above reasons, Ramida’s complaint is dismissed.

COSTS

[100] The Tribunal is conferred with a broad statutory discretion concerning the allocation of costs in a procurement dispute.[49]

[101] As a general principle, costs usually follow the event.[50] ECCC has requested costs of the complaint, while Ramida has not.

[102] As noted above, Ramida’s critique of the terminology used in the RFP, although out of time, has some merit and may have usefully informed the preparation of the second tender, which has a different structure for prescribing and evaluating bidder qualifications.

[103] Further, there were some issues concerning communications between the parties. Even where lack of communication by the procuring entity does not appear to constitute a breach of the applicable trade agreements, the Tribunal has previously weighed this factor when awarding costs.[51]

[104] Having regard to the foregoing, the Tribunal’s preliminary view is that the parties should bear their own costs of this proceeding.

[105] The Tribunal’s findings with respect to costs are both preliminary and provisional. The Tribunal encourages the parties to discuss and reach an agreement on the issue of costs, having regard to these reasons. If no agreement can be reached, the parties may make submissions on costs within 15 days of the date of this statement of reasons. Upon receipt and consideration of any submissions received from the parties, the Tribunal will render a final order with respect to costs.