Recent decisions relating to procurement from the Canadian International Trade Tribunal (CITT) include the following:
ADR Education
In this case, PWGSC issued a request for a standing offer (RFSO). The closing date was changed by addendum - first to December 19, 2011. ADR posted its bid on December 13, 2011 in order to ensure that it met this closing date. The next day, PWGSC issued a further amendment, extending the closing date to January 6, 2012.
ADR was not successful in one of the categories it had applied for. It appeared that the reason for this was that a project that would have been eligible when the closing date was in December, was no longer eligible when the closing date was in January. The decision is not clear, but presumably there was a requirement for projects completed within a certain number of years from the closing date.
Unfortunately, the Tribunal did not rule on the substantive issue. As discussed in an earlier blog, the case was dismissed because ADR did not file its complaint with the Tribunal within 10 working days of PWGSC finally denying it relief.
What is interesting is that the Tribunal is critical of PWGSC, as the RFSO did not contain any guidance for bidders as to how to raise a complaint. In particular, there was no indication that complaints must be filed with the CITT within the 10 working day window. The Tribunal expressly asked PWGSC to include specific guidance and warning on time lines not only in its bid documents, but also in all letters when they advise bidders they are unsuccessful.
Hopefully this advice will be taken and the Tribunal will be able to rule on more substantive issues, rather than having to rule complaints as invalid simply due to a failure to meet the time line for filing.
Tyco Integrated Security Canada, Inc.
This complaint related to an alleged failure by evaluators to use 'general industry knowledge' in order to ascertain whether a bidder had met the mandatory standards.
The RFP related to the supply of certain hardware for closed circuit video systems to the RCMP. One of the mandatory requirements was for: "The Monitoring/Download workstation must have a video card with dual digital output interfaces, either DVI or HDMI. The display connector interfaces on the video card must be of the same type and be compatible with the display connectors of the supplied monitors."
Tyco submitted a specification sheet from the manufacturer to describe its proposed product: an "off-the-shelf" "Dell OptiPlex 9010 Small Form Factor PC" with "Dual 1GB AMD RADEON HD 7470, w/VGA, OptiPlex, LP (321-0143) video cards."
The Tribunal held that this specification was not sufficiently clear to show that Tyco had met the mandatory requirements. The specification did not expressly state that there were dual digital output interfaces. The Tribunal held that, in the absence of specific expert evidence, Tyco had not shown that there was any industry standard that would allow the evaluators to imply compliance from the wording on the specification sheet.
The Tribunal made the point that:
In the Tribunal's view, this is not a case of form taking precedence over substance, but a case in which the bidder failed to "connect the dots" by not specifically and completely describing how its proposed product complied with all mandatory requirements. The Tribunal, therefore, sees it as an attempt to hold evaluators responsible for an obligation that falls on each and every bidder in an RFP process, i.e. the responsibility to exercise due diligence in the preparation of a proposal to substantiate compliance with all mandatory requirements in all respects.
All Canadian Courier Corp.
This case is another warning to bidders to ensure that they fully comply with the requirements of the bid documents.
PWGSC had issued two bid documents for similar services - one general (Solicitation A) and one available only to aboriginal businesses (Solicitation B). All Canadian wrongly downloaded the bid documents for Solicitation B and did not realize that this only related to aboriginal businesses. They submitted their proposal for Solicitation B and were disqualified, as they were not an aboriginal business.
All Canadian claimed that PWGSC should have transferred its bid to Solicitation A. The Tribunal was sympathetic to All Canadian, but did not overturn the PWGSC decision. It held:
Finally, the Tribunal has previously stated that it is incumbent upon bidders to exercise due diligence in the preparation and delivery of their proposals and that this responsibility cannot be transferred to the Government. Accordingly, while the Tribunal appreciates how unfortunate this mistake has been, All Canadian bears ultimate sole responsibility to exercise proper due diligence in the submission of its offers.
Practice Points
There are three practice points to be taken from this round of cases:
- Remember the tight time line for challenging federal procurement decisions at the CITT.
- Read the procurement documents carefully - it is not up to the procuring authority to correct a bidder's mistakes.
- If you are the procuring authority, consider what information you should include in your procurement documents so that bidders understand their rights if they have concerns over the process. This might be a right to refer to a fairness monitor, the use of a dispute resolution process or, for a federal procurement, a reference to the time lines for the CITT.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
