By Paul Emanuelli

This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.

As past case studies illustrate, past experience requirements have been subject to a high rate of bid protest challenges and should therefore be drafted and applied with a high degree of precision. The following article summarizes the governing principles that apply to the evaluation of past experience in bid evaluations and includes a synthesis of the relevant case law.

The case law has established the following governing legal principles for the evaluation of past experience in bid evaluations:

  1. Duty to Reject: Purchasing institutions have the right and duty to reject bidders who fail to meet mandatory past experience requirements.
  2. Strict Interpretation: While adjudicators may defer to government evaluators on a reasonableness standard when dealing with factual matters, past experience criteria will be subject to strict legal interpretation in a bid protest based on the wording in the solicitation document.
  3. Ambiguity Attracts Remedies: Ambiguous past experience criteria can undermine the legal defensibility of an evaluation and award decision. A bid protest may result in a re-evaluation order, an order requiring redrafting and reissuing a solicitation document, or the voiding a contract award made based on a flawed evaluation. In some jurisdictions, flawed evaluations can also attract lost profit awards for prejudiced bidders.
  4. Clear Process Rules: The solicitation document should clearly define the process rules for confirming the adequacy of past experience. Post-bid rectifications to deal with missing past experience information should only be allowed where the solicitation rules specifically permit those practices.
  5. Procedures for Self-References: Purchasing institutions should avoid past experience requirements that call for them to provide references to their own past suppliers unless they have adopted formal protocols to manage these procedures and their internal procedures are prompt enough to meet the necessary bid deadlines.
  6. No Arbitrariness: Evaluation teams cannot be arbitrary in assessing past experience. While their evaluation decisions will typically be reviewed in a legal challenge on a reasonableness standard rather than a correctness standard, even the reasonableness standard of review calls for rational, transparent, and logical evaluations.
  7. Consistency: The past experience scoring criteria and rules need to be applied in a manner consistent with the solicitation document. Evaluators should be consistent in scoring proponent past experience and in dealing with concerns of prior performance issues.
  8. Records: Evaluators should maintain complete contemporaneous records of their evaluations.
  9. Restrictive Requirements: Purchasing institutions should avoid unnecessarily restrictive past experience criteria and should be prepared to defend their past experience standards as legitimate operational requirements.
  10. Firm and Individual Experience: Purchasing institutions should carefully define whether the past experience pertains to corporate or firm-level experience or to the experience of individuals on the proponent’s proposed project team. For example, past rulings have held that individual experience as an employee does not constitute contractor experience for a firm and that employee experience from prior employers does not count as firm experience for the new employer.
  11. Third-Party Experience: Relying on third-party past experience has proven contentious, particularly where the solicitation rules are silent on this issue. Purchasing institutions should carefully define whether proponent past experience assessments will consider the experience of predecessor entities, parent companies, subsidiaries, affiliates, subcontractors, or other third parties. To the extent that relying on third-party experience is permitted under the solicitation, legal rulings have restricted this practice to accepting that past experience only in situations where the third party in question will be performing part of the tendered contract.
  12. Define Past Projects: When assessing past experience, the meaning of a past project is not self-evident and should therefore be described in the solicitation.
  13. Define Minimum Standards: When purchasing institutions set a minimum past experience requirement, they must strictly enforce that standard; close is not good enough. For example, 69 months of experience is insufficient when the solicitation calls for a minimum of 72 months. Minimum standards should therefore be carefully defined to avoid unnecessarily disqualifying bidders with sufficient experience.
  14. Avoid Compliance Traps: Scoring past experience on a mandatory compliance pass-fail basis has proven to be impractical and has attracted a disproportionate amount of bid protests. Purchasing institutions should therefore score past experience with detailed criteria and sub-criteria and apply a minimum passing score, rather than assessing past experience as a mandatory requirement based on ambiguous pass-fail compliance standards.
  15. Avoid Ambiguous Criteria: When evaluating past experience, purchasing institutions should avoid using ambiguous criteria, hidden sub-criteria, or non-transparent scoring methods. For example, drawing inferences from job titles, applying skewed scoring formulas, using non-transparent scoring methodologies, applying hidden preference (for example, breadth of experience over depth of experience, general experience over specialized experience, on-site experience over off-site experience, minimum staffing requirements, consecutive years of experience), and using hidden pass-fail thresholds have been identified in bid protests as improper past experience evaluation practices.
  16. Avoid Anecdotal Evidence: Evaluators should not rely on their independent knowledge of an incumbent proponent to give that bidder the benefit of the doubt since this can create an unfair advantage.

The following section provides a chronological summary of the global case law that informs the above-noted governing principles for assessing past experience in bid evaluations.

In its May 1997 determination in Re Symtron Systems Inc., the Canadian International Trade Tribunal ruled that the government awarded a contract to a non-compliant bidder who improperly relied on subcontractor experience to meet the past experience requirements. The dispute dealt with a solicitation for two firefighting training facilities for the Department of National Defence, which called for the prior “successful completion” of similar projects. The Canadian International Trade Tribunal found that the mandatory requirement in question did not specifically allow bidders to rely on their subcontractors to meet the past experience requirements and determined that the government had therefore awarded the contract to a non-compliant bidder. This case illustrates the importance of drafting clear experience requirements that specify whether the requirements must be satisfied by the prime bidder or whether they can be met by other proposed members in the bidding team.

In its December 1998 determination in Re M.D. Heat Techs Inc., the Canadian International Trade Tribunal determined that the government properly rejected the complainant’s bid for failing to meet the past experience requirements. The dispute dealt with a solicitation for maintenance and repair services at 27 Department of National Defence buildings that called for at least three similar prior projects. The complainant relied on a former government employee to meet those requirements, but the Tribunal determined that past experience as an employee was not the same as past experience as a contractor. As the Tribunal stated, “the experience of individuals in performing work as employees is not necessarily equivalent to the experience of a firm performing the same work”. The government’s decision to reject the bid was therefore upheld. As this case illustrates, in addition to defining the past experience in relation to the type of project, purchasing institutions should also clearly define the nature of the required past experience obtained and whether experience gained as a contractor, subcontractor, or employee will be considered equivalent, particularly when that past experience will be assessed as an all-or-nothing pass-fail mandatory compliance requirement as opposed to score requirement that allows for a range of scores based on the nature of the experience.

In its October 2001 decision in Dinh v. Minister for Infrastructure and Public Utilities, the Supreme Court of Vanuatu upheld the rejection of a non-compliant bid, finding that the complainant was not entitled to correct its bid error after the bid submission deadline. The case dealt with a dispute over a tendering process for a road rehabilitation contract. The evaluation process included a prequalification component that screened for capacity to perform the work, and a pricing component that evaluated bid prices. The complainant’s bid was rejected because it failed to provide the required evidence proving that over the prior five years its average annual income for civil engineering works was three times the estimated value of the tendered contract. The Supreme Court agreed with the government’s determination that the bidder failed to meet this requirement and that the bidder’s calculations contained a mathematical error.

The complainant also challenged the government’s refusal to allow it to correct the error, but the Supreme Court ruled that post-deadline rectifications were not permitted under the rules of that tendering process. The Supreme Court also rejected the complainant’s argument that the experience requirements posed an unreasonable and artificial barrier to competition, noting that the complainant failed to raise concerns over those requirements prior to bidding, and only did so retroactively after it failed to meet the requirements due to error and was denied an opportunity to correct that error. As this case illustrates, the enforcement of experience requirements will often result in the rejection of bids and in legal challenges from rejected bidders. Purchasing institutions should therefore ensure that their screening requirements are reasonable and clear, and that those requirements do not impose unnecessary barriers to competition.

In its May 2002 determination in Re MaxSys Professionals & Solutions Inc., the Canadian International Trade Tribunal overruled the rejection of the complainant’s bid over past experience requirements. The dispute dealt with a Request for Proposals (RFP) for consulting services issued for the Department of National Defence. While the Tribunal agreed that a subsidiary company could not rely on the experience of its parent company to meet the RFP experience requirements, the Tribunal found that in this case, the complainant had actually taken over the performance of the contracts in question from its parent company and therefore met the requirements. The Tribunal stated, “the experience of 1230357 Ontario Limited should be considered as the experience of MaxSys for purposes of the RFP”. The Tribunal therefore ordered the government to re-evaluate the bids. As this case illustrates, government evaluators should be careful in considering the background facts when determining whether a bidder meets their past experience requirements.

In its June 2002 determination in Re ACMG Management Inc., the Canadian International Trade Tribunal determined that the government improperly awarded a contract to a non-compliant bidder. The solicitation in question called for a senior life technologist “qualified to the QL7 trade level”. While the individual proposed by the winning bidder did not possess the required certification, the government accepted the bid since the proposed individual held the qualifications necessary to be eligible for that certification. The Tribunal overruled the government’s interpretation of the requirement, struck down the contract award, and ordered the government to award the contact to the complainant. As this case illustrates, government evaluators should guard against overly lenient interpretations of the past experience requirements, particularly when those requirements are framed as mandatory pass-fail bid compliance criteria, since contract awards and resulting bid disputes can turn on the strict interpretation of those criteria.

In its December 2002 determination in Re Nanaimo Shipyard Ltd., the Canadian International Trade Tribunal upheld the rejection of a bidder who failed to meet the past experience requirements. The dispute dealt with a prequalification process for refitting a destroyer in Victoria, British Columbia, for the Department of National Defence. The Tribunal noted that the complainant had admitted that “the only other refit of this value done on the West Coast in the last five years was that of HMCS Protecteur, which was completed by a competitor.” The Tribunal rejected the complaint after finding that the complainant was properly rejected for failing to show the required prior project experience. As this case illustrates, purchasing institutions remain subject to legal challenge even where they are properly applying their past experience criteria and should therefore ensure that they are maintaining proper records of their evaluation decisions in case those decisions are challenged.

In its September 2003 determination in Re Lemmex Group Inc., the Canadian International Trade Tribunal disagreed with the government’s evaluation decision but upheld that decision on a reasonableness standard. The dispute dealt with the interpretation of a mandatory certification requirement that allowed for three years equivalent experience in adult education as an equivalent to formal certification. While the Tribunal did not agree with the disqualification, it ultimately upheld that decision after finding that the evaluation committee had acted within its reasonable discretion. As this case illustrates, while evaluation and award decisions that involve factual issues may be reviewed on a reasonableness standard, rather than a stricter correctness standard, evaluation teams should be ready to defend the reasonableness of their past experience assessments and maintain proper records of their deliberations.

In its June 2003 determination in Re Worklogic Corporation, the Canadian International Trade Tribunal dismissed a complaint after finding ambiguities in the government’s past experience requirements. The dispute dealt with a Request for Supply Arrangement for informatics services for the Canadian Food Inspection Agency. The requirement in dispute called on bidders to “demonstrate that each proposed consulting resource has completed two (2) relevant projects within the last 3 years.” The next line of that requirement also asserted that “the two (2) projects must have involved work on Microsoft Visual Studio 6.x enterprise edition or greater.” The Tribunal found that this requirement was ambiguous since it was not clear whether having “involved work” with the required software was the same as having “completed” the work with that same software. While the complaint was ultimately dismissed, this case illustrates the high level of scrutiny that will be placed on past experience requirements in a bid protest, particularly when those requirements are framed as mandatory pass-fail tender compliance standards.

In its March 2004 determination in Re AppDepot Web Services Inc., the Canadian International Trade Tribunal awarded lost profit damages to a rejected complainant due to the government’s flawed drafting of a mandatory past experience criterion. The requirement called on bidders to list “up to five (5) successfully completed projects similar in size, scope and nature”. The complainant was rejected for failing to provide five prior projects. However, the requirement called for “up to five” rather than “at least five” projects. While the government argued that the criterion should have been interpreted as requiring at least five prior projects, the Tribunal disagreed, stating that “up to five” means “five or fewer projects, based on the plain language meaning of this phrase.” The complainant was awarded its lost profits due to the ambiguously drafted requirements. As this case illustrates, past experience requirements should be drafted precisely to avoid absurd results based on the literal interpretation of ambiguously drafted criteria.

In its December 2005 determination in Re P&L Communications Inc., the Canadian International Trade Tribunal found that the government used non-transparent skewed weighting preferences in its evaluation of past experience. The Tribunal determined that “the current RFP unduly and inappropriately allocates points to bidders with more experience.” More specifically, the Tribunal noted that awarding 29 points to proponents with the experience of seven years and seven projects was a disproportionate hidden preference when compared to awarding another proponent with five years experience and five projects only seven points. The Tribunal determined that the evaluators “failed to explain how an additional year or an additional project or two could warrant the award of the number of points contemplated in the RFP.” The Tribunal ordered the government to cancel its procurement process and redraft and re-tender its requirements with a more transparent and rationally balanced evaluation scheme.

In its March 2006 decision in United Paradigm Corporation, the U.S. Government Accountability Office (GAO) ordered the Department of the Air Force to conduct a re-evaluation after determining that the initial evaluation of past experience was unreasonable. The dispute stemmed from a Request for Proposals (RFP) for fuel management services at the Wright-Patterson Air Force Base in Ohio. The evaluation turned on the assessment of past performance and price, which were weighed almost equally in the assessment of “best value.” The GAO determined that the Air Force’s evaluation of prior performance was based on the following undisclosed “relevance” rating that was unreasonable because it penalized those with relevant experience by averaging it against their less-relevant experience, an approach that was both non-transparent and irrational. The GAO therefore ordered a re-evaluation of past performance. In the event that the re-evaluation changed the initial outcome, the GAO ordered that the originally awarded contract be terminated and re-awarded based on the new evaluation ranking. As this case illustrates, purchasing institutions should be transparent and rational in their evaluation procedures, including those that assess past performance.

In its July 2006 determination in Re Mircom Technologies Ltd., the Canadian International Trade Tribunal upheld the rejection of a complainant who had failed to meet the prescribed corporate experience requirements. The dispute dealt with a Department of National Defence solicitation for navy ship damage control and alarm systems that called on bidders to show a minimum of six months corporate experience working with the types of systems in question. While the complainant submitted information about the individuals hired by the firm who had relevant past experience, the Tribunal determined that the experience of those individuals was insufficient to meet the “corporate experience” requirements since the hiring of those individuals did not translate into “models, theories, templates, processes etc. produced during the [relevant] projects which might have led to the conclusion that it had acquired the necessary corporate experience.” The Tribunal therefore upheld the government’s decision to reject the bid. As this case illustrates, purchasing institutions should be careful to distinguish between corporate experience requirements and individual experience requirements when designing and applying their past experience criteria.

In its October 2006 decision in I.M.P. Group Ltd. v. Canada (Minister of Public Works and Government Services), the Federal Court of Canada upheld a government evaluation decision that accepted the experience earned by a bidder’s sister company as counting towards that bidder’s past experience. The dispute dealt with a Canadian Forces procurement of airframe maintenance and support services for a fleet of CC130 Hercules Aircraft. A losing bidder challenged the evaluation process, claiming that the contract was awarded to a non-compliant bidder who did not have the required five years of experience in the prior eight years. In fact, the winning bidder had not even been incorporated for five years. However, the government accepted the past experience of the bidder’s sister company as counting towards the past experience. The Tribunal upheld this evaluation decision. As this case illustrates, to avoid after-the-fact controversy and defend against potential bid protests, purchasing institutions should clarify whether past experience requirements can be satisfied by related companies and the conditions surrounding acceptance of that related experience.

In its December 2006 determination in Antian Professional Services Inc. v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal found that the government’s evaluation of past experience was unreasonable since it focused on the breadth rather than the depth of past experience. The dispute dealt with a procurement process for exhibit management services and personnel. The Tribunal found that focusing on breadth of experience over depth of experience was unreasonable since the solicitation document was “neutral as to whether depth or breadth of experience, or a combination of the two, is sought.” The Tribunal therefore ordered partial lost profits to the complainant and ordered the government to re-tender its requirements at the end of the initial contract term. As this case illustrates, purchasing institutions should avoid applying any hidden preferences when evaluating past experience and should instead disclose any preferences that they plan to apply during their evaluations.

In its March 2007 decision in Phil’s Expert Tree Service, Inc. v. Broward County School Board, the Florida Division of Administrative Hearings upheld the rejection of a three-year-old company for failing to meet the five-year minimum experience requirement set out in the solicitation. The case dealt with a tendering process for a tree trimming contract. The case turned on whether the five-year past experience requirement could be met by company personnel so that companies that were in existence for less than five years could still be eligible for award. The Court ruled that the experience had to be established at the company level to meet the requirements of the Request for Proposals and that this experience requirement could not be met by simply showing evidence of the past experience of current employees. The Court ultimately determined that any bidder who was not in the tree trimming business for at least five years was ineligible for the contract award. As this case illustrates, purchasing institutions should be careful in how they define and interpret experience requirements, since the distinction between company experience and the collective past experience of current company staff can create confusion in the evaluation of the experience requirements.

In its March 2007 decision in L-3 Communications Titan Corporation, the U.S. Government Accountability Office (GAO) issued a re-tender and re-evaluation order against the Department of the Army after finding that the Department relied on undisclosed evaluation criteria in making its initial contract award. The case dealt with a Request for Proposals (RFP) for a $4.6 billion interpretation and translation services contract for the US armed forces in Iraq. The complainant challenged the Department’s evaluation process, arguing that its past experience requirements were not assessed in the manner set out in the RFP. The GAO agreed, finding that the Department was under a duty to follow the evaluation criteria set out in its RFP, and finding that the Department breached that duty when it replaced its stated evaluation scheme with an undisclosed pass-fail methodology. The GAO ordered the Department to amend its evaluation criteria to ensure consistency between the evaluation criteria in the RFP and the actual evaluation criteria. It also ordered the Department to obtain revised proposals and to evaluate them against those revised criteria. Misalignments between stated and applied evaluation criteria can undermine the integrity of a tendering process. To prevent unnecessary legal disputes, institutions should ensure that staff assigned to conduct evaluations have the appropriate training to follow proper evaluation protocols and adhere to the pre-established evaluation criteria.

In its January 2008 decision in Touro Contracting Corporation, the New York State Comptroller found that the State University of New York listed ten years of past experience required in its public advertisement but included less onerous requirements in its actual Invitation for Bids. As the Comptroller stated, a potential bidder that could have performed the work but did not have the ten years’ experience required in the notice “would have reasonably concluded that it was not qualified to bid on the project and would not have requested the actual bid specifications.” It therefore rejected the contract award and ordered a re-tender. As this case illustrates, purchasing institutions should ensure that they maintain consistency in their application of past experience requirements throughout their procurement process.

In its November 2008, determination in Re Joint Venture of BMT Fleet Technology Limited and NOTRA Inc., the Canadian International Trade Tribunal rejected a complaint after finding that the complainant had advanced an overly restrictive interpretation of a mandatory requirement when asserting that the contract was awarded to a non-compliant competitor. The dispute dealt with a Department of National Defence Request for Proposal for technical and engineering management services. The criterion in question required bidders to “demonstrate that each proposed resource has a minimum of four (4) years experience as a Nuclear Advisor with respect to Canadian nuclear regulations and standards within the last ten (10) years.” While the term “nuclear advisor” was not defined, the complainant argued that the experience had to be connected to work licensed by the Canadian Nuclear Safety Commission or the Director General Nuclear Safety. However, the Tribunal disagreed, finding that this interpretation was too narrow and that the experience could be shown in relation to projects from other institutions. Further, the complainant argued a narrow interpretation of “with respect to”, maintaining that the work relied on by the competing bidder fell outside the scope of the requirement. However, the Tribunal once again disagreed. Citing case law interpretations of the phrase, the Tribunal ruled that the term “with respect to” should be afforded a broad meaning and that a broad range of related experience was therefore acceptable to meet the requirement. This case serves as a reminder of the high degree of interpretive scrutiny that past experience requirements will be subject to when they are scored on a mandatory all-or-nothing pass-fail basis. It also serves as a reminder of the need to be precise in defining those requirements given the risk of interpretive dispute.

In its November 2009 determination in Meta-Business Advantage Ltd. v. Canada Revenue Agency, the Canadian International Trade Tribunal ordered a re-evaluation after finding that the government relied on a vague past experience requirement. The dispute involved a solicitation for process improvement services that stated that “The Offeror must provide summaries of five (5) projects completed within ten (10) years from the date of offer submission in the areas of process improvement services, where the Offeror was the primary contractor responsible for the projects.” The Tribunal determined that the government’s interpretation of “project”, which was not defined in the solicitation, was too restrictive and that the complainant’s bid was evaluated unreasonably. More specifically, the Tribunal determined that the term “project” should be given a broad meaning and that the chronological overlap between the second and third project provided by the bidder did not mean that they were the same project as assessed by the government. Rather, they should have been considered two separate projects for the purposes of meeting the past experience requirement. The Tribunal therefore ordered a re-evaluation. As this case illustrates, purchasing institutions should avoid interpreting past experience criteria in an overly restrictive or unreasonable manner since those interpretations can be subject to after-the-fact challenges by losing bidders.

In its November 2009 determination in Femme Cachee Productions Inc. v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal determined that the government applied hidden past experience criteria. The dispute involved a video production services Request for Proposal for Parks Canada. The government applied an undisclosed criterion requiring that at least three of the proposed team members had worked together on a past project. The Tribunal determined that the government never disclosed this requirement, but it only awarded complaint costs against the government since the requirement in question was a scored requirement rather than a mandatory requirement and the impacted scoring had no bearing on the final bidder rankings. As this case illustrates, the evaluation of past experience as a scored, rather than mandatory, requirement helps to contain the impact of imperfections to the evaluation process since minor scoring variations have less impact on the outcome of the evaluation when compared to pass-fail tender compliance assessments.

In its February 2010 determination in Argair Aerospace Limited v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal found that evaluators improperly rejected the complainant proposal based on the improper assessment of past experience. The dispute involved a Request for Proposal for mechanical engineering support services for the Department of National Defence. The Tribunal determined that the past experience criterion could be interpreted in two ways, as requiring on-site experience with the relevant government department, or allowing for on-site or off-site experience. The Tribunal determined that the narrower first interpretation, which was applied by the government, was unnecessarily restrictive, and ruled in favour of the broader latter interpretation that allowed for off-site experience. As the Tribunal stated, “the scope of the requirement at issue, as written, was incorrectly interpreted by PWGSC”, which resulted in the improper rejection of the complainant’s past experience. The Tribunal awarded the complainant its bidding and complaint costs and ordered the government not to extend the improperly awarded contract beyond the initial one-year term. As this case illustrates, the failure to draft clear experience requirements, or the unnecessarily restrictive interpretation of those requirements, can undermine the future defensibility of evaluation and award decisions.

In its January 2011 determination in Falconry Concepts v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal upheld the rejection of the complainant’s bid for failing to meet the past experience requirements. The dispute involved a wildlife control services Request for Proposal for Department of National Defence aircraft runways that required prior “Wildlife Services Contract experience”. The solicitation failed to define “contract experience”, which led to an interpretive dispute over whether the rejected complainant could rely on past employment experience. The Tribunal determined that past employment experience did not meet the requirement, noting that while “an employee fulfills contractual obligations towards his employer, an employee does not, in law, perform the contracts entered into by his employer.” The Tribunal therefore concluded that “the fact that a contractor hires an employee to assist it in discharging its obligations under a contract does not qualify the employee to report having performed the contract.” While the Tribunal upheld the rejection of the complainant’s bid, it also noted that the government’s failure to define the requirement led to a bid protest that could otherwise have been avoided through clearer drafting.

In its January 2012 determination in Almon Equipment Ltd. v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal dismissed a losing bidder’s allegations that the past experience requirements unfairly favoured the incumbent over other bidders. The dispute dealt with an aircraft de-icing and glycol recovery services solicitation for the Department of National Defence, which required that operators have two years experience in the prior three years and that their proposed personnel have one year experience in the prior two years, both of which were required under the same or similar climactic conditions as those found at the military base in question. The complainant claimed that the experience requirements were overly restrictive and biased. The Tribunal disagreed. Since recently updated federal regulations called for more stringent chemical handling standards and operators could obtain the required experience across multiple airports across Canada, the Tribunal agreed that the past experience criteria constituted legitimate operational requirements for dealing with winter weather conditions and related safety standards for emergency flight operations. The Tribunal’s ruling was subsequently upheld as reasonable in the December 2012 decision of the Federal Court of Appeal in Almon Equipment Ltd. v. Canada (Attorney General). As this case illustrates, purchasing institutions should be ready to show how their past experience criteria are tied to legitimate operational requirements in order to defend those criteria against allegations that they are unnecessarily restrictive to competition.

In its January 2012 decision in Clinton (t/a Oriel Training Services) v. Department for Employment & Learning, the High Court of Justice in Northern Ireland, Queen’s Bench Division, struck down a contract award after finding that the government relied on vague and hidden evaluation criteria. The dispute dealt with an Invitation to Tender (ITT) issued by the Department for Employment and Learning for the award of a contract for the provision of a publicly funded training and apprenticeship program in Northern Ireland. An unsuccessful bidder challenged the evaluation of its past experience, arguing that the government improperly lowered its score based on unclear evaluation requirements.

The dispute turned on the interpretation of the Selection Criterion No. 1 in the Request for Proposals, and on whether that criterion could reasonably be interpreted to require bidders to provide supporting data to establish the training “outcomes” that they had achieved in prior training assignments. The government maintained that the evaluation criterion was sufficiently clear to allow an experienced bidder to understand that backing data regarding training outcomes should have been provided with its bid. However, the complainant argued that the criterion was insufficiently clear and that it could have provided that data to avoid the rejection of its bid had the solicitation document clearly requested that information. The Court agreed with the bidder and concluded that the government evaluators applied improper hidden evaluation factors since the criterion in question was too vague to support the requirement of supporting data. The Court also rejected the argument of the government evaluators that the term “outcome” had a sufficiently well understood industry meaning to support the provision of backing data as an implied requirement under the challenged criterion.

The Court therefore concluded that the government’s evaluation decision was legally invalid, a decision that was subsequently upheld in a November 2012 decision by the Court of Appeal in Northern Ireland. As this case illustrates, purchasing institutions should strive for clarity in drafting their evaluation requirements and should not assume that they can enforce specific past experience requirements under vaguely drafted criteria by relying on arguments that the detailed information could be read in as implied “industry standards”.

In its February 2012 decision in LMGI, Ltd. And Summit Security Services, Inc., the New York State Comptroller found a series of significant evaluation errors in a medical fraud investigation services Request for Proposals issued by the New York State Office of Medicaid Inspector General, Division of Medicaid Investigations (referred to in the decision as OMIG). These errors included the inconsistent interpretation and application of scoring instructions when assessing bidder past experience, second-language capabilities, and experience testifying in court. While some remediation measures were apparently discussed during the process, the evaluation record did not indicate whether they were actually implemented. In its decision, the Comptroller stated that the award methodology must be balanced and fair and based on transparent factors that are consistently applied. The Comptroller also stated that criteria must be clear and scored based on reasonable conclusions. The contract award was rejected for not meeting these due process standards. As these cases illustrate, evaluation irregularities can, and often do, lead to the termination of the resulting contract awards. Public institutions should therefore exercise a high degree of due diligence in their evaluations since running a proper evaluation process in the first instance is preferable to having a contract award voided and being required to re-evaluate prior bids or re-tender to seek new bids.

In its March 2012 determination in Re Excel Human Resources Inc., the Canadian International Trade Tribunal upheld the rejection of the complainant’s bid for failing to demonstrate the required past experience. The dispute dealt with the procurement of information management architect services for the Department of the Environment (Environment Canada). The solicitation called on bidders to demonstrate that “three (3) proposed resources have each at least two (2) years of experience during the last ten (10) years in developing or supporting the development of standards or policy relating to the management and governance of data and metadata – based on internationally recognized standards and best practices.” The Tribunal determined that the complainant made reference to standards that were not in effect at the time that the experience was obtained and therefore upheld the rejection. Even though the complaint was rejected, this case illustrates the high risk of interpretive disputes created when government institutions rely on complex and open-ended past experience criteria as mandatory compliance requirements.

In its May 2012 determination in The Masha Krupp Translation Group Limited v. Canada (Public Health Agency), the Canadian International Trade Tribunal found that the government properly rejected the complainant’s bid for failing to meet past experience requirements. The dispute dealt with a translation services solicitation for the Public Health Agency of Canada that required bidders to show past experience in three specific projects for each of their five proposed translators. The Tribunal found that the complainant failed to meet the requirements since it was only able to show the required experience for three of its five proposed translators. As this case illustrates, when past experience criteria are framed as all-or-nothing mandatory compliance standards, partial compliance will be insufficient to establish eligibility for contract award.

Similarly, in its October 2012 determination in Samson & Associates v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal rejected a complainant’s protest after finding that the complainant’s past experience fell slightly short of the minimum requirements. The dispute dealt with a Request for Proposals for audit services for the Department of Indian Affairs and Northern Development that called on bidders to show 72 months of audit experience in the prior ten years. However, the complainant was only able to show 69 months of past experience for its proposed resource, which was deemed to be insufficient by the government evaluators. The complainant challenged that assessment, noting that the individual in question was promoted to a supervisory position after 69 months and that the supervisory experience should also count towards the 72-month requirement. The Tribunal disagreed, finding that “in order for the evaluators to rely on this information as evidence that the proposed resource had the requisite amount of audit experience (being six cumulative years in the past 10 years), a number of assumptions would have to be made with respect to the nature of the work that was done and the period of time during which the experience was gained.” The Tribunal determined that there was insufficient information provided in the bid for evaluators to confirm whether the proposed individual met the requirement. As this case illustrates, purchasing institutions may be compelled to reject otherwise qualified bids if they frame past experience criteria as mandatory pass-fail requirements and their bidding rules do not allow for post-bid fact-checking procedures.

Further, in its August 2014 determination in CAE Inc. v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal found that the government drew improper inferences when rejecting the complainant’s past experience. The dispute dealt with a Request for Proposals for submarine support services for the Department of National Defence that called for experience managing in-service support contracts or development projects for complex naval systems or simulators. The complainant proposed the experience of an executive officer, but the evaluators rejected that individual since an executive officer would not typically perform that type of work. The complainant challenged the evaluation, asserting that the individual had in fact performed that role and had acquired the necessary experience. The Tribunal agreed, finding that the government evaluators had engaged in flawed speculation regarding that proposed individual’s experience. While the complaint was ultimately dismissed for other reasons, this case illustrates the risk of attempting to deal with complex factual findings based on a single-submission process that does not allow for post-bid follow-up inquiries.

In its January 2016 decision in RELI Group Inc., the U.S. Government Accountability Office (GAO) ordered the government to amend and re-issue its life cycle support services Request for Proposals (RFP) after finding that its past experience criteria contained a latent ambiguity regarding whether prime bidders could rely on past experience as subcontractors. While noting that bidders generally have the onus of complaining prior to the bid deadline when they discover a patent ambiguity (such as an “obvious, gross, or glaring error”), the GAO upheld the protest, finding that the vague past experience requirement was a more subtle latent ambiguity that was subject to more than one interpretation and could therefore undermine a fair evaluation. Similarly, in its April 2016 decision in Deloitte Consulting, LLP, the GAO once again ordered a re-evaluation in the context of a management support services RFP after finding that the government had failed to properly assess the winning bidder’s past experience. The GAO found inconsistencies between the government’s defence and its contemporaneous evaluation records and determined that the winning bidder had failed to meet the necessary five-year past experience requirement. After concluding that the government’s explanations did not line up with its evaluation records, the GAO ordered the government to seek new bid submissions and conduct a new evaluation process.

In its June 2017 decision in Framan Mechanical, Inc. v. State University Construction Fund, the New York Court of Appeal upheld a decision to reject a bidder for failing to meet past performance criteria. The case dealt with a solicitation for heating, ventilation, and air conditioning upgrades at a university building. The complainant’s tender was rejected for failing to demonstrate that it had successfully performed a contract of similar size, scope, and complexity in the prior five years, since the project it relied on was the subject of another dispute between the parties. The Court upheld the rejection of the bidder for failing to provide the required past experience.

In its August 2017 determination in Smith Vigeant Architects Inc. v. Parks Canada Agency, the Canadian International Trade Tribunal found that the government conducted a flawed evaluation process by applying evaluation sub-criteria that were not specified in the relevant solicitation document. The dispute dealt with a Request for Standing Offers (RFSO) issued by the Parks Canada Agency for the provision of heritage architecture services for Parks Canada historic sites and heritage buildings. The complainant alleged that the government improperly rejected its proposal after applying an undisclosed “consecutive” prior project experience requirement and an undisclosed 40-year age requirement on prior heritage projects to the past project criteria. The Tribunal agreed with the complainant. As the Tribunal determined, the government evaluators applied hidden criteria in their assessments of the complainant’s prior related project experience and thereby breached the provisions of the applicable trade treaties. As this case illustrates, purchasing institutions should ensure that they are precise when drafting their evaluation criteria since they will not be permitted to read in requirements that are not supported by a plain language interpretation of their stated criteria. If evaluators plan to apply specific evaluation criteria, they should ensure that they define those details during their solicitation drafting process.

In its December 2018 determination in Critical Software S.A. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal rejected a non-compliant bidder’s claim after ruling that the bidder should have sought a clarification over the disputed mandatory requirement before submitting its bid. The case dealt with a Department of Defence solicitation for the design, assembly, delivery, and associated maintenance and support for a search and rescue mission system. After the complainant’s bid was rejected as non-compliant for failing to meet the prior project experience requirements, it contested this decision by asserting that the requirement in question was ambiguous. However, the Tribunal rejected the challenge, ruling that the government’s evaluation was reasonable and that the bidder should have sought clarification prior to bidding if it found the past experience requirements ambiguous.

In its December 2018 decision in Native Energy & Technology, Inc., the U.S. Government Accountability Office (GAO) ordered a re-evaluation due to unfair incumbent advantage, finding that the incumbent was scored for factors not included in its proposal based on the independent knowledge of the evaluators. The dispute dealt with a Department of Homeland Security Request for Proposals for maintenance and repair services. The complainant, Native Energy and Technology, Inc. alleged that the agency unreasonably evaluated the past performance of the incumbent. More specifically, the evaluators brought their independent prior knowledge of the incumbent’s past performance into account and awarded points for factors that were not present in the incumbent’s proposal, which is a practice that is typically prohibited since evaluation rules tend to limit scoring to content contained within each proposal. As the GAO warned, while evaluators may supplement their evaluations with personal prior knowledge of a supplier, they may not draw inferences or assumptions that are not supported by content in the supplier’s submission, and they may not provide incumbents with preferred scoring based on the assumption that the incumbent will inherently perform better than non-incumbents.

The GAO determined that the evaluators made a series of assessments that unfairly discriminated against the complainant and advantaged the incumbent. These unfair assessments included the assumption that the incumbent’s senior project manager would continue to provide weekly preventative maintenance forecasts even though the incumbent’s proposal did not include those reports. The GAO also found that evaluators assumed that the incumbent’s software system would attach information regarding permits, certifications, test results, and warranties to work orders, even though the incumbent’s proposal failed to address those technical details. In summary, the GAO concluded that the evaluators had improperly relied on their prior independent knowledge of the incumbent’s services to fill in the gaps in the incumbent’s proposal and justify their award decision. The GAO therefore ordered a re-evaluation.

In its January 2019 decision in Bristol Environmental Remediation Services, LLC, the U.S. Government Accountability Office (GAO) ordered a re-evaluation after finding that evaluators conducted an improper technical assessment of the complainant’s proposal. The dispute dealt with a Request for Proposals (RFP) issued by the Department of the Army for environmental remediation and munitions response services. The complainant alleged that the agency unreasonably rejected its proposal. The GAO agreed, finding that the complainant’s proposal was rejected for concerns over past experience when another proposal was selected after evaluators raised similar concerns about that winning proposal while providing no explanation for the disparate treatment. Furthermore, the GAO found that the complainant’s proposal was scored lower for failing to propose robotic bomb detection equipment when robotic equipment was never specified in the RFP. The GAO therefore ordered a re-evaluation of the complainant’s proposal. As this case illustrates, if a purchasing institution wants to apply specific minimum technical requirements as a basis for accepting or rejecting proposals, it must expressly disclose those requirements in its solicitation document to meet its transparency and fairness duties. The failure to disclose threshold technical evaluation requirements can result in the failure to subsequently defend evaluation and award decisions.

In its January 2019 decision in Soft Tech Consulting, Inc., the U.S. Government Accountability Office (GAO) ordered a re-evaluation after finding an inconsistent assessment of the past experience of proposed personnel in competing bids and the absence of proper contemporaneous records of the evaluation process. The dispute dealt with a Request for Quotations issued by the Department of Homeland Security for software development services. The GAO sustained the protest after finding an inconsistent evaluation of competing proposals and a lack of records to support the reasons behind the evaluation inconsistencies. The GAO also found that the government’s after-the-fact attempts to explain the evaluation irregularities were inadequate. As the GAO concluded, while subsequent explanations of an evaluation record may be accepted to explain an evaluation outcome, retroactive rationales cannot be relied on to plug holes in the original evaluation record. The GAO therefore recommended that the government re-evaluate the quotations and properly document its re-evaluation prior to making a new contract award decision. As this case illustrates, retroactive explanations are no substitute for properly conducting and documenting an evaluation process in the first instance.

In its November 2019 decision in Vane Line Bunkering, Inc., the U.S. Government Accountability Office (GAO) ordered a re-evaluation after determining that the winning bidder relied on the past experience from affiliated companies that would not be involved in the performance of the contract. The dispute dealt with a Department of Defense Request for Proposals or fuel transportation services for jet, marine diesel, and commercial fuel. The complainant asserted that the winning bidder improperly relied on the past experience of affiliated companies to meet the experience requirements even though those companies would not be involved in the performance of the contract. The GAO agreed that this was a significant flaw with the evaluation. As the GAO confirmed, evaluators could only attribute the past experience of an affiliated company where the proposal clearly demonstrates that those resources will be used in the performance of the contract. However, the GAO found that the winning bidder failed to demonstrate how its subsidiaries would be involved in the performance of the proposed contract. As this case illustrates, the evaluation of past experience can be a complex undertaking. When those factors are included in evaluation criteria, government evaluators should ensure that they verify the material information provided by competing bidders in their proposals to better ensure the defensibility of any resulting evaluation and award decisions.

In its July 2020 decision in Business Integra Technology Solutions, Inc., the U.S. Government Accountability Office (GAO) found that the State Department improperly awarded an information technology support services contract when it accepted the awardee’s past experience on a project valued at $1 million as being “the same or similar” as the project experience required for the $19 million project. The GAO ordered the Department to re-evaluate the competing quotations, properly document that review, and then make a new contract award decision.

In fact, inconsistencies in scoring procedures can result in successful legal challenges. For example, in its November 2020 decision in IDS International Government Services, LLC, the U.S. Government Accountability Office (GAO) found that the scoring rubric applied by evaluators was inconsistent with the criteria established in the solicitation document. The dispute dealt with a Request for Proposals (RFP) for operations and maintenance services in Afghanistan. The complainant alleged that the past experience criteria were scored inconsistently by the evaluators. The GAO agreed, finding that the RFP stated that the past experience of each proponent would be evaluated, whereas the scoring rubric guided evaluators to score the proponent’s “understanding and approach to the requirements.” As the GAO explained, “it is unclear whether offerors will be evaluated based solely on the information requested for this evaluation factor–i.e., experience–or whether offerors will also be evaluated based on different information concerning their understanding and approach to the requirements.” The GAO therefore sustained the protest and ordered the agency to amend its solicitation document to “clarify what offerors should address in their proposals and how the agency will evaluate proposals.” As this case illustrates, to avoid successful legal challenges, evaluators must ensure that there are no inconsistencies between the definition of the evaluation criteria in the solicitation document and the factors that are relied on to score those criteria during the evaluation process.

Similarly, in its January 2021 decision in OneSource PCS, LLC, the U.S. Government Accountability Office (GAO) ordered a re-evaluation after finding that the evaluators gave proponents points for general past experience in a scoring category that called for specialized past experience. The dispute dealt with a Request for Proposal for healthcare services, including optometry services, for the Department of the Air Force. While the solicitation called for past experience in a specialized area of optometry, namely in the care provided to patients undergoing photorefractive keratectomy (PRK) and other refractive surgeries, the evaluators assigned points to proposals that only provided past experience with general optometry services. As the GAO stated, the agency’s evaluators did not act reasonably when they determined that “experience providing personnel skilled in performing general optometry and surgical skills was similar or essentially the same as providing personnel skilled in assisting in PRK and other refractive surgery procedures.” The GAO ordered a re-evaluation. As this case illustrates, government evaluators should ensure that their evaluation scores align with how the evaluation criteria were originally defined in the solicitation documents since their scoring is subject to a high level of after-the-fact scrutiny when evaluation and award decisions are legally challenged.

Further, in its January 2021 determination in Falcon Environmental Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal ordered a re-evaluation after finding flawed evaluation records. The dispute dealt with “a Request for Proposal for the provision of aerodrome wildlife control services at Canadian Forces Base Trenton and Canadian Forces Detachment Mountain View.” The complainant challenged the evaluation process, alleging that the contract was awarded to a non-compliant competitor who lacked the required experience. The Tribunal determined that the government failed to keep adequate records of its past experience assessment, noting that “it is not permissible for government institutions to give bidders the benefit of the doubt where compliance cannot be clearly established from the information in a bid” and that the evaluator score sheets “do not reveal a rigorous consideration of the issue of the experience” of the winning bidder’s proposed project team. The Tribunal therefore ordered a re-evaluation and directed the government to create proper records during that re-evaluation.

In its March 2021 determination in Brion Raffoul v. Department of Public Works and Government Services, the Canadian International Trade Tribunal rejected a complainants claim that the government relied on unnecessarily restrictive and biased past experience criteria. The case dealt with a Request for Standing Offer (RFSO) issued by the Department of Public Works and Government Services Canada (PWGSC) on behalf of Agriculture and Agri-Food Canada (AAFC) for patent agent services. The complainant took issue with the RFSO’s mandatory evaluation criterion that required bidders to have successfully prosecuted one patent family, in which the patents were issued in Canada, the United States, and at least two other countries outside of North America, and where each patent was issued in the past ten years. The complainant alleged that the ten-year time limit and the geographical restrictions were unreasonable, arguing that the time limit did not recognize the reality of prosecuting a patent family, the timing of which is largely outside the control of the patent agent. The Tribunal rejected these arguments, finding that the need to show recent experience in the relevant jurisdictions was a legitimate operational requirement. This case also serves as a reminder to public institutions that, when challenged, they bear the onus of proving that their past experience criteria are rationally connected to the legitimate operational requirements and do not unnecessarily restrict competition.

Similarly, in its April 2021 decision in SL Ross Environmental Research Limited v. Department of Fisheries and Oceans, the Canadian International Trade Tribunal rejected a challenge based on allegations that the government had improperly scored the complainant’s past experience. The dispute dealt with a Department of Fisheries and Oceans Request for Standing Offer (RFSO) for the provision of scientific and technical advisory services on matters related to environmental incidents, response measures, and emerging technologies. To be eligible for award, bidders had to meet a minimum technical score of 80 points out of 110 points. The complainant failed to meet that minimum score and then took issue with the scoring of its prior project experience. More specifically, the complainant challenged the determination the government evaluators had made that there was duplication in the projects submitted in the complainant’s bid. The Tribunal agreed with the evaluators, finding that there was duplication in the projects named in the complainant’s bid and finding that those projects could not be scored twice in the evaluation. In coming to this determination, the Tribunal also rejected the complainant’s assertion that, based on its international reputation, it should have been given the benefit of the doubt by the government evaluators when they scored its past experience. As the Tribunal concluded, the complainant’s reputation in the field “was not part of the evaluation criteria in the RFSO and that relying on such subjective information would have been unfair to other bidders.” In fact, the Tribunal noted that the complainant’s international reputation “would be an external factor not contemplated by the RFSO or in particular the rated technical criteria” and its consideration in the evaluation process would be contrary to the government’s obligations under the trade agreements. The complaint was therefore dismissed.

Further, in its April 2021 decision in QMAC Construction Ltd v. Northern Ireland Housing Executive, Northern Ireland’s High Court of Justice ruled that the government housing agency breached the bidding rules by disqualifying the incumbent for failing to submit a past experience certificate before the bid deadline. The dispute involved an Invitation to Tender for maintenance services where bidders were required to submit a “Certificate of Technical and/or Professional Ability” from prior clients. The incumbent sought the required certification from the housing agency as a client so that the document could be included in the bid package. However, due to internal approval delays, the housing agency failed to provide the incumbent with the required certificate prior to the bid deadline. The agency then disqualified the incumbent after claiming that it had no discretion to accept the document from the incumbent after the deadline. The incumbent challenged the disqualification decision. The Court upheld that challenge, ruling that the agency should have exercised its discretion to allow the bidder to formally submit the certificate, which was already in the agency’s possession as the issuing body, after the deadline. In fact, the Court concluded that it was the unnecessarily complicated internal government approval process that resulted in delaying the incumbent’s certificate in the first place. This case underscores the unnecessary risks created by vague and restrictive bid compliance rules that create uncertainty over the government’s ability to allow bidders to rectify non-compliance in their bid submissions. Had the bidding rules in question more clearly allowed for a rectification process, the resulting legal dispute, which ultimately resulted in the Court overruling the incumbent’s disqualification and ordering the government body to accept the delayed certificate, could have been avoided.

As this long line of cases illustrates, past experience criteria have repeatedly been the subject of bid protest challenges. Purchasing institutions should therefore exercise a high degree of precision in drafting and applying those requirements to better ensure defensible evaluation and award decisions.