This article is an excerpt from Government Procurement, which is available for purchase.
In its October 2012 determination in Samson & Associates v. Department of Public Works and Government Services, the Canadian International Trade Tribunal upheld the government’s decision to reject a non-compliant bid for failing to meet mandatory past experience requirements. The case dealt with Department of Indian Affairs and Northern Development RFP for the provision of internal audit and information technology and systems audit services.
The complainant submitted a proposal that was rejected since one of its proposed personnel failed to meet the required minimum experience threshold. It subsequently challenged that decision:
On July 18, 2012, PWGSC advised Samson that its proposal did not comply with mandatory technical criterion MT1 and, therefore, its proposal was deemed non-compliant. More specifically, it informed Samson that one of its proposed resources for Project Manager/Leader only demonstrated 69 months of audit experience when 72 months (i.e. six years) were required. In the same correspondence, PWGSC indicated that five contracts had been awarded.
On July 18, 2012, Samson made an objection by e-mail to PWGSC. On July 19, 2012, PWGSC replied that the proposed resource did not demonstrate clearly the required six years of audit experience in the last 10 years, including at least two years in internal audit. That same day, Samson wrote to PWGSC stating its disagreement and requesting that PWGSC review its decision.
On July 27, 2012, Samson filed its complaint with the Tribunal. On July 30, 2012, Samson filed a paper copy of its complaint including additional documents. (paras. 10-12, footnotes omitted)
The Tribunal engaged in a detailed analysis of the relevant past experience requirements and of the government’s assessment of the information provided by the rejected proponent. It ultimately concluded that the proponent failed to establish that its proposed resource met the minimum requirements set out in the RFP:
With respect to mandatory technical criteria MT1 and MT4, and section 5.1 of the SOW, the information found on page 1 of the proposed resource’s résumé in Samson’s bid included the following statement:
As Director, Corporate Audit,
[the proposed resource] was instrumental in establishing and leading the internal audit organization in a major federal government Agency. During his tenure he completed numerous audits that resulted in improving the existing management practices within the Agency.The Tribunal notes that these two sentences do not provide specific details about the type of audit work that may have been done by the proposed resource. The Tribunal also notes that these two sentences do not refer to the years in which this experience was gained. As such, the Tribunal agrees with PWGSC 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.
Even if these two sentences relating to the proposed resource’s role as Director of Corporate Audit were read in conjunction with page 2 of the proposed resource’s résumé, which indicates that the position was held from 2000 to 2008, the Tribunal finds that the evaluators would still have had to rely on certain assumptions.
For example, there was very limited information provided with respect to the specific audit-related experience that the proposed resource gained in his role as Director of Corporate Audit, or the amount of time that he spent working in an audit function as opposed to a management function. This is especially evident when compared to the level of detail provided in the project experience section of the résumé (which also failed to establish six cumulative years of audit experience in the past 10 years). (paras. 30-33)
Since the Tribunal found that the evaluators would have to draw inferences that were not necessarily supported by the facts set out in the proposal, it determined that the government was not unreasonable in rejecting the proposed resource and disqualifying the proponent. The complaint was therefore dismissed. As this case demonstrates, the assessment of past experience continues to attract a disproportionate number of bid protest challenges. Purchasers would therefore be wise to ensure that their screening methods are sound and transparently disclosed in their solicitations. Wherever possible, they should also ensure that such evaluations are conducted by way of pre-qualifications that permit the rectification of factual discrepancies rather than during a formal bidding process where such discrepancies can prove fatal to otherwise viable proposals.
