This article is an extract from the 5th edition of Government Procurement.
The use of fairness advisors has recently been subject to legal disputes that underscore the importance of establishing policies to identify when fairness advisors are required and to define their role within a procurement process.
For example, in its February 2019 determination in Temprano and Young Architects Inc. v. National Capital Commission, the Canadian International Trade Tribunal confirmed that there is no duty to use fairness monitors in group evaluations and that averaging individual evaluator scores rather than conducting group consensus scoring sessions is an acceptable evaluation practice. The dispute dealt with a Request for Standing Offers (“RFSO”) issued by the National Capital Commission (“NCC”) for the provision of architectural consulting services on an “as and when requested” basis. The complainant challenged the evaluation process, arguing that, amongst other things, the NCC failed to ensure a fair and unbiased evaluation since it failed to conduct a group evaluation process overseen by a fairness monitor.
The Tribunal disagreed, finding that the NCC conducted the evaluation in accordance with the criteria and essential requirements specified in the RFSO. More specifically, the Tribunal confirmed that even in instances where suppliers were required to meet a minimum scoring threshold in a specific evaluation category, averaging individual scores instead of conducting group consensus scoring sessions was an acceptable method of arriving at final evaluation scores.
The Tribunal also rejected the complainant’s assertion that the absence of a fairness monitor compromised the evaluation process. Rather, the Tribunal found that the NCC met its due diligence duties without using a fairness monitor and confirmed that there was nothing in the trade treaties that compelled the use of a fairness advisor:
The contracting authority exercised due diligence and insured a fair and unbiased review
With respect to the issue of the absence of a fairness monitor, as raised by the complainant, there is nothing in the RFSO or any of the trade agreements that require the use of a fairness advisor, and the absence of one does not demonstrate that a procuring entity failed to exercise due diligence or insure fairness. As such, there is no foundation for this allegation.
The Tribunal therefore determined that the complainant’s grounds of complaint were invalid and rejected the bid protest. As this case illustrates, public institutions are not required by the trade treaties to use fairness monitors to oversee their evaluations.
Similarly, in its October 2018 decision in CG Acquisition Inc. v. P1 Consulting Inc., the Ontario Superior Court of Justice summarily dismissed a $150 million damages claim brought by a losing bidder in a negotiated request for proposal (“RFP”) process. That decision was appealed to the Ontario Court of Appeal. However, as discussed below, that appeal was dismissed in an October 2019 ruling.
As the trial court noted, the case dealt with an RFP for the Liquor Control Board of Ontario (“LCBO”) to “negotiate with the LCBO and, if successful in negotiations, finalize an agreement related to the proposed sale and subsequent redevelopment of land located along the Toronto waterfront”. P1 Consulting Inc. was hired as a fairness monitor on the project, which was also sponsored by Infrastructure Ontario.
The plaintiff, CG Acquisition Inc., was an unsuccessful proponent that was disqualified during that RFP process. It brought the claim for damages against the LCBO, Infrastructure Ontario, and P1 Consulting Inc., arguing that they breached their duty of fairness by not including P1 Consulting Inc. in the disqualification decision and by refusing to reconsider that decision. However, the court dismissed the claim, finding that the fairness monitor was a consultant for the purchasing institutions and owed no duty to the proponents.
While the plaintiff appealed this decision, the Ontario Court of Appeal, in its October 2019 ruling, determined that there had been no breach of any fairness duties and rejected the appeal. As the Court of Appeal noted, the appellant did not challenge the validity of its original disqualification, but instead challenged the decision not to reinstate it proposal after a reconsideration, and challenged the failure to include the fairness monitor in that reconsideration decision. However, as the Court of Appeal determined, there was no requirement to include the fairness monitor in the reconsideration decision, which was made after having received legal advice, since the fairness monitor was not a decision-maker or evaluator, and it had no authority to provide legal or quasi-legal advice.
The Court of Appeal concluded that the reconsideration of the plaintiff’s disqualification had been conducted appropriately by the purchasing institutions after having sought legal advice, and that not having obtained the advice of the fairness monitor prior to making the reconsideration decision did not impact the fairness of that decision.
These cases serve as a useful reminder that project teams should be careful to properly define the roles and responsibilities of various members of their advisory team and should carefully adhere to the distinction between evaluators, decision-makers, procurement advisors, and legal advisors. While some purchasing institutions may elect to retain the services of fairness advisors to supplement their process, those services should be in addition to, and not a substitute for, obtaining appropriate procurement and legal advice in connection with their major procurement projects.
