This article is an excerpt from the 2020 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
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, government evaluators applied hidden criteria in their assessments of the complainant’s prior related project experience since they applied an unstated requirement that the “related” projects had to be performed in “consecutive” order when the “consecutive” requirement was not specified in the solicitation document:
Interpretation of the Term “Related”
According to SVA + ABCP, the lack of clarity in the terms of mandatory requirement 3.1.5 became apparent only when Parks Canada disclosed the reasons in support of the rejection of its proposal. More specifically, SVA + ABCP alleges that at the March 2, 2017, debriefing session, Parks Canada told it that the term “related” meant that the projects submitted for personnel No. 1 had to be “consecutive” – an allegation that Parks Canada did not contradict in the context of this inquiry.
Because the term “related” is not defined in the RFSO, the Tribunal considered its ordinary meaning, which is “joint, linked, tied, akin” and “that is closely associated with something else”
Furthermore, the English version of the RFSO uses the term “related experience” for “expérience connexe”. The Tribunal is of the view that the ordinary meaning of this term, considered in the context of requirement 3.1.5 of the RFSO, cannot reasonably be interpreted as meaning that the experience had to be acquired through “consecutive” projects.19 Consequently, the Tribunal accepts that SVA + ABCP could not have known, prior to filing its proposal, that the evaluators would interpret this criterion in this manner. In this regard, the Tribunal finds that the evaluators applied an undisclosed criterion in their evaluation of SVA + ABCP’s proposal.
Furthermore, with respect to the age of the heritage buildings for the required prior projects, the Tribunal found that the evaluators applied a minimum 40-year age limit when that restriction was not defined in the relevant evaluation criteria. Rather, the age of the buildings was only mentioned in passing in the solicitation document without any connection to specific prior experience requirements:
Interpretation of the Term “Built Heritage”
Although SVA + ABCP admits that the term “built heritage” was defined in paragraph 1 (“Abbreviations and definitions”) in the “Required Services (RS)” section of the RFSO, it argues that the Evaluation Board adopted a “different” and/or “more stringent” interpretation than the definition.
In the reasons for rejection and, to a greater extent, in the GIR, Parks Canada maintains that SVA + ABCP’s proposal did not demonstrate that the projects submitted for the resources at issue were all related to buildings “older than 40 years of age,” contrary to what is mentioned in section 2.3 of the RFSO (“Overview of Sites Covered by this Standing Offer”).
…
That the sites covered by the Standing Offer are, in most cases, older than 40 years of age is irrelevant for the purposes of evaluating mandatory requirement 3.1.5, because this quantitative threshold was not included in the criteria of requirement 3.1.5, nor was it mentioned in the definition of “built heritage” in the RFSO.
Essentially, in evaluating SVA + ABCP’s proposal, the evaluators introduced a minimum 40-year threshold in this definition based on the general description of the sites covered in subsection 2.3.
The Tribunal therefore determined that Parks Canada breached the provisions of the applicable trade treaties by applying hidden criteria to its evaluation of prior project experience.
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.
