This article is an extract from the 5th edition of Government Procurement.
In its March 2016 determination in The Masha Krupp Translation Group Ltd. v. Canada Revenue Agency, the Canadian International Trade Tribunal ordered the government to retender a challenged contract award and pay the complainant lost profit compensation until a new contract was awarded. The dispute dealt with a request for proposal for translation and editing services valued at $35 million over 7 years. The complainant challenged the validity of the evaluation process, arguing that the government evaluators applied hidden and subjective evaluation criteria and scoring mechanisms into their reference checks. The Tribunal agreed, noting that the improper reference checks used a non-transparent scoring process that damaged the evaluation results beyond repair:
MKTG alleged that the CRA introduced subjectivity in the evaluation process and thus relied on undisclosed evaluation criteria in conducting the reference checks. The Tribunal finds that the CRA did in fact undertake the reference checks in a manner that did not comply with the stated evaluation criteria.
The evidence contained in the affidavit filed as Annex 1 to the CRA’s GIR states the following:
4. Each evaluator completed an “Individual Scoring Grid”. . . . Then, the evaluators met and, using their Individual Scoring Grids, completed a “Consensus Scoring Grid”.
. . .
8.. .We spoke with [a reference] and his colleague [a non-reference] of the CRA on July 6th, 2016 around 9:30am. . . .
9. . . .When the reference seemed unsure as to their choice between two numbers, we offered the option to give a half-point (ie. 3.5 or 4.5). In all three cases, Masha Krupp’s references gave them a score of 4 out of 5. . . .
[Emphasis added]
The Tribunal finds that this evidence demonstrates that the CRA evaluators acted improperly by involving a non-reference in the exercise. They further altered the integrity of the exercise by prompting half-point answers when conducting reference checks when the option to award half points was clearly not provided for by the RFP. In fact, the evaluation grids show that CLS was awarded a half-point, whereas MKTG was not. Further, there is conflicting evidence as to whether all references were given the opportunity to provide half-points.The Tribunal finds that the awarding of half-points resulted in an impermissible translation of the references’ numerical satisfaction rating (on a scale of 0 to 5) into a final score (on a scale of 0 to 6). Instead, the evaluator’s subjective discretion was used to arrive at the final score.All these actions compromised the evaluation beyond repair.
As this case illustrates, reference checks must be performed with the same level of transparency and rigour that applies to all other aspects of a bid evaluation. The failure to meet these standards when performing a reference check can compromise the defensibility of an evaluation and award decision.
