This article is an extract from the 5th edition of Government Procurement.
In its July 2022 determination in PricewaterhouseCoopers LLP v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal rejected a complaint after finding that the government evaluators conducted a reasonable evaluation process. The dispute dealt with a solicitation issued by the Department of Public Works and Government Services on behalf of the Department of National Defence for the provision of supply chain identification and risk assessments for military defence systems. While the complainant alleged that the evaluators failed to score its bid in accordance with the published evaluation criteria and overlooked relevant information provided by the complainant regarding its past experience assessing similar systems, the Tribunal disagreed and concluded that the evaluation was reasonable.
More specifically, as the Tribunal explained, “bidders were required to demonstrate that they had analyzed a complex system, with the value of the system serving as a proxy for its complexity” in which maximum points “were awarded for a system with a value of $5 billion or above.” However, the parties disagreed on how to quantify the value of a system for the purposes of scoring the past experience. While the complainant argued that the system in question had an annual operating budget of $8 billion, the government argued that the project experience information provided in the bid was insufficient to allow evaluators to equate the annual operating budget of the system with the value of that system since the annual operating costs could include costs that were in addition to the actual system costs. The Tribunal agreed with the government, noting that the operating costs for a system were not the same as the value of the system.
While the Tribunal ultimately rejected the complaint after noting that the interpretation of “system” and “value” used by the bidder in preparing its bid were inconsistent with the plain meaning of those terms, the Tribunal also noted that the government could have avoided the interpretive dispute by adopting a more precise approach to describing the evaluation criteria. As this case illustrates, a more precise approach to drafting evaluation criteria can help avoid evaluation challenges. A proactive approach to drafting transparent solicitation documents helps to mitigate against legal disputes.
