This article is an extract from the 5th edition of Government Procurement.
In its February 2022 determination in University of Guelph, Laboratory Services Division v. Canada (Department of Public Works and Government Services), the Canadian International Tribunal rejected a complaint after finding that the complainant failed to properly follow the government’s electronic bid submission instructions. The dispute dealt with a request for proposal (“RFP”) for laboratory services issued by the Department of Public Works and Government Services (“PWGSC”) on behalf of the Canadian Food Inspection Agency for testing for chemical residue contaminants of foods, food crops and tissues of food animals.
While the University of Guelph brought a bid protest alleging that the government improperly rejected its bid submission, the Tribunal rejected that complaint after finding that the complainant failed to properly follow the bid submission instructions, which required bidders to pre-register a new “conversation” on the bidding system at least six days in advance of the bid submission deadline. The Tribunal found that instead of opening a new “conversation” on the bidding system as instructed, the complainant mistakenly used an old “conversation” that was not linked to the new bidding opportunity when it submitted its bid, which left the government’s Bid Receipt Unit (“BRU”) with no choice but to reject the submission:
The evidence in this matter shows that the University of Guelph did not follow the bid submission procedures set out in the SACC Standard Instructions that were incorporated by reference in the solicitation documents. It mistakenly believed that a previously opened epost Connect conversation could be used to submit its bid package. That belief was incorrect. That epost Connect conversation was entirely unrelated to the solicitation in issue and did not originate from the BRU. The recipient was not related to the BRU and it did not reference the BRU’s email address. The epost Connect message field of the conversation also did not reference the bid solicitation number as the instructions indicate it was supposed to. The University of Guelph did not realize this until it was too late. The University of Guelph should have opened a new epost Connect conversation with the BRU, one specifically dedicated to the solicitation in issue, in order to submit its bid, but it did not. Accordingly, its bid was not received in the proper manner. If the University of Guelph had followed the steps set out in the SACC Standard Instructions, it may have realized its misunderstanding of the bid transmission instructions and procedures in time to rectify the situation. When it realized that something had gone wrong, the University of Guelph eventually contacted the BRU after the bid closing time. That contact was itself too late, because the BRU could not turn the clock back at that stage.
The Tribunal ruled that it could not rewrite the bid submission rules after-the-fact to allow for the acceptance of the improperly submitted bid:
The errors that the University of Guelph committed and the reasons why it acted as it did are unfortunate but cannot be erased. In effect, the University of Guelph is pleading for tolerance. The Tribunal cannot rewrite the terms of the solicitation. Section 08 of the SACC Standard Instructions were clear. Bidders are required to send, at least six days in advance, an email that includes the bid solicitation number to the BRU requesting to open an epost Connect conversation. The BRU would then initiate an epost Connect conversation with the bidder, which would “create an email notification from Canada Post Corporation prompting the Bidder to access and action the message within the conversation” through a hyperlink received by email. The bidder would then be able to use the link to access the epost Connect conversation that would be used to submit its bid. The University of Guelph did not follow those instructions.
Further, the Tribunal found that the complainant compounded the problem by contacting Canada Post, the third party that administered the electronic tendering system, for pre-bid clarifying instructions, instead of following the solicitation instructions and creating a new “conversation” so that it could contact the government’s BRU directly to confirm that it had properly registered to submit a bid:
Any confusion that may have been compounded by the University of Guelph’s reliance on answers obtained from Canada Post, and assumptions made regarding an already opened conversation in its epost Connect mailbox, may explain why the University of Guelph acted as it did, but it does not excuse its fundamental failure to follow the instructions in the solicitation documents. There is no mention to contact Canada Post in the RFP or in section 08 of the SACC Standard Instructions. The SACC Standard Instructions make it clear that Canada Post is not PWGSC, as well as the converse, and that neither has responsibility or can speak for the other. The University of Guelph had to initiate an epost Connect conversation with the BRU and it did not. The solicitation documents indicated that the BRU would be the conduit for confirmations and, until that conduit was set up, no confirmation was possible.
The Tribunal also rejected the complainant’s assertions that the bidding instructions were unclear and failed to provide proper guidance to bidders, finding instead that the complainant failed to comply with the procedures that were clearly set out in the solicitation instructions:
The University of Guelph claims that the solicitation documents were not helpful to bidders that found themselves in the situation that it experienced, specifically where a bidder had an existing epost Connect account with an open conversation within epost Connect. The University of Guelph argues that the situation was such that it relied on what it believed to be guidance from Canada Post and that consequently it ought not be penalized. The Tribunal is not convinced by those arguments. The fairness obligations under the trade agreements do not require comprehensive troubleshooting scenarios in the solicitation documents. In the first instance, the problems encountered by the University of Guelph were of its own causing, as it simply did not follow the SACC Standard Instructions that were set out as it should have.
In effect, the University of Guelph did not establish the epost Connect conversation in accordance with the directions of SACC Standard Instructions. Specifically, it did not send an email, at least six days prior to bid closing time, to the BRU following paragraph 2(b)(ii) of section 08.
The Tribunal also confirmed that bidders bear the onus of meeting mandatory requirements and that the complainant failed to seek clarifying instructions directly with the government’s contact by emailing or phoning that contact as allowed for under the process rules:
It is well established in Tribunal precedent that the onus is on the bidder to demonstrate that it meets all of the mandatory requirements of the procurement, including the requirement to submit a bid to the correct receipt point. The circumstances of this matter are unique, but the general rule remains applicable, i.e. it was incumbent upon the University of Guelph to exercise due diligence in the preparation and delivery of its proposal. The Tribunal finds that the University of Guelph fell short of attending with sufficient diligence to the instructions that were provided or to reacting to problems encountered in a timely manner.
The Tribunal ultimately ruled that the complainant “failed to follow the instructions because it chose to rely on an unfounded assumption that the epost Connect conversation that it used previously must have been the proper conduit for submitting its bid”, an assumption that proved fatal to the compliance of the bid. As this case illustrates, the failure to follow bid submission instructions, whether in the submission of hard copy bids, or in the use of electronic tendering systems, can result in procedurally non-compliant bids that must be rejected by government purchasing institutions.
