This article is an extract from the 5th edition of Government Procurement.
In its January 2021 determination in Falcon Environmental Inc. v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal ordered a re-evaluation after finding flawed evaluation records. The dispute dealt with request for proposal for the provision of aerodrome wildlife control services at Canadian Forces Base Trenton and Canadian Forces Detachment Mountain View. The complainant challenged the evaluation process, alleging that the contract was awarded to a non-compliant competitor who lacked the required experience. The Tribunal determined that it was improper for government evaluators to give a bidder the benefit of the doubt where compliance was not clearly established from the information in the bid. The Tribunal also found that the government evaluators failed to keep adequate records of their past experience assessment:
A bid is either compliant or it is not. In the Tribunal’s opinion, it was not reasonable for evaluators to ostensibly infer that PNWR’s proposed resources had the experience unambiguously required by criterion M5 on the basis of the general information provided with its bid. The onus to show compliance rests on the bidder; it is not permissible for government institutions to give bidders the benefit of the doubt where compliance cannot be clearly established from the information in a bid.
On this issue, it is worth noting that the evaluators’ score sheets do not reveal a rigorous consideration of the issue of the experience of each resource proposed by PNWR applying manual TP 11500 to wildlife control services. While the evaluation report form indicated that evaluators may provide an explanation for their decision, there is no indication on the completed evaluation reports that the evaluators turned their mind to the requirement regarding specific experience applying manual TP 11500. In fact, the short annotations on the evaluation reports suggest that compliance was merely assessed through a verification of the number of hours of experience at airports, which is only one component of criterion M5.
The Tribunal therefore ordered a re-evaluation. As this case illustrates, the failure to maintain proper evaluation records can compromise the defensibility of an evaluation and award decision.
