This article is an extract from the 5th edition of Government Procurement.
In its October 2021 determination in 1091847 Ontario Ltd. v. Shared Services Canada, the Canadian International Trade Tribunal upheld the government’s technical compliance assessment and rejected a non-compliant bidder’s bid protest. The dispute dealt with a request for proposal (“RFP”) issued by Shared Services Canada on behalf of the Department of Foreign Affairs, Trade and Development for the provision of uninterruptable power supplies and power distribution units. The RFP terms included active technical testing of the proposed products. The complainant’s proposed product failed that testing. It challenged the result, asserting that the government failed to provide an opportunity to address the technical deficiencies in its proposed product. The Tribunal ruled that the proof of proposal (“POP”) testing procedures used by the government were conducted in accordance with the RFP terms and that those terms did not allow bidders to correct any defects in their proposed products during the active testing phase:
The complainant alleges that it should have been notified, in accordance with the POP testing process outlined in paragraphs 3.1 iv. b) and 3.1 iv. d) of the solicitation, in order to be able to fix its product submitted for testing once SSC found that the NIC provided by the complainant failed to meet the minimum transfer speed of 1 Gbps required by mandatory criteria M.15 and P.4 of the solicitation.
This ground of complaint is not valid. The specific elements that the complainant alleges were not followed by SSC relate to “administrative faults,” which are not applicable in this case. The fault determined by SSC represented a non-compliance with a mandatory requirement of the RFP, which, according to the RFP, would result in immediate disqualification of the bid.
There appears to be a fundamental flaw in what Aurora believes to be its obligations and what it believes to be the obligations of the government. Aurora seems to be under the impression that the discrepancy found in the POP testing was one that should have been communicated to them during the testing phase and that they would be given an opportunity to correct this discrepancy. This is incorrect, both in terms of the discrepancy found and in terms of the requirements of the RFP. While there is a dispute as to when the pertinent test result was first communicated, it is definitive that the result was communicated in an email/letter dated April 27, 2021. The discrepancy was a failure of the provided UPS to meet a mandatory requirement of the POP test protocol and, consequently a mandatory requirement of the RFP (a minimum of 1 Gbps transfer speed), under P4 and M15, respectively. Any failure of this type rendered the bid non-compliant, with no opportunity for remediation.
The Tribunal therefore rejected the complaint. As this case illustrates, non-compliant bidders do not have the right to rectify non-compliance unless the process rules allow for such post-bid rectifications. While in some circumstances the complexity inherent in technical testing may lead purchasing institutions to adopt a phased testing process that allows for rectification periods to address technical deficiencies, unless the rules expressly contemplate those procedures, bidders do not have the right to rectify technical non-compliance in their proposed products.
