This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its July 2020 report, Canada’s Office of the Procurement Ombudsman found multiple evaluation flaws in its review of the procurement practices of Environment and Climate Change Canada (ECCC). The report highlighted how the development of evaluation criteria, the drafting of solicitation documents, and the administration of the evaluation process are three of the highest risk areas in government procurement.
The Procurement Ombudsman audited the contracts awarded by ECCC over a two-year period and found overall compliance in the institution’s practices. However, the report also found multiple instances of flawed evaluations. Focusing first on the use of evaluation criteria, the Procurement Ombudsman determined that overall ECCC’s mandatory criteria “were not overly restrictive and did not unnecessarily favour or penalize any particular bidder or group of bidders.” However, the report found that in several files, the mandatory criteria “were not communicated in a clear, precise or measurable manner.” Similarly, while overall the report determined that the point-rated criteria and rating scales used by ECCC were “appropriate to the requirement, clearly communicated and not overly restrictive”, the Procurement Ombudsman discovered several instances where solicitations “contained missing, incorrect or unclear information regarding point-rated criteria.” Finally, while the Procurement Ombudsman determined that overall ECCC’s selection methodologies were “accurate and aligned with the requirements as described in the solicitation document”, the report found that in about 20 percent of reviewed files, those selection methodologies “contained inaccurate or contradictory information. or both.”
Turning to the drafting of solicitation documents, while the Procurement Ombudsman found that most of the reviewed documents included clear and complete information and instructions for submitting bids, the report also found that “some incorrect or contradictory information was found in certain solicitations.” For example, one of the reviewed solicitation documents stated that e-mail submissions were preferred but provided only a physical mailing address for bid receipt. That same solicitation document “requested that enquiries be submitted to a physical mailing address and not an e-mail address.” In another two cases involving invitational bids, the Procurement Ombudsman found that the timeframe for submitting questions in the invitation e-mail did not correspond to the timeframe for submitting questions stated in the solicitation document. To address these issues, the Procurement Ombudsman recommended that ECCC “establish a mechanism to ensure clarity and accuracy in evaluation criteria, selection methodologies and bidder instructions to avoid discrepancies in its bidding processes.”
The Procurement Ombudsman also found “inconsistencies in the evaluation of bids and deviations from the planned approach”. For example, the report noted two cases where contracts were awarded to non-compliant bidders, one case where a bid was evaluated after the contract was already awarded, two cases where evaluators used an evaluation grid that was inconsistent with the criteria stated in the solicitation document, seven cases where evaluators awarded partial points for technical evaluations in a manner that was inconsistent with the solicitation document rating scales, and four cases where evaluation comments were missing or were insufficient to substantiate the awarding of less than full points. To address these gaps, the Procurement Ombudsman recommended that ECCC “establish mechanisms to ensure bid evaluations adhere strictly to the evaluation criteria in solicitations” and ensure that the evaluations “are carried out in accordance with planned approaches.”
After finding significant record-keeping gaps, the Procurement Ombudsman also recommended that measures be put in place to ensure that evaluations are properly documented. For example, the report noted that “18 of 40 files were missing key documents”, including four cases where the identity of evaluators was not recorded, four cases where individual evaluations were missing, five cases where financial evaluations were missing, and five cases that contained an incomplete record of pre-bid question-and-answer and addenda correspondence. As the Procurement Ombudsman warned, these incomplete procurement files “resulted in inadequately supported procurement actions that risk undermining the integrity, fairness and transparency of the procurement process.” The report emphasized that maintaining complete and detailed evaluation records is crucial for demonstrating that the evaluation criteria have been applied equally and in compliance with applicable trade agreements. To address these deficiencies, the Procurement Ombudsman recommended that ECCC establish a mechanism to ensure “up-to-date and complete procurement files.”
By clarifying some of the critical standards that apply to fair, transparent, and defensible evaluations, the Procurement Ombudsman’s report serves as a useful wake-up call to Canadian federal government entities, and to public institutions more generally, reminding them that their bid evaluation practices will remain under the microscope of after-the-fact scrutiny. Purchasing institutions can choose to either proactively update their practices to bolster the defensibility of their contract award decisions or pay the price downstream when evaluation irregularities are discovered in the context of costly bid dispute litigation.
