This article is an extract from the 5th edition of Government Procurement.
In its May 2021 determination in Sourcetec Industries Inc. v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal upheld the rejection of the complainant’s bid for failing to meet a mandatory technical requirement. The dispute dealt with a request for proposal issued by the Department of Public Works and Government Services on behalf of the Department of National Defence for the supply and delivery of temporary particle filters for vehicle exhaust required by Canadian Forces Base Petawawa.
While the complainant brought a bid protest challenging its disqualification, the Tribunal rejected the complaint after finding that the complainant’s proposal did not fully address all the technical standards that applied to the contested mandatory technical requirement. The Tribunal also ruled that the government evaluators acted reasonably in not relying on their prior familiarity with the proposed product to deem the proposed product compliant notwithstanding the technical deficiencies in the complainant’s proposal since this would have amounted to a breach of the evaluation rules:
During the evaluation of Sourcetec’s bid, it appears that the evaluators attempted to map the technical content provided by Sourcetec’s bid to the mandatory technical requirements, as presented within the RFP in the form of a grid. Although the EHC brochure contained a significant amount of technical information, other items listed as mandatory technical requirements in the RFP were not addressed by the EHC brochure or elsewhere in the bid document. The presence of these gaps in technical information caused the evaluators to find that Sourcetec’s bid was non-compliant.
Quite possibly, Sourcetec was operating under the assumption that DND (and by extension, PWGSC) was already familiar with EHC Filters and that consequently, all of the technical features of the product did not need to be spelled out by Sourcetec in its bid such that the technical content of its bid could rest solely on the information contained in EHC’s product brochure.
The Tribunal will review complaints arising from a procurement process to ensure that the procurement, including the evaluation of received bids, is conducted fairly, openly and transparently, in accordance with the terms of the tender documents as provided to prospective bidders. However, in doing so, it cannot redraft the RFP requirements or the evaluation criteria.
The RFP was explicit in defining the technical content required for a compliant bid. It also clearly prescribed that a bid that did not fulfill these criteria would be rejected as non-compliant.
A finding that the gaps in Sourcetec’s bid should have been disregarded by PWGSC on the basis of presumed familiarity with the proposed product to be supplied would amount to granting one bidder a waiver from some of the RFP requirements. Moreover, such a waiver would arise retroactively, after the tender had concluded, and would thus be unfair to other bidders.
The Tribunal finds that the PWGSC evaluators applied themselves in attempting to locate information within Sourcetec’s bid that would address each of the RFP’s mandatory technical requirements. Sourcetec’s bid was deemed non-compliant because some of the requisite information was not present. By way of example, the evaluators found that the content of the second mandatory requirement (MTC-2) had not been addressed at all in Sourcetec’s bid.
A reasonable evaluation is one that is supported by a tenable explanation, even if that explanation is not one that the Tribunal finds compelling.
In view of the foregoing, the Tribunal finds no basis to conclude that the bid evaluation was unfair or that the evaluators did not reasonably consider and apply the prescribed evaluation criteria in relation to Sourcetec’s bid.
As this case illustrates, bidders should not presume that their past compliance with mandatory requirements will afford them special consideration in subsequent tendering processes since each evaluation process should be conducted as an independent process. Bidders need to ensure that their bid submissions address all compliance requirements in a new solicitation to be compliant and eligible for contract award.
