This article is an extract from the 5th edition of Government Procurement.
In its April 2021 decision in SL Ross Environmental Research Limited v. Department of Fisheries and Oceans, the Canadian International Trade Tribunal rejected a challenge based on allegations that the government had improperly scored the complainant’s past experience. The dispute dealt with a Department of Fisheries and Oceans Request for Standing Offer (RFSO) for the provision of scientific and technical advisory services on matters related to environmental incidents, response measures, and emerging technologies. To be eligible for award, bidders had to meet a minimum technical score of 80 points out of 110 points.
The complainant failed to meet that minimum score and then took issue with the scoring of its prior project experience. More specifically, the complainant challenged the fact that the evaluators found duplication in the prior projects submitted in the complainant’s bid. The Tribunal agreed with the evaluators, finding that there was duplication in the projects named in the complainant’s bid and finding that those projects could not be scored twice in the evaluation. In coming to this determination, the Tribunal also rejected the complainant’s assertion that, based on its international reputation, it should have been given the benefit of the doubt by the government evaluators when they scored its past experience. As the Tribunal concluded, the complainant’s reputation in the field was not part of the evaluation criteria in the RFSO and that “relying on such subjective information would have been unfair to other bidders.” In fact, the Tribunal noted that the complainant’s international reputation would be “an external factor not contemplated by the RFSO or in particular the rated technical criteria” and its consideration in the evaluation process would be contrary to the government’s obligations under the trade agreements. The complaint was therefore dismissed.
