This article is an excerpt from Government Procurement, which is available for purchase.
In its October 2015 determination in Space2place Design Inc. v. Parks Canada Agency, the Canadian International Trade Tribunal ordered a re-evaluation after determining that the government relied on undisclosed factors to reject a bid. The case dealt with a Parks Canada Request for Standing Offer for landscape architecture services. The Tribunal found that the government had improperly rejected a proposal after applying licensing requirements to individuals named in the bid, whereas the RFSO required that the licensing requirements be satisfied by the “person or entity” submitting the bids:
35. Turning to the evaluator’s assessment of the proposals, the Tribunal finds that Parks Canada used undisclosed criteria in evaluating whether Space2place’s bid was compliant with SRE 3.1.2, which required that the proponent be an architect, licensed, certified or otherwise authorized to provide the necessary professional services in Alberta and British Columbia. As noted above, the RFSO defined the proponent as the “person or entity” submitting a proposal. In the case of Space2place, that proponent, as listed in its bid response, was Space2place as a corporate entity.
The Tribunal found that the application of the general licensing requirements to each specific individual constituted a breach of the trade treaty duties that require bids to be evaluated based on properly disclosed criteria:
38. In doing so, Parks Canada breached the trade agreements by failing to evaluate Space2place’s bid in accordance with the criteria published in the RFSO. Once the mandatory criteria were published in the RFSO, Parks Canada was required to evaluate each of the criteria individually as written. By using the proposed personnel provided in response to SRE 3.1.4 as a proxy to evaluate compliance with SRE 3.1.2, Parks Canada effectively deprived SRE 3.1.2 of its intended meaning, which was to ensure that the proponent was duly licensed. As “proponent” was a defined term in the RFSO, it was not open to Parks Canada to ignore or use a revised definition of that term during its evaluation of the bid responses received.
The Tribunal therefore ordered the government to re-evaluate all proposals in a manner consistent with its stated evaluation criteria. As this case illustrates, purchasing institutions should be careful to precisely define the requirements that apply to a bidding entity and the requirements that apply to the individuals who are being proposed to perform the work on behalf of that entity. Failing to define bid compliance requirements with this level of precision can undermine the defensibility of any subsequent evaluation decision.
