This article is an extract from the 5th edition of Government Procurement.
In its February 2022 determination in Cadex Inc. v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal upheld the government’s technical compliance assessment and rejected a non-compliant bidder’s assertions that its proposed product was improperly evaluated. The dispute deal with a solicitation issued by the Department of Public Works and Government Services on behalf of the Department of National Defence for 229 multi-calibre sniper weapon systems. The complainant’s proposed product was rejected as non-compliant after it failed to fire during a cold weather test. The complainant alleged that the government conducted an unfair evaluation and improperly assessed its proposed product by using an inappropriate degreasing solvent while conducting the cold weather testing of the weapon. However, the Tribunal noted that complainant’s product literature did not restrict or prescribe the use of any specific solvents when testing the product, and that the solicitation terms were also silent on this technical issue:
For the reasons that follow, the Tribunal finds that PWGSC’s use of acetone to prepare the PPS in Test 8 was not contrary to the RFP and did not ignore vital information in Cadex’s Operator Manual and Maintenance Manual. The Tribunal also finds that whether PWGSC introduced undisclosed evaluation criteria is not at issue in this complaint.
The Tribunal agrees with Cadex that the RFP required Test 8 to be conducted “using Manufacturer’s recommended preparation procedure for low temperature operation”. However, Cadex’s recommended preparation procedure for low temperature operation does not identify a specific solvent/degreaser for cleaning the firing pin, the shroud or the bolt, and there is no cross-reference to any other part of Cadex’s bid that might prescribe the mandatory use of specific solvents/degreasers.
More specifically, while the section on low temperature operation does contain an obvious warning, it is a specific warning against “using oil or grease in cold weather” without any reference to solvents/degreasers. Notably, in respect of the firing pin assembly at issue, the low temperature operation procedure reads as follows: “Use a good quality solvent/degreaser and a clean rag to wipe down the firing pin assembly. Ensure that all fouling and lubricant residue are removed.” The procedure does not specify a particular type or brand of solvent/degreaser, offers no guidance on what constitutes “good quality”, and does not refer the user to another section of the Operator’s Manual or any other resource. Therefore, the Tribunal does not consider the warning regarding low temperature operation to be a warning against the selection of a specific solvent/degreaser. Where Cadex had concerns about using a particular consumable under certain conditions, the Operator Manual addressed the concern directly. This degree of specificity can be seen, for example, in the statement in section 6.1.A.2 and the note in bold on page 1,012 of the protected Exhibit PR-2021-040-01A.
The Tribunal finds the RFP did not expressly require DND to ensure that a specific brand or type of solvent/degreaser was used to prepare the PPS in Test 8.
The Tribunal ultimately deferred to the technical expertise of the government personnel who conducted the weapons testing over the assertions of the complainant regarding the appropriate use of solvents:
The evaluator who administered Test 8, and who has served with the CAF for 23 years, attests that the acetone used during Test 8 is a good solvent/degreaser commonly used on rifles and equipment. The Tribunal acknowledges Cadex’s experiments using acetone as a degreaser in August 2021. These experiments underpin Cadex’s position that acetone is not a good quality degreaser. However, there is no evidence to determine if these experiments were conducted in an independent fashion free from the risk of confirmation bias. On balance, the Tribunal prefers the assessment of the evaluator, who works in an environment that regularly uses acetone as a degreaser, over Cadex’s assessment based on its own experiments using a solvent/degreaser that Cadex does not use regularly use for the type of degreasing at issue. The Tribunal notes that the emails from Bore Tech customer service do not state or imply that acetone is not a good quality solvent/degreaser or that it cannot or should not be used with MCSWs generally or Cadex’s MCSWs in particular. Therefore, the Tribunal finds that PWGSC and DND reasonably interpreted what constituted a good quality solvent/degreaser for use in Test 8.
The complaint was therefore dismissed. As this case illustrates, purchasing institutions should apply additional due diligence when conducting active testing of proposed products as part of their compliance assessment since the procedures and standards used during those technical assessments remain subject to legal challenge. While in this case the Tribunal deferred to the government evaluators, greater clarity in the tender call regarding the use of technical testing materials may have prevented the bid protest.
