This article is an extract from the 5th edition of Government Procurement.
In its June 2020 determination in SoftSim Technologies Inc. v. Canada (Department of Foreign Affairs, Trade and Development), the Canadian International Trade Tribunal rejected a complaint after finding that the complainant failed to substantiate its allegations of bias. The dispute dealt with a request for proposal issued on behalf of the Department of Foreign Affairs, Trade and Development (“DFATD”) for the provision of task-based informatics professional services to contribute to a trade modernization initiative. The Tribunal found that the complainant relied on hearsay and other uncorroborated evidence to support its allegations but failed to establish actual bias or a reasonable apprehension of bias in relation to the evaluation of its proposal:
In the Tribunal’s view, nearly all of SoftSim’s evidence is hearsay, i.e. SoftSim employees affirming that they have been told of DFATD’s alleged bias by potential candidates or anonymous sources inside DFATD. The SoftSim employees who signed its collective affidavit do not have direct knowledge of what they allege are biased statements by DFATD: rather, their purported knowledge comes through second-hand statements. The Tribunal admitted and weighed this evidence, rather than rejecting it categorically as hearsay. However, the Tribunal finds it appropriate to use caution in relying on SoftSim’s second-hand hearsay evidence, particularly insofar as it is used to support serious allegations of bias.
In the Tribunal’s view, SoftSim’s hearsay evidence is imprecise, convoluted, and lacking in specifics. For the most part, the rumours of DFATD’s bias that SoftSim has conveyed are vague and come from anonymous sources. SoftSim’s affidavit identifies one source by name; however, it also states that SoftSim has telephone records and social media messages from this source, which were never provided to the Tribunal. Even if the Tribunal did have the benefit of communications records showing that the source had told SoftSim of DFATD’s bias, this would not show that the source’s statements were true. Without more corroborating evidence, the Tribunal cannot conclude that these rumours of bias are reliable. The Tribunal therefore gives no weight to SoftSim’s hearsay evidence.
That being said, not all of SoftSim’s evidence is hearsay: SoftSim has also provided an affidavit in which Joanne Plummer attests to being told by a director at DFATD that he would put SoftSim on a “block list” [sic] so that it would not be invited to bid on future RFPs. In response, DFATD stated that SoftSim has been allowed to participate in the solicitations at issue in this complaint and in File No. PR-2019-057, as well as Solicitations No. 20-172756 and 20-170714– statements that SoftSim did not refute.
The Tribunal notes that DFATD evaluated SoftSim’s bid for the solicitation at issue in SoftSim’s related complaint, File No. PR-2019-057, as recently as December 2019. SoftSim has also submitted emails showing that it has received updates from DFATD on Solicitation No. 20-170714, as recently as March 6, 2020.
Therefore, the Tribunal finds that Joanne Plummer’s statements are uncorroborated and, in the circumstances, gives them little weight. Recalling the burden that is on SoftSim to provide sufficient evidence grounding its allegations of bias, the Tribunal finds that Joanne Plummer’s affidavit does not sufficiently substantiate the serious allegations made, and therefore does not give rise to a reasonable apprehension of bias.
Finally, SoftSim’s claim that Solicitation No. 20-170714 was written to favour Coradix is unsubstantiated. Again, it is SoftSim who “bears the onus to present positive evidence that the government institution structured the terms of the RFP . . . with the purpose or effect of favouring (or excluding) a particular supplier. . . .” It is not sufficient to merely state that certain requirements were added to a solicitation to favour Coradix, without explaining why these requirements are not legitimate operational requirements or showing that only Coradix fulfills these requirements. In any case, Solicitation No. 20-170714 is not the subject of the Tribunal’s inquiry, and as such could only be relevant to the extent that it supports SoftSim’s allegations pertaining to the solicitation at issue, which it does not. The same is true of SoftSim’s arguments pertaining to Solicitation No. 20-156407, which is not the subject of any inquiry by the Tribunal: these arguments do not give rise to a reasonable apprehension of bias in the present inquiry.
In conclusion, the Tribunal finds that SoftSim has not provided sufficient evidence to support a finding of bias or the reasonable apprehension thereof. None of SoftSim’s evidence has convinced the Tribunal that “an informed person, viewing the matter realistically and practically–and having thought the matter through” would conclude that DFATD had failed to treat SoftSim fairly. As such, the Tribunal finds that SoftSim’s complaint, on this ground, is also not valid.
As this case illustrates, while bidders have the right to raise concerns regarding bias in a government evaluation process, they also bear a burden of proof to substantiate their allegations with compelling evidence. The failure to marshal such evidence will prove fatal to their claims.
