This article is an excerpt from Government Procurement, which is available for purchase.
In its August 2014 determination in CAE Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal found that the government conducted a flawed evaluation when assessing the past experience of a proposed project manager. The case dealt with a Department of National Defence RFP for submarine support services. CAE Inc. brought a complaint with the Canadian International Trade Tribunal, challenging the rejection of its submission.
The past experience requirements for the proposed project manager called for experience in the management of in-service support contracts or development projects for complex naval systems or simulators. During the bid verification process, the government evaluators rejected the past experience offered for CAE’s proposed project manager. CAE had provided the proposed project manager’s experience as the executive officer of a submarine as meeting the relevant in-service support project experience requirement. The government evaluators rejected this past experience on the basis that the executive officer of a submarine would not typically be responsible for managing these types of projects. CAE took issue, asserting that the individual in question had in fact directly managed such projects even if that was not the typical roles of most executive officers.
The Tribunal found that the government’s speculative assessment of the past experience submission was flawed and in contravention of its fair evaluation duties under the relevant trade treaties:
88. In regard to the candidate’s third position as Executive Officer, HMCS Windsor (August 2012 – January 2014), PWGSC highlighted that the Panel based its verification upon the knowledge of Lt Cdr Bryan and Mr. Sekaly, both of whom were in DND training organizations. Lt Cdr Bryan, for example, served as Executive Officer and Officer in Charge of HMCS Chicoutimi from May 2003 to April 2005 and subsequently as Executive Officer of HMCS Corner Brook until December 2005. According to their personal and actual knowledge, executive officers like the candidate would not manage in-service support contracts or development projects in a manner consistent with PWGSC’s interpretation of the term.
89. CAE responded with evidence that the candidate, as Executive Officer of the HMSC Windsor, managed requirements and activities relating to the EDWP and TRP not normally managed by an Executive Officer. CAE argued that neither Lt Cdr Bryan nor Mr. Sekaly had any involvement in the actual EDWP or TRP projects on the HMCS Windsor. While they may have known what executive officers might have done, CAE maintained that neither Panel member had specific knowledge of what the candidate actually did in this role.
90. The Tribunal agrees. As noted above, when explaining its decision that CAE’s bid was non-compliant, the Panel stated that “. . . two members of the evaluation team can attest to the fact that an Executive Officer of a submarine would not manage development projects or ISS contracts”
[emphasis added].91. The use of the words “would not” suggests that the Panel’s verification of the candidate’s role as Executive Officer was not based on objective, direct personal knowledge. Instead, the verification was based on assumptions about what the candidate might (or might not) have done while in this role. That is confirmed by the fact that the candidate’s affidavit was clear that he was involved with activities not normally undertaken by an Executive Officer, and as such undertook activities that the Panel members would have had no direct knowledge about unless they had truly applied themselves in the verification.
92. By relying on assumptions as opposed to an extensive and objective verification, the Panel thereby did not apply the standard set out in section 1.6 to the third position that the candidate held. By accepting the Panel’s verifications, the Tribunal must find that PWGSC acted unreasonably and contrary to Article 506(6) of the AIT, Article 1015(4) of NAFTA and the similar provisions of the other trade agreements as a result.
While the Tribunal found that this part of the government’s evaluation process was flawed, it did not order a remedy since the evaluation error had no impact on the ultimate assessment of CAE’s proposal, which was found to be validly rejected as non-compliant for other reasons. That said, this case serves as a useful reminder of the importance of relying on objective fact-based assessments when verifying the information provided by proponents in their submissions.
