This article is an extract from the 5th edition of Government Procurement.
In its July 2017 determination in Le Groupe Conseil Bronson Consulting Group v. Department of Public Works and Government Services, the Canadian International Trade Tribunal ordered the government to disclose more information controlled by the incumbent bidder to level the playing field with other bidders. The dispute dealt with a request for proposal for services for visa application centre (“VAC”) services issued by the Department of Public Works and Government Services (“PWGSC”) on behalf of the Department of Citizenship and Immigration (“IRCC”).
As the Tribunal summarized, the complainant alleged that the government failed to provide material volume data that was required by non-incumbent bidders to submit competitive proposals:
Section 1.3, Summary of Part 1, General Information, of the current RFP provides an overview of the RFP. It outlines that the purpose of the RFP is to enter into a contract with VAC operators who collect biometric information (photographs, fingerprints) of foreign nationals making an application to come to Canada, as well as additional services, such as assistance in the completion of applications and facilitating the transfer of original documents (such as passports) to the IRCC-specified visa offices, which ultimately make the necessary determinations with respect to the visa applications.
Bronson asserted that these program objectives require volume data for bidders to respond to the current RFP. It argued that this need is particularly acute for new entrants because they must invest significantly in a new VAC network. By contrast, incumbents have direct knowledge of current service volumes at actual VAC locations, which Bronson submits constitutes a significant advantage regarding the financial bid (from a cost of operations, expected revenue, and risk analysis perspective). Bronson argued there cannot be a fair competition when the incumbents have non-proprietary historical visa volume data but new entrants do not.
The Tribunal agreed that the government should disclose that historic volume information to level the playing field for new bidders against incumbent suppliers:
The Tribunal has previously held that, in order for a solicitation to be fair, the government institution must release “all relevant information, including historical data”. Leaving this data uniquely in the possession of the incumbents provides them an advantage in formulating a competitive financial bid that is unavailable to new entrants.
While PWGSC addressed this deficiency at least in part by releasing some data in response to bidders’ requests, it made no response to Bronson’s assertions that the data remains incomplete. Without further submissions from PWGSC, it is difficult to determine the relevance of the issues noted by Bronson. It may be that PWGSC is not in possession of any data other than what was provided by Amendment 10. However, on the basis of Bronson’s submissions it seems that Bronson has identified relevant deficiencies in the data from Amendment 10 that could unfairly advantage incumbents over new entrants.
In order to ensure that the incumbents are not unfairly advantaged, PWGSC should provide further disclosure of the information identified by Bronson, or provide an explanation as to why the data in issue is not available.
As this case illustrates, the trade treaties require government institutions to establish a level playing field between incumbent bidders and new suppliers who are bidding on those same contract opportunities by ensuring that new bidders have access to volume data that will be material for future performance since limiting access to that data to incumbents can give those incumbents an unfair competitive bidding advantage.
