This article is an extract from the 5th edition of Government Procurement.
In its November 2018 determination in KPMG LLP v. Department of Public Works and Government Services, the Canadian International Trade Tribunal recognized the government’s right to correct evaluation errors. The dispute dealt with a request for the provision of advisory services regarding transformation planning, implementation, management and oversight at Employment and Social Development Canada. The complainant took issue with the initial evaluation of its bid and then legally challenged the government’s decision to re-evaluate both the complainant’s bid and a competing bid. However, the Tribunal determined that the government acted reasonably in re-evaluating both bids since re-evaluating only the complainant’s bid would have resulted in an unequal treatment of bidders:
KPMG argued three grounds regarding the re-evaluation of RT7, specifically that Deloitte’s bid should not have been re-evaluated as a result of an objection by KPMG to the evaluation of the KPMG bid, that the re-evaluation with respect to both bids was done improperly (substantively and procedurally), and that records of the re-evaluations were not kept by PWGSC.
Both PWGSC and Deloitte submitted that the evaluation was necessary and fair.
Firstly, the Tribunal is convinced that PWGSC, having determined that it may have interpreted a requirement of the RFP incorrectly, had a positive obligation to make such a correction in the evaluation (which can be referred to as a re-evaluation) of all of the bids. Had PWGSC only re-evaluated KPMG’s proposal, it would have amounted to a situation whereby bidders were not treated equally, thus violating the trade agreements.
Secondly, as far as the substance of the evaluation, the Tribunal does not find the evaluation of responses with respect to RT7 to be unreasonable, either with respect to KPMG’s bid or Deloitte’s. In this case the Tribunal is satisfied that the methodology used to arrive at the scores of the bidders was driven by a reasonable interpretation of the RFP and an equal application of the criteria to the contents both bids. Thus, the Tribunal will not interfere with the conclusions of the evaluators on this issue.
Thirdly, the Tribunal is not persuaded that any such additional procedural actions were necessary in this case. Evaluations can change before they are recorded as “final”. A correction or change made during a re-evaluation after an objection is made are similar and are also properly part of the overall evaluation process. KPMG has tried to differentiate the scenarios in terms of the process necessary to engage in one versus the other such as additional “procedural safeguards” being necessary in a re-evaluation. In effect, these arguments mean that, since the re-evaluation occurred after the initial evaluation and award, some more rigorous process and documentation may be required as a matter of course. The Tribunal’s view is that, on the contrary, it would have been problematic for PWGSC to require different methodology and documentation for the re-evaluation of the responses to RT7 than was required for its initial evaluation of this criterion.
The Tribunal is not persuaded that any violation of the trade agreements occurred as a result of the re-evaluation, either in substance or procedure.
The complaint was therefore dismissed. As this case illustrates, government evaluators have the right to revisit their initial evaluations it they subsequently discovered that there may have been flaws in their initial evaluations. Such re-evaluations should be conducted in a manner that ensures the fair treatment of all bidders.
