This article is an excerpt from Government Procurement, which is available for purchase.
In its March 2012 determination in Excel Human Resources Inc. v. Department of the Environment, the Canadian International Trade Tribunal found that the government properly rejected a bidder for failing to establish its compliance with past experience requirements. The case dealt with the procurement of information management architect services for Environment Canada. The solicitation included the following mandatory requirement relating to past experience:
Mandatory criterion M3 provided as follows:
The bidder must demonstrate, that the three (3) proposed resources have each at least two (2) years of experience during the last ten (10) years in developing or supporting the development of standards or policy relating to the management and governance of data and metadata – based on internationally recognized standards and best practices (must specify specific standards/practices employed).
The project description must clearly explain each resource’s specific role, the project scope and stakeholders and what was implemented.
In response to an inquiry from Excel, on November 7, 2011, Environment Canada provided Excel with the following, more fulsome explanation of why its proposal was declared non-compliant:
[The proposed resource] from Excel ITR did not meet M3 Criteria which required the bidder to demonstrate that the proposed resource had at least 2 years experience during the last 10 years in developing or supporting the development of standards or policy relating to the management and governance of data and metadata based on internationally recognized standards and best practices. The resource was required to specify specific standards/practices employed. [The proposed resource] cited DAMA DMBOK [The DAMA5 Guide to the Data Management Body of Knowledge] as reference to meet this criteria during Project 3 at [Company X] from 1997 – 2007. However, the first edition of DAMA DMBOK was released on April 5th 2009. Therefore it is not possible for [the proposed resource] to have utilized this during his work prior to 2007 at [Company X]. No other specific standards and practices were cited for this mandatory criterion.(paras. 8-9)The complainant was rejected for failing to meet this requirement and launched a legal challenge. The Tribunal’s determination focused on whether the government had properly interpreted and applied the past experience requirement when rejecting the complainant:
In essence, the issue before the Tribunal is whether Environment Canada failed to properly evaluate Excel’s proposal by wrongly applying mandatory criterion M3 in assessing the experience of its proposed resources, as claimed by Excel. The debate is whether, in view of the information included in Excel’s bid, the evaluators should have found that Excel demonstrated that its proposed resources had at least 2 years of experience during the last 10 years in developing or supporting the development of standards or policy relating to the management and governance of data and metadata based on internationally recognized standards or best practices. The Tribunal notes that mandatory criterion M3 expressly required bidders to identify the specific standards or best practices employed by its proposed resources. (para. 32)
In the Tribunal’s analysis, it found that the complainant had failed to establish its compliance with this requirement since it made reference to standards that were not in effect at the relevant time and failed establish how those standards, or their recognized equivalents, had been used by the proposed personnel in prior projects:
The Tribunal notes that Excel’s proposal referred only to“DAMA/DMBOK”, which it characterized as either an “international data management standard” or as “[i]nternational standards”. It did not refer to other internationally recognized standards or best practices. The Tribunal further notes that the evidence indicates, and Excel does not dispute, that the DMBOK, that is, The DAMA Guide to the Data Management Body of Knowledge, was published in April 2009. In view of these facts, the Tribunal finds that it was reasonable for Environment Canada to conclude that the proposed resource could not have utilized the DMBOK as a basis for developing or supporting the development of standards or policy related to the management and governance of data and metadata between 1997 and 2007.
With respect to Excel’s argument that, by indicating “DAMA/DMBOK” in its proposal, it was referring not only to the DMBOK standards or best practices but also to some unspecified preceding standards or best practices emanating from the DAMA, the Tribunal notes that mandatory criterion M3 was clear: it required bidders to identify “specific standards/practices employed” [emphasis added]. The Tribunal finds that Excel could and should have included more information in its proposal for the evaluators to identify the specific standards or best practices to which it referred. In this regard, the Tribunal accepts Environment Canada’s argument that it would have been improper for the evaluators to read into Excel’s proposal a reference to other standards or best practices, such as the Guidelines for Implementing Data Resource Management.
As previously stated, the onus is on a bidder to demonstrate compliance with a mandatory criterion and, on the facts of this case, the Tribunal finds that it was reasonable for the evaluators to conclude that Excel’s proposal did not include enough information to demonstrate compliance with mandatory criterion M3. Contrary to Excel’s submissions, the trade agreements do not impose on a procuring entity an obligation to seek additional information from bidders or to otherwise perform research to find information that is not included in the proposal itself in order to clarify or confirm whether a proposal is compliant with the mandatory requirements of a solicitation. Thus, it was Excel’s responsibility to specify exactly which internationally recognized standards or best practices that its proposed resource employed during the relevant period. The Tribunal finds that Environment Canada’s conclusion that Excel failed to do so is supported by a tenable explanation and is, therefore, reasonable.
At any rate, even assuming that Excel meant to refer to any DAMA standards or guidelines in its proposal, which, the Tribunal finds, was not readily apparent on the face of its proposal, it would still have failed to identify the specific standards or best practices emanating from the DAMA employed by its proposed resource, as it was required to do. Accordingly, the Tribunal finds that it was reasonable for the evaluators to conclude that Excel’s proposal did not comply with mandatory criterion M3. (paras. 37-40)
While the Tribunal ultimately found that the government’s evaluation was reasonable, this case serves to illustrate the complex analysis that must often be undertaken to determine whether proposed personnel have sufficient past experience to meet the threshold evaluation requirements. Purchasing institutions should therefore exercise great care in crafting and interpreting their past experience requirements since contract awards, not to mention the outcome of any resulting legal challenges, will often turn on the interpretation of these complex technical considerations.
