This article is an extract from the 5th edition of Government Procurement.
In its December 2021 determination in Marine Recycling Corp. v. Canada (Department of Public Works and Government Services), the Canadian International Trade Tribunal rejected the complainant’s allegations that the government used hidden evaluation criteria. The dispute dealt with a solicitation issued by the Department of Public Works and Government Services on behalf of the Department of Fisheries and Oceans for the disposal of the former vessel CCGS W.E. Ricker. A losing bidder brought a legal challenge and asserted that the government relied on hidden evaluation factors when it assessed the technical aspects of the bidder’s proposed dry dock facility to determine whether that dock was suitable for the vessel in question. While the Tribunal recognized that the evaluators relied on unstated sub-criteria, it rejected the complaint after determining that evaluators can rely on unstated technical factors provided that those factors are reasonably related to the evaluation criteria that are disclosed in the solicitation:
While MRC is correct that criterion M.2.4.4 does not expressly identify such factors, the requirement directs bidders to “[D]emonstrate that the dry dock is certified and capable of accommodating the former CCGS W.E. Ricker at the expected conditions during the anticipated Ship Breaking period” [emphasis added].
The evaluators’ notes indicate that there were unanswered questions about a possible discrepancy involving MRC’s proposed dry dock’s capacity and the Ricker’s specifications. The Tribunal’s review of the RFP and MRC’s bid revealed that MRC had access to and referenced the information giving rise to those questions, and that the possible discrepancy was clear (as described, for example, in the GIR). Additionally, MRC’s statement that it was not possible for bidders to “accurately” provide certain information, seems to presume that the evaluators were looking for a required level of precision that is not reflected in the evaluators’ notes. Nothing in their notes suggests that the evaluators were looking for quantitative information based on precise calculations. Rather, their concerns were focused on the lack of an explanation for how the discrepancy apparent in MRC’s bid would be addressed.
It is well-established that while an RFP must identify all major evaluation criteria, it does not have to identify all aspects of each criterion that may be considered in an evaluation, as long as the unidentified aspects are reasonably related to the criterion. Factors such as expected (not necessarily accurate or exact) vessel weight at lift, and a process capable of verifying that weight, are reasonably related to the evaluators determining whether a dry dock can accommodate a particular vessel. The Tribunal agrees with PWGSC that such factors can be an implicit part of demonstrating that a dry dock’s capacity is sufficient to accommodate a specific vessel, particularly where dry dock capacity appears to be in issue, and as such, they do not constitute undisclosed criteria.
As this case illustrates, evaluations that rely on unstated sub-factors expose evaluation and award decision to legal challenge based on allegations of hidden evaluation criteria. Rather than relying on implied sub-factors, purchasing institutions should disclose those subfactors and ensure greater transparency to better mitigate the risk of bid protests.
