This article is an excerpt from Government Procurement, which is available for purchase.
In its April 2015 determination in Samson & Associates v. Department of Public Works and Government Services, the Canadian International Trade Tribunal upheld the government’s decision to reject a non-compliant bidder. The case dealt with an RFP issued on behalf of the Department of Veteran Affairs for the provision of services for operating cost reviews. The complainant’s proposal was rejected for failing to meet a mandatory requirement relating to the educational qualifications of individuals proposed for the audit services component of the work. The complainant maintained that it provided the required information in the CV submitted for the relevant individual and that the government should have sought clarification if it was unsure about the qualifications of the proposed individual. The Tribunal disagreed, finding that proponents bear the duty of meeting mandatory requirements, that the education information provided for the proposed individual was ambiguous, and that the government was not under a duty to seek clarifications to determine if a proposal met those requirements:
44. The Tribunal notes that, in its comments on the GIR, Samson submitted that PWGSC should have sought to clarify or verify the information included in its bid regarding the relevance of the college diploma of the proposed resource. As indicated above, while the procuring entity might choose to do so in certain circumstances, there is no obligation on government institutions to seek clarifications from bidders or to otherwise rely on extraneous sources of information to verify or clarify the information contained in a bid. Indeed, the aforementioned provisions of the RFP made it clear that bidders had to demonstrate in their bids that each of the proposed resources met the minimum mandatory educational qualifications. It was therefore both reasonable and appropriate for evaluators to limit their evaluation to the contents of the bid documents.
The complaint was therefore rejected as not valid. As this case illustrates, while purchasing institutions may in certain circumstances have the right to seek clarifications when assessing the compliance of a bid submission, they are not required to do so. Bidders should therefore ensure that they respond to the mandatory requirements in a solicitation in a clear and unambiguous manner.
