This article is an extract from the 5th edition of Government Procurement.
In its August 2018 determination in Gallason Industrial Cleaning Services Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal upheld the government’s price evaluation and upheld the government’s decision to deny the complainant an opportunity to correct unit price errors in its bid form. The dispute dealt with a request for proposal issued on behalf of the Department of National Defence for the rental and maintenance of portable latrines at the Canadian Forces base in Edmonton.
While the Tribunal recognized that the government may seek clarifications and correct obvious mathematical errors contained in a bid, such as the improper addition of unit prices, it also noted that allowing the post-bid correction of errors in the actual unit prices would have amounted to improper bid repair:
In the present case, Gallason’s financial bid contained significant errors, as its unit prices did not correspond to the extended prices, as required by the RFP. When PWGSC requested clarification from Gallason regarding this apparent discrepancy, Gallason submitted revised unit pricing that corresponded to the extended prices for each line item.
According to PWGSC, however, it was “not at liberty to make the choice of replacing the unit price numbers submitted with the bid with new numbers that would have been consistent with the total evaluated price submitted with the bid”. Accepting such a revision from a bidder would have, in its view, amounted to impermissible bid repair.
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…the Tribunal considers it reasonable that PWGSC decided not to take into consideration the revised unit pricing submitted by Gallason in response to its clarification request because allowing Gallason to revise its unit pricing would have altered its bid in a material way that was not permitted by the solicitation documents.
Further, the Tribunal noted that the government was not required to accept new information provided by a bidder in response to a clarification request if doing so would amount to bid repair:
The fact that PWGSC requested clarification from Gallason does not mean that it was obliged to accept the information provided in response if doing so would amount to allowing bid repair. In situations where a procuring entity seeks clarification of the contents of a bid, the clarification provided by the bidder must refer or relate to a better understanding of the contents of a bid, as submitted. Contracting authorities cannot take into account new information intended to form a substantive part of a bid after it is submitted.
In addition, the RFP was subject to rules that clearly stated that the unit prices submitted in a bid were to be considered paramount over any error in the extension of such prices. In this regard, the RFP incorporated, by reference, the 2003 (2017-04-27) Standard Instructions — Goods or Services — Competitive Requirements. Paragraph 16(1)(e) of the Standard Instructions indicated that PWGSC, in conducting the evaluation of bids, “may, but will have no obligation to, . . . correct any error in the extended pricing of bids by using unit pricing” and that “in the case of error in the extension of prices, the unit prices will govern”.
In light of this clause, PWGSC had the discretion to make corrections to errors in extended pricing (i.e. calculating a subtotal based on a particular line item), but it was under no obligation to do so. Moreover, the price discrepancy clause does not refer to allowing corrections to unit prices where they do not correspond to the extended price totals. Rather, it indicates that in the case of a discrepancy between unit and extended prices, the unit prices will prevail.
Consequently, PWGSC assessed the total price of the requirement on the basis of the unit prices provided in Gallason’s bid, which resulted in a total price that was not the lowest submitted. PWGSC’s approach was reasonable and in conformity with the applicable rules set out in the RFP and related solicitation documents.
As this case illustrates, unless the bid evaluation rules expressly allow for the correction of bid submissions errors that go to bid compliance requirements, or to other evaluated elements of a bid, government evaluators should proceed with caution before allowing bidders an opportunity to engage in the post-bid correction of errors contained in their bid submissions. The flexibility permitted in each situation should be considered within the context of the specific rules established under the specific solicitation process.
