This article is an excerpt from Government Procurement, which is available for purchase.
In its December 2011 determination in The Access Information Agency v. Canada Revenue Agency, the Canadian International Trade Tribunal upheld the government’s evaluation decision and rejected the unsuccessful bidder’s complaint. The case dealt with a Canada Revenue Agency procurement for access to information and privacy consultants. The complainant challenged the government’s evaluation of its past experience dealing with issues that attracted media attention. The Tribunal refused to intervene since the situation did not represent an exception to its long-standing general deference to government evaluation processes:
The Tribunal has stated repeatedly that “… suppliers bear the onus to respond to and meet the criteria established in a solicitation” and that “… a bidder needs to do more than list an ability in order to demonstrate that it actually possesses that ability”. As it has also stated many times, the Tribunal reiterates that it will not substitute its judgment for that of the evaluators unless the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way. In the Tribunal’s opinion, none of these circumstances apply to these complaints and, therefore, the Tribunal will not intervene in this instance.
Indeed, the Tribunal is of the view that the evidence does not indicate that there is anything unreasonable in the way in which the sub-criterion regarding media attention was applied by the CRA. The evaluators simply applied the criterion that it was the bidder’s responsibility to establish clearly the existence of the consultants’ experience. Without doing a re-evaluation as such, the Tribunal notes that no information given in the proposal regarding resource No. 5, in the statement provided by AIA in response to criterion R3, establishes a factual correlation that clearly shows that the processed access to information request was sensitive within the definition of the criterion, i.e. that it was either already receiving media attention or had a very strong possibility of being susceptible to media attention. To reach a different conclusion on the basis of the information provided by AIA, the Tribunal is of the view that the evaluators should have relied on a presumption and not on an established fact. It was up to AIA to show clearly that it met the applicable criterion and not up to the evaluators to show, on the basis of a presumption, that such was the case. (paras. 89-90, footnotes omitted)
In dismissing other arguments against the evaluation process, the Tribunal also found that the onus remained with bidders to seek clarification before bidding if they have questions about the interpretation of solicitation requirements or evaluation criteria. The Tribunal therefore rejected the complaint and awarded costs against the complainant.
