This article is an extract from the 5th edition of Government Procurement.
The Canadian International Trade Tribunal has rendered multiple recent rulings that recognize the right of a purchasing institution to rely on bidder representations during an evaluation and award process.
For example, in its March 2018 determination in Atlantic Catch Data Ltd. v. Department of Public Works and Government Services, the Tribunal upheld the government’s right to rely on the written representations of a bidder when making contract award decisions. The dispute dealt with a tender call for the acquisition of marine water quality monitoring services for Environment and Climate Change Canada. A losing bidder challenged the contract award, alleging that its competitor was still actively recruiting to fill some of the required staff positions after it was awarded the contract. The complainant relied on this as evidence that the government had awarded to a non-compliant bidder, arguing that it should have been awarded the contract as the next best bidder.
However, the Tribunal disagreed, finding that the government was within its rights to accept the representations of the selected bidder, AECOM, regarding staff availability, and that the RFP rules did not strictly require the bidder to inform the government of staff changes during the bidding process. The Tribunal concluded that matters of contract administration were beyond the scope of its jurisdiction and therefore rejected the complaint regarding the post-award change of personnel. As this case illustrates, purchasing institutions may be permitted to rely on the written representations of bidders during the evaluation and award process. However, those written submissions do not automatically ensure that the bidders will be able to meet their commitments during contract performance.
Similarly, in its March 2018 determination in AirClean Systems Canada v. Department of Public Works and Government Services, the Tribunal upheld a government evaluation process, but expressed concerns over the government’s reliance on the written assurances of the winning bidder regarding the adequacy of its proposed products. The case dealt with a tendering process for the procurement of a fume hood for the Royal Canadian Mounted Police to test dangerous drugs. The complainant challenged the evaluation process, arguing that the government never tested the products proposed by its competitor to ensure that they met the safety requirements and instead relied on the written assurances provided by the winning bidder to inform the contract award decision.
The government took the position that it was not required to test the products during evaluations to confirm if they functioned to specification and that it could instead confirm compliance with the specifications during contract performance and terminate the contract for non-performance if the products failed to meet the specifications.
While the Tribunal agreed that the government was not required to actively assess product compliance during an evaluation if the solicitation rules did not mandate that testing, it also questioned whether relying on the written assurances of bidders was a prudent approach to awarding contracts for products that would be relied on for health and safety purposes.
As this case illustrates, complying with the minimum procedural requirements set out in the tendering rules for bid evaluations is not necessarily the same as complying with broader due diligence duties in relation to the selection of appropriate goods and services. While in some instances it may be appropriate for public institutions to rely on the written assurances of bidders to inform contract award decisions, and then to rely on contract remedies if those assurances later prove false, public institutions should engage in a more active level of testing during bid evaluations when a breach of standards can result in significant downstream consequences during contract performance. In those situations, the tendering rules should be tailored to clearly specify the nature of the testing that will be conducted as a pre-condition of contract award.
Further, in its December 2018 determination in SoftSim Technologies Inc. v. Department of National Defence, the Tribunal upheld the government’s right to take bidder representations at face value without looking behind those representations for proof of compliance. The dispute dealt with a request for proposals for information technology services that required proponents to certify that every proposed staff person listed in the proposal would be available to perform the work if the proposal was awarded the contract. Some of the representations from the winning proponent regarding staff availability later proved to be false. However, the Tribunal ruled that it was an acceptable practice to rely on those submission during the evaluation process, finding that there was no evidence that the government knew, prior to award, that the named resources were unavailable since the proponent only advised of the unavailability after the award. Since the Tribunal found that there was no evidence of collusion between the government and the proponent, it determined that the government was “well within its rights” to rely on the proponent’s representations. It also confirmed that any post-award changes to address the staffing issues were matters of contract administration that fell beyond the Tribunal’s procurement review jurisdiction.
Finally, in its January 2022 determination in Enveloppe Concept Inc. v. Canada (Department of Public Works and Government Services), the Tribunal rejected a complainant’s bid protest after determining that the government was not required to validate the winning bidder’s compliance attestation. The dispute dealt with a tender call for envelopes for the cheques of the Receiver General for Canada. The complainant alleged that the winning bidder submitted false or misleading certifications of compliance. However, the Tribunal ruled that winning bidder’s certification regarding the proposed facilities and sites was compliant and that the government was under no obligation to seek clarification or to check the accuracy of all the information provided by the winning bidder since “there was nothing obvious in reading the proposal that called into question the accuracy of the information that was provided.” The Tribunal found that the government only became aware of the fact that winning bidder’s certification may not be compliant after the award of the contract and that it had not jurisdiction to consider matters of contract administration. The complaint was therefore dismissed.
As these cases illustrate, purchasing institutions have the right to rely on bidder representations and are not required to fact-check those representations during an evaluation and award process unless the evaluation rules establish additional verification procedures.
