This article is an extract from the 5th edition of Government Procurement.
In its March 2022 decision in Belanger v. Canada (Patented Medicine Prices Review Board), the Canadian International Trade Tribunal rejected a complaint after finding that the government conducted a reasonable evaluation of the complainant’s proposal. The dispute dealt with a request for proposal (“RFP”) issued by the Patented Medicine Prices Review Board for scientific literature search services.
The complainant alleged that the government failed to properly evaluate its past clinical pharmacy experience. While the RFP failed to define “clinical pharmacy experience”, the government asserted that it evaluated “the clinical pharmacy experience requirement based on its collective experience and shared expertise as professionals in this field and what it believed would be a common understanding of that term among professionals in the field and not based on a specific definition or practice in a specific Canadian jurisdiction.” While the Tribunal noted that the RFP would have been more transparent had it defined the term in question, it found that the evaluation committee “used its knowledge of what clinical pharmacy experience meant to professionals in the field” and that the evaluation committee’s determination that provision of drug information services in a non-clinical environment did not qualify as “clinical pharmacy experience” was reasonable in the circumstances and should have been understood by the complainant when reviewing the tender call terms.
The Tribunal concluded that the complainant’s proposal failed to clarify whether it had provided its prior services directly to patients as required by the relevant section of the solicitation and that the evaluation committee’s scoring was therefore reasonable. While the complaint was ultimately dismissed, this case serves as a useful reminder to purchasing institutions that drafting transparent evaluation criteria that include clear definitions for key terms remains a preferable strategy when compared to relying on the implied meaning of those key terms in the defence of legal challenges.
