yellow caution tape blocking off area to demonstrate awareness when incumbents are involved in an RFSO

Vintage Designing Co v Canadian Museum of History, CITT PR-2017-050

In October 2017, the Canadian Museum of History (“CMH”) published a Request for Standing Offers (the “RFSO”) for graphic and web design services on MERX. The RFSO hoped to award standing offers to up to ten bidders for work on an as-needed basis for a term of two years with an option to extend the standing offer up to an additional two years.

Five days after the RFSO was published, Vintage Designing Co (“Vintage”) emailed the CMH asking for a free copy of the solicitation. CMH refused, citing its entitlement as a Crown corporation to publish on MERX rather than through the federal government’s free tendering website (buyandsell.gc.ca). Vintage submitted a proposal by the closing date in mid-November but was unsuccessful.

Vintage raised five main grounds of complaint:

  1. the RFSO was improperly posted;
  2. the RFSO was designed to favour incumbent design firms;
  3. the CMH had a bias against sole proprietors and non-incumbents and based its evaluation of Vintage’s proposal on an undisclosed requirement that the proposals contain sample work incorporating CMH’s brand;
  4. the CMH improperly advised Vintage’s owner that she should have submitted work incorporating CMH’s brand during their telephone debrief; and
  5. the CMH should have debriefed with Vintage in person rather than by telephone.

An interesting allegation was that an undisclosed criterion required the bidders to submit an example of work incorporating CMH’s brand. Incumbent design firms seemed to have an advantage, since they would have already produced work with CMH’s brand and would likely submit it even if they didn’t know about the requirement.

While that ground of complaint was ultimately held to be out of time, as it had not been raised within ten working day of the publication of the RFSO, the Canadian International Trade Tribunal (the “Tribunal”) still considered the merits of the complaint. The Tribunal has previously held that government institutions, like the CMH, have a broad discretion in the terms of their solicitation documents. However, requiring prior experience is prohibited unless it is essential to the requirements of the project. The language of the RFSO requested examples of graphic design projects “of similar scope” to CMH’s previous projects rather than language rendering a proposal non-compliant if non-museum pieces were submitted. The Tribunal held that evaluating such examples was “a relevant barometer for the scope of [CMH’s] expected future work requirements.”

The decision, indexed as Vintage Designing Co v Canadian Museum of History, CITT PR-2017-050, held that Vintage’s entire complaint was invalid. However, the CITT did note that Vintage had not, within the requisite ten days, pursued the issue of where the RFSO was posted and did not raise any objection later. Interestingly, the Tribunal made sure to include in the decision that CMH’s duties under the Canadian Free Trade Agreement include making tender notices free of charge and posting them for public access on one of the tendering systems designated by the government.

While the complaint was found to be invalid, the importance of transparency in RFP and RFSO requirements is clear. Procuring organizations must be alive to the issue of incumbent advantage to ensure their requirements do not run afoul of the various trade agreement prohibitions, yet provide the most effective insight into proponents’ ability to meet the owner’s unique requirements.

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case.  For any particular legal problem, seek advice directly from your lawyer or in-house counsel.  All dates, contact information and website addresses were current at the time of original publication.