Those of you who have taken NECI training will be familiar with our advice to be sure that you “don’t procure your users steak when in fact they wanted spaghetti.” In order to add real value to procurement, you must learn to probe your users and push back against vague requirements. Comments such as, “Don’t worry, the bidders will know what we mean!” should be a huge red flag for seasoned procurement professionals.
This analogy actually played out in the recent CITT ruling in Rockwell Collins Canada Inc. v. Department of Public Works and Government Services PR-2017-006. Briefly, in August 2016 the Department of Public Works and Government Services (“PWGSC”) issued a Request for Standing Offers (“RFSO”) on behalf of the Department of National Defence for the provision of air traffic control radio systems for military bases across Canada. In some places, the RFSO specified that radios with both Very High Frequency (VHF) and Ultra High Frequency (UHF) band capabilities were required – but in other places the RFSO was less clear, using the oblique type symbol (“/”) when referring to different band capability requirements. The RFSO also referred to a “preference” for both capabilities.
The Rockwell Collins Canada Inc. (“Rockwell”) bid had provided pricing for equipment having both capabilities, whereas the bid from Rohde & Schwarz Canada Inc. (“Rohde & Schwarz”) had proposed pricing for equipment with only VHF or UHF band capabilities. As a result, Rohde & Schwarz was awarded the contract as the lowest bidder. Rockwell challenged that decision.
The CITT found that the RFSO did overall contain a requirement that equipment meet both band capabilities, although the language was ambiguous in parts. The CITT also found that the PWGSC evaluation team had ignored its own “preference” for both capabilities, breaching its obligation of fair and equal treatment. In the words of the CITT: “A government institution does no one any favors when it fails to speak clearly, or […] fails to properly define its evaluation criteria. PWGSC did both in this solicitation” (para 42). Further, it became clear to the Tribunal “that PWGSC actually went shopping for bids with not only an ill-defined grocery list, but also without any properly defined criteria for deciding what to buy for dinner” (para 46).
Not surprisingly, the CITT found Rockwell’s complaint valid. As neither re-evaluation nor re-tendering was feasible in this case, the Tribunal awarded Rockwell one-half the profits it would have made had it been awarded the contract. The Tribunal could not ascertain with any certainty what the outcome of re-tendering would be, but it did find that Rockwell would likely have been on equal footing with Rohde & Swartz had the process been properly conducted.
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.