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YOU BE THE JUDGE: Verification Testing Deficit or Evaluating in Good Faith?

On April 23, 2015, Public Works and Government Services Canada (“PWGS”) issued an RFP on behalf of the Department of National Defence (“DND”) for a headquarters shelter system (HQSS) and in-service support for it. The first phase of the process evaluated the bids based on bidders’ responses; if the responses passed this phase, physical tests of the bidders’ proposed HQSS would be carried out. Only those bids passing both phases would be considered ‘responsive’ and eligible for consideration.

CAMEC submitted its bid by the amended closing date of September 4, 2015, and passed the first phase. From January 11 to 18, 2016, officials conducted tests and evaluations to assess the physical performance of the proposed HQSS.

On January 13, officials conducted the “flexible footprints verification,” which tested the bidders’ semi-rigid flooring and fabric interchangeability. At the time, CAMEC objected to DND officials being involved in the testing and how those officials interpreted the requirements set out by the RFP. On January 14, CAMEC objected to the type of fuel used in the heater starting test.

On January 15, CAMEC was informed that it did not pass the U-factor heat transmission test, although it was not until May 20 that CAMEC learned that air velocity had not been measured as part of this test, despite being explicitly mentioned in the RFP. On January 18, officials informed CAMEC that it did not pass the snow load test conducted on January 14 and 15.

Both the heat starter test and the snow load test are mandatory aspects of the RFP, meaning that even if CAMEC’s overall score in phase 2 was sufficient to make it ‘responsive’ for the purposes of the RFP, it would be deemed non-compliant if it failed these two tests.

CAMEC made a further objection to PWGS, detailing each ground of objection, on February 24. On May 20, the same day CAMEC was informed that air velocity was not tested in the U-factor heat transmission test, PWGS informed CAMEC that it was denying any relief, and that no re-testing would be conducted.

CAMEC filed a complaint pursuant to subsection 30.11(1) of the Canadian International Trade Tribunal Act, alleged that the performance verification tests were not carried out in accordance with the requirements of the RFP, thus rendering CAMEC’s bid non-responsive. CAMEC requested either that the performance verification tests be re-conducted, or that CAMEC be compensated for a lost opportunity, or that the solicitation be cancelled and a new RFP issued. The CITT is generally of the opinion, as provided for in article 506(6) of the Agreement on Internal Trade, that the tender documents must clearly identify procurement requirements. Further, the CITT generally does not substitute its own opinion for that of the evaluators: ensuring the compliance of a proposal ultimately rests with the bidder.

This complaint was governed by the Agreement on Internal Trade (AIT) and by the Canadian International Trade Tribunal Procurement Inquiry Regulations (Regulations). Do you think this complaint is valid? If yes, what remedy would you grant, with reference to subsection 30.15(3) of the CITT Act?


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In CAMEC Joint Venture v Department of PWGS PR-2016-014, the CITT held that CAMEC’s complaint was valid in part, however the failure to meet two mandatory requirements made the bid submitted by the plaintiff non-responsive. Specifically, on the evidence, the Tribunal found that CAMEC’s complaint regarding the heat starter test was not timely, and that the ground of complaint concerning the snow load was too speculative to be valid. Since both of these tests were mandatory requirements for a bid being determined as ‘responsive,’ the CITT held that CAMEC’s bid could not survive failing these two components.

The Tribunal did find, however, that the complaint made concerning the U-factor test was valid, and that the evaluators did breach the provisions of the AIT, because as CAMEC noted, they had not tested air velocity as specifically stated in the RFP. Because the complaint was valid in part, the CITT considered whether a remedy was owed. Generally, the CITT recognizes that failing to evaluate proposals in accordance with the RFP is a serious deficiency, prejudicing the integrity of the entire system. On the other hand, had PWGS properly conducted the U-factor test, CAMEC would still have failed the other mandatory requirements.

Ultimately, the CITT held that in this case, there was no prejudice to CAMEC and no indication that PWGS was acting in bad faith, and so CAMEC was not granted a remedy.

Editor’s Note:
If this fact pattern is looking familiar, you are indeed a loyal reader! We previously reported on a different compliant involving the same procurement in HDT Expeditionary Systems Inc. v. Department of Public Works and Government Services

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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.