Investigation summaries

Unclear solicitation request cause headaches for suppliers

Summary

The Complaint

A supplier filed a complaint against a federal organization regarding the award of a contract for services issued under a supply arrangement. The Complainant raised two issues:

  • The solicitation was unclear on whether suppliers were to include travel and living expenses in their proposed all-inclusive firm lot price
  • The organization should have sought clarification from the Complainant regarding its financial proposal

Findings

Regarding the first issue, the solicitation lacked clarity regarding whether suppliers were to include travel and living expenses in their all-inclusive firm lot prices.

Regarding the second issue, jurisprudence has established that federal organizations are not obligated to seek clarifications regarding proposals. The organization had the option, but not the obligation, to seek clarification from the Complainant regarding information provided in the proposal. In this instance, the organization stated the proposal was clear and exercised its prerogative to not seek clarification from the Complainant.

Assessment criteria inconsistent with stated basis of selection

Summary

The Complaint

A supplier filed a complaint regarding the award of a contract for services issued under a supply arrangement.  The Complainant alleged the Department:

  • deviated from the applicable departmental policies, directives, standards and procedures
  • did not award the contract in accordance with the basis of selection identified in the solicitation
  • did not properly disclose to the Complainant sufficient information regarding the successful bidder

Findings

Regarding the first allegation, although the Department did adhere to some of the required guidance, it issued a solicitation that did not disclose the maximum budget in accordance with the stated basis of selection.

Regarding the second allegation, the contract was awarded in accordance with the solicitation’s assessment criteria, which recommended the bid with the highest overall point rating for “technical merit and price”.  However, the basis of selection stated in the solicitation was “Highest Rated Within Budget”, which seeks to award contracts based on technical merit rather than price. Therefore, the solicitation contained assessment criteria and a basis of selection that were not aligned, which made the solicitation open to interpretation.

Regarding the third allegation, the Department disclosed information regarding the successful supplier in a manner consistent with the Privacy Act.

Recommendation

Therefore, in accordance with the Procurement Ombudsman Regulations, the Interim Procurement Ombudsman recommended the Department pay compensation to the Complainant.

Federal organization conducted an undisclosed competitive procurement process

Summary

The Complaint

A supplier filed a complaint regarding the award of a contract issued through a call-up made against a standing offer (SO) for the provision of investigation services. The complaint alleged the Department: 1) did not provide sufficient details of the work, activities and timelines in the solicitation; 2) did not disclose its evaluation methodology in the solicitation; 3) did not provide a reasonable timeframe to respond to the solicitation; 4) caused the complainant to reserve resources to perform the work and lose days of consulting work (that is, the solicitation issued by the Department meant that the Complainant would be issued the contract); and 5) did not advise the Complainant in a timely manner that it was not awarded the contract, and the reasons why.

Findings

Regarding the first issue, the review revealed the SO's Statement of Work contained a list of tasks, deliverables and timelines. The Office of the Procurement Ombudsman (OPO) found the Department did provide the Complainant with sufficient details in the solicitation. To the extent that the Complainant had concerns regarding the solicitation, it should have sought clarification or raised those concerns to the Department prior to submitting its proposal.

On the second issue, OPO found that the Department solicited and compared multiple proposals, thereby creating a competitive process. In doing so, the Department was required to, but did not, disclose its evaluation criteria and selection methodology in the solicitation.

On the third issue, the review revealed that the SO required proposals to be submitted within 3 business days, and the Department provided the Complainant with 8 business days to respond. OPO found no evidence to support the allegation that the Complainant was rushed by the Department to submit a proposal.

On the fourth issue, the review revealed that the SO established a sequential approach for contacting qualified suppliers, and that the Department failed to notify the Complainant that its proposal was not selected. OPO found that the Department's solicitation made it reasonable for the Complainant to assume it would be issued the contract.

On the fifth and final issue, OPO found the Complainant was not advised in a timely manner that it was not awarded the contract. The notification should also have included the name of the successful supplier, the estimated value of the contract, and an overview of the reasons why the Complainant's proposal was not selected.

Recommendation

In accordance with the Procurement Ombudsman Regulations, the Interim Procurement Ombudsman recommended the Department pay compensation to the Complainant.

Ombudsman recommends compensation to a bidder as a federal organization did not comply with procurement requirements

Summary

The Complaint

A supplier filed two complaints regarding two federal contracts awarded for the provision of investigative services issued through a call-up made against a National Master Standing Offer (NMSO). The Complainant raised the following issues in both complaints: 1) the Department did not provide sufficient details of the work activities to be performed, the deliverable(s) and the associated timelines; 2) the Department did not disclose its evaluation methodology in the solicitation; 3) the Department did not provide the Complainant with a reasonable timeframe within which to respond to the solicitation; 4) the Complainant believed that the solicitation issued by the Department meant that the Complainant would be issued the contract, but was not; and 5) the Complainant was not advised in a timely manner that it was not awarded the contract, and was not provided the reasons why.

Findings

In relation to the first issue, both reviews found that the Department did not provide the Complainant with sufficient details of the work to be performed, as required by the NMSO. However, the Complainant should have asked for clarification or raised concerns to the Department upon becoming aware of this, and prior to submitting proposals.

On the second issue, both reviews found that the Department solicited and compared multiple proposals, thereby creating a competitive process. In doing so, the Department was required to, but did not, disclose evaluation criteria for the solicitation.

On the third issue, both reviews found no evidence to support the Complainant's allegation that it was rushed by the Department to submit its proposals.

On the fourth issue, both reviews found no merit to the allegation, as a standing offer does not guarantee business unless a bidder is notified by the Department that its proposal is accepted.

On the fifth and final issue, one review found the Department did not advise the Complainant it was not awarded the contract in a timely manner. The other review found that the Complainant was advised in a timely manner. In both cases, the Department did not follow internal guidance to provide unsuccessful bidders with additional information, such as the name of the successful supplier, the estimated amount of the contract, and the reasons why bids were not selected.

Recommendation

As a result of these findings, and in accordance with the Procurement Ombudsman Regulations, the Interim Procurement Ombudsman recommended the Department pay compensation to the Complainant for each respective complaint.

Federal organization did not follow its internal evaluation instructions

Summary

The Complaint

A supplier filed a complaint regarding the award of a contract for services by a federal organization, issued following a solicitation under a supply arrangement. The Complainant alleged: 1) its proposed resource was improperly deemed unqualified for not meeting a mandatory experience criterion; and 2) the Organization granted an extension to the bid closing date, and changed certain criteria, to allow a resource from another supplier to qualify.

Findings

Regarding the first issue, the Office of the Procurement Ombudsman (OPO) found the Organization did not follow its internal evaluation instructions by failing to provide detailed written comments to explain how the Complainant's proposal did not meet a mandatory criterion. The reasons provided for deeming the proposal non-compliant included some that were not germane to the criteria established by the Organization in the solicitation. The Organization also failed to explain why the proposed resource's experience in the area of legal/ litigation, cited as a reason for non-compliance, was not considered sufficiently similar to the listed criteria. OPO was therefore unable to determine the basis upon which the proposal was deemed non-compliant in accordance with the criteria listed in the solicitation.

On the second issue, the review revealed that the extension granted to the bid closing date was applied equally to all invited suppliers. In addition, OPO found no evidence to suggest that a clarification to a mandatory criterion benefitted any supplier, as the requestor was ultimately deemed non-compliant, and the winning bidder had already submitted its proposal when the request was granted. Lastly, OPO found that although the winning bidder did gain additional points as a result of a change to a rated criterion, it had no effect on the outcome of the procurement as the same supplier would have received the contract had this change not been made. For these reasons, OPO was unable to substantiate the allegation of favoritism.

Ombudsman recommends compensation to bidder who was treated unfairly

Summary

The Complaint

A supplier filed a complaint regarding a contract awarded for the provision of audit services. The Complainant raised the following issues: there was an inappropriate allocation of points regarding the scoring of a rated criterion; the Department used an undisclosed evaluation criterion; and the Department's assumption that the Complainant could not complete the work with the proposed level of effort was inappropriate.

Findings

The review revealed that the Complainant's proposal had been evaluated twice. The result of the first evaluation showed the Complainant's proposal was deemed the winner. Subsequent to re-evaluation, the Complainant's proposal was the second-ranked, and therefore the Complainant was not awarded the contract. In reviewing the Complainant's first issue, the Office of the Procurement Ombudsman (OPO) noted the Department did not award points according to the instructions set out in the solicitation in re-evaluating the Complainant's proposal, thus failing to adhere to the requirements of the Treasury Board Contracting Policy.

On the second issue, the review revealed the solicitation explicitly identified the rated sub-criterion in question. However, in re-evaluating the Complainant's proposal, the Department applied a minimum “critical threshold” that had not been disclosed to bidders. Therefore, the Department applied an undisclosed evaluation factor in the re-evaluation of the Complainant's proposal.

On the third issue, OPO noted concerns with the Department's explanation for how it awarded points to the Complainant's proposal during the re-evaluation. The explanation failed to provide a reasonable rationale for the Department's concerns regarding the Complainant's proposed level of effort. It was therefore inappropriate for the Department to assume the Complainant could not complete the work with the proposed level of effort.

Recommendations

The complainant would have been awarded the contract had the Department appropriately applied the evaluation criteria or not used an undisclosed evaluation factor. As such, the Procurement Ombudsman recommended the Department pay compensation to the Complainant.

Given the fairness and transparency of this procurement process were prejudiced, the Procurement Ombudsman also recommended the Department take steps to ensure all individuals directly involved in this procurement process are aware of, and adhere to, obligations under the Treasury Board Contracting Policy.

Request for proposal with unclear estimates impacts a bidding process

Summary

The Complaint

A supplier filed a complaint regarding the award of a contract for the provision of data entry, accuracy and quality services by a federal organization. The supplier raised three issues: 1) The methodology used for calculating the bid did not reflect true scope of the project; 2) The methodology to evaluate bids had a negative impact on the Complainant's bid; and 3) The format of the Financial Proposal did not indicate that fixed costs needed to be or should be prorated.

Findings

With regards to the first issue, the Office of the Procurement Ombudsman (OPO) found the Request for Proposal (RFP) contained unclear information regarding the volume of records the winning bidder would be required to process under the contract. The lack of clear and accurate estimates in the RFP made it difficult for suppliers to determine the “true scope” of the project.

On the second issue, OPO found no evidence to suggest the methodology used to evaluate bids had a negative impact on the Complainant's bid, and bids were evaluated according to the methodology specified in the RFP.

Regarding the third concern, the RFP did not indicate that fixed costs needed to be or should be prorated. In addition, the RFP defined what tasks should be included in the fixed cost component of bids. However, one decision bidders were required to make for this RFP was how to allocate all costs when developing bids. The lack of a clear estimated volume of work may have made it difficult for suppliers to make informed decisions regarding how to develop the financial component of their bids.

Although the requirement lacked clarity, suppliers were provided with the same information on which to formulate their bids. When evaluating the bids, the federal organization in question followed the evaluation methodology as specified in the RFP and chose the lower priced bid in accordance with the RFP.

Departmental delays impede a supplier's ability to submit a bid

Summary

The Complaint

A supplier filed a complaint regarding a contract awarded for the provision of access to information consultant services. The supplier raised three issues: 1) The Department did not provide enough time for the supplier to prepare and submit a bid; 2) A rated evaluation criterion was flawed since it was impossible to obtain the maximum number of points; and, 3) There were discrepancies between the resources requested through the solicitation and the procurement tool (supply arrangement) being used.

Findings

On the first issue, the review revealed the Department did invite the Complainant as it had requested. However, it took three business days for the Department to send the invitation to the Complainant on a five-day solicitation process. The Complainant therefore had less than 24 hours to prepare and submit a bid to a solicitation that contained numerous evaluation criteria. These actions impeded the Complainant's ability to prepare and submit a bid. Additionally, the Department demonstrated inconsistent actions by offering to extend the deadline for submitting bids to one supplier approximately 24 hours before refusing the first of the two requested extensions (by the Complainant and another supplier).

On the second issue, the Office of the Procurement Ombudsman (OPO) noted that the Access to Information Act did not come into force until 1983, meaning the maximum number of years' experience a bidder could have was 32 years, thereby making it impossible to obtain the full 40 points for 35 years of experience specified in the solicitation. OPO therefore questioned the Department's rationale for establishing a level of experience for which full marks could not be obtained, and for failing to correct the issue once it was brought to its attention by suppliers during the solicitation period.

Finally, on the third issue, OPO found a disconnect between the resource classification requested by the Department in the solicitation and the information found in the procurement tool (supply arrangement) utilized in the process. The Department sought a resource level that was lower than the one that should have been requested to meet requirements specified in the solicitation.

The review concluded that the Department affected the openness of this process by impeding the Complainant's ability to prepare and submit a bid. As well, the Department affected the fairness of the process by not treating the Complainant equally. Fairness was further affected by the Department's inconsistent use of its discretion to extend the solicitation periods for various suppliers invited.

Were contractual obligations met by the federal organization?

Summary

The Complaint

A supplier filed a complaint regarding the administration of a contract for privacy impact assessment (PIA) services by a federal organization. The supplier raised three issues that fell within the Procurement Ombudsman's mandate: 1) the federal organization did not respect its contractual obligations regarding payment and interest payment; 2) terminating the contract for default was not valid as the supplier's work was delivered within timelines; and 3) several contractual obligations were not fulfilled by the federal organization.

Findings

This was the first review of the administration of a contract undertaken by the Office of the Procurement Ombudsman (OPO) since OPO opened in 2008.

With regards to the first issue, during the course of OPO's review the federal organization issued a payment and interest payment to the supplier.

On the second issue, the federal organization was permitted, by the terms of the contract, to terminate the contract for convenience. However, in terminating the contract for convenience, the termination notice made a reference to "unsatisfactory" work which appears to have been the impetus for the issues that arose between the supplier and the federal organization. The supplier and the federal organization had a disagreement regarding the quality of deliverables. OPO was not provided any records that demonstrated the federal organization's concerns regarding the quality of the supplier's deliverables were provided to the supplier in writing.

Regarding the third concern, the federal organization admitted it did not provide comments on a draft document within five days as required by the contract.

Given this was a review of the administration of federal contract, and pursuant to Subsection 21(b) of the Regulations, the Procurement Ombudsman was prohibited from providing a remedy other than as specified in the contract. Given the issues raised in the complaint, the only remedy in the contract would have been payment, which the federal organization issued to the supplier during the conduct of this review. As such, the Procurement Ombudsman could not recommend any other remedy.

Mandatory security requirement questioned

Summary

The Complaint

A supplier filed a complaint regarding a contract awarded for the provision of risk assessment services. The supplier raised three issues: 1) The solicitation's security requirement did not allow a proposed resource (that is an individual) with a higher level personnel security clearance to do work on a contract for a company with lower level of security clearance; 2) The need for a bid to demonstrate a valid security clearance at bid closing was detrimental to small businesses; and 3) A lack of communication and advice provided by the department.

Findings

With respect to the first issue, the security requirement did not prevent a resource cleared at a Secret (that is higher) level from doing work at a Reliability (that is lower) level for a company with Reliability level security clearance because a process was available for such situations. The process was to downgrade the proposed resource's Secret level clearance to a Reliability level then duplicate the clearance so that it was “held” by the company submitting the proposed resource. While this issue did not surface prior to bid closing, once it surfaced the supplier was not informed of the correct process.

For the second issue concerning the timing of the mandatory security requirement, the Procurement Ombudsman concluded that jurisprudence has established that departments have the discretion to define their procurement requirements to meet their operational needs. By establishing the security requirements as a mandatory evaluation criteria at bid closing, the department was required to deem any bids not meeting this mandatory criteria as non-responsive. While the records provided to the Procurement Ombudsman for this review did not contain any indication that imposing a security requirement by bid closing was done intentionally to be detrimental to any group, class or size of businesses, requiring security by bid closing may have inadvertently deterred otherwise qualified suppliers from bidding. The department informed OPO it has updated its practices and will now require security clearances be demonstrated at contract award (instead of bid closing).

For the third concern related to a lack of communication and advice, the Procurement Ombudsman found communications were not timely and that the department did not provide the proper advice to the supplier.

The onus to demonstrate how a proposal meets the evaluation criteria rests with the supplier

Summary

The Complaint

A supplier (the Complainant) filed a complaint regarding the award of a contract for professional services alleging the department did not evaluate its proposal correctly. The Complainant alleged its proposal should have been awarded an additional point for the technical rated criteria, which would have resulted in the Complainant being awarded the contract.

Findings

Given the scoring formula stated in the solicitation, the Complainant's assertion was correct in that it would have been awarded the contract had its proposal received one additional point. The Complainant contended its proposal fully demonstrated the experience criterion was met, whereas the department felt the Complainant's proposal failed to clearly demonstrate how it met the stated criteria.

Jurisprudence has established that in the submission of bidding documentation, the burden rests on the bidder to demonstrate how its proposal meets the evaluation criteria.

The Procurement Ombudsman Regulations prevent the Ombudsman from substituting his opinion for the judgement of the department unless there is insufficient written evidence to support that assessment, or the assessment is unreasonable. The Ombudsman found sufficient written evidence to support the assessment, and found the assessment to be reasonable. In addition, documentation provided by the department confirmed that all technical rated criteria were evaluated in a consistent manner across bids.

Therefore, the Ombudsman concluded the department followed the established rules and applicable legislation, policies and guidance, and evaluated the proposals in an equal and fair manner.

Organization properly awarded the contract, but may have unnecessarily limited the pool of potential suppliers

Summary

The Complaint

A supplier filed a complaint regarding the award of a contract for research and analysis services. The supplier raised issues regarding the evaluation and selection criteria used by the department in awarding the contract.

Findings

The Procurement Ombudsman concluded that the issues raised by the Complainant did not have merit. The Department had the discretion to define its procurement requirements in accordance with its operational needs, and there was no basis for the Ombudsman to question the rationale provided by the Department for requiring insurance. However, by requiring proof of insurance at the time of bid closing, rather than at the time of contract award, the Department may have unnecessarily limited the pool of potential suppliers.

In addition, although the Procurement Ombudsman had no basis to question the rationale provided to OPO by the Department regarding a mandatory experience requirement, the Department could have provided a more informative response to a supplier's question, raised during the solicitation period, related to the experience requirement in question.

As the Department awarded the contract in a manner consistent with the evaluation and selection procedures stated in the Request for Proposals, the Procurement Ombudsman did not recommend payment of compensation to the Complainant.

Compensation recommended for a supplier whose proposal was improperly rejected

Summary

The Complaint

A supplier filed a complaint regarding the award of a call-up against a standing offer for Temporary Help Services. The supplier raised issues regarding the evaluation of its bid and the results of a reference check conducted as part of the evaluation process.

Findings

The Procurement Ombudsman concluded that the issues raised by the Complainant had merit. More specifically, the Department improperly evaluated the Complainant's bid by denying the proposed resource's experience. In addition, the Ombudsman identified concerns with the reference check conducted by the Department.

The Procurement Ombudsman further concluded that had the Department assessed the Complainant's bid in a manner consistent with its assessment of the successful supplier's bid, the Complainant's bid would have been deemed responsive and would have been awarded the contract.

Based on these findings, the Procurement Ombudsman recommended the Department pay compensation to the supplier in accordance with the Procurement Ombudsman Regulations.

Was a supplier banned from bidding?

Summary

The Complaint

A supplier (the Complainant) filed a complaint regarding the award of a contract for credit reporting services. The complaint alleged that the supplier had been banned from bidding and raised several related issues.

Findings

The Procurement Ombudsman found that the Department had no basis to prevent the Complainant from bidding once the supplier requested to be included in the procurement process. By not including the supplier, the Department unjustifiably limited competition and in doing so did not adhere to the Treasury Board Contracting Policy requirement to provide equal opportunity for access to government business.

The Procurement Ombudsman also found other issues with the procurement in question, including the use of undisclosed criteria to select a winning supplier. In doing so, the Department failed to adhere to the Treasury Board Contracting Policy thereby compromising the principles of fairness, openness and transparency. 

Recommendations

As the Department prevented the Complainant from submitting a bid in the competitive process, the Ombudsman recommended payment of compensation to the Complainant. 

The Ombudsman also recommended the Department take the necessary steps to develop a procurement strategy for its ongoing requirement for credit reporting services.

Poorly written solicitations can cause confusion for suppliers

Summary

The Complaint

A supplier filed a complaint regarding the award of a call-up against a standing offer for temporary help services. The supplier raised three issues regarding: 1) the period of work; 2) the minimum mandatory qualifications for education; and 3) the department's communication during the solicitation period.

Findings

Regarding the first issue, the supplier claimed the solicitation contained contradictory information regarding the period of work. The review determined the solicitation did contain contradictory elements regarding the period of work given it stated 6 weeks of work was required, yet the estimated start and end dates of the contract were not 6 weeks apart.

The supplier also claimed the solicitation contained questionable elements regarding the minimum mandatory qualifications for education. From the supplier's perspective, the educational requirements were not relevant to the required service. However, the department included the required minimum mandatory qualifications for education as prescribed by the standing offer. Therefore, the review did not validate the complainant's issue.

With respect to the third issue, the supplier claimed it asked the department questions during the solicitation period to clarify the requirements and that no responses were provided. The department acknowledged it did not respond to the supplier's questions during the solicitation process.

While the review has established merit in two of the three issues raised by the supplier, an examination of the procurement process overall revealed the department adhered to the call-up procedures required by the standing offer and thus awarded the call-up appropriately.

Department's approach to soliciting proposals was not consistent with government policy

Summary

The Complaint

A supplier filed a complaint regarding the award of a contract for services. The supplier's allegations included that the department: conducted a competition to award a contract that did not respect the rules of a Standing Offer (SO) or Treasury Board (TB) policy; failed to identify the work activities to be performed; did not establish evaluation criteria; favoured a particular supplier; and failed to inform the supplier that it would not be awarded the contract and to provide the reasons why its proposal was unsuccessful.

Findings

Regarding the rules of the SO or TB policy, the Procurement Ombudsman concluded the SO in question was used to identify and invite suppliers but was not used to award the contract. By inviting multiple suppliers to submit proposals, the department initiated a competitive process and was therefore required to, but did not, adhere to the TB Contracting Policy. The Procurement Ombudsman also found the department did not provide suppliers with the required details regarding the work to be completed, nor did it establish or communicate the evaluation criteria to be used. Moreover, the department did not establish an objective basis for determining supplier capability to perform the work.

On the issue of favouritism, the Procurement Ombudsman concluded the department had, in fact, considered awarding the contract to the complainant. Nonetheless, the chronology of events suggests there was a predisposition to award the contract to the lower cost supplier prior to receiving the complainant's proposal.

Finally, the department acknowledged it did not provide a debrief to the complainant regarding the award of the contract or the evaluation of the proposal.

Based on these findings, the Procurement Ombudsman recommended the department pay compensation to the supplier in accordance with the Procurement Ombudsman Regulations.

Was a supplier disadvantaged by an unreasonable criterion?

Summary

The Complaint

A supplier filed a complaint regarding the award of a contract for services. The supplier raised issues concerning the following items: 1) certification and allocation of points; 2) loss of points and inconsistencies; and 3) transparency of the process.

Findings

With respect to the first issue, the supplier contended that a rated criterion requiring a specific certification, and the corresponding allocation of points, were unreasonable. In his findings, the Procurement Ombudsman referred to jurisprudence which has established that a department has the discretion to define its requirements to meet its operational needs. As an explanation of the need for the certification was included in the Request for Proposal (RFP), the Procurement Ombudsman found no reason to question the reasonableness or relative weight, in terms of points allocated, of the certification.

The supplier also raised an issue regarding alleged inconsistencies with regard to evaluation criteria between different Requests for Proposal (RFP). Specifically, the supplier questioned why the RFP in question required the submission of a report when previous RFPs for the same service did not include the same requirement. On this matter, the Procurement Ombudsman concluded that because the supplier did not submit the required report, the department could not, as per established procurement rules, award points to the supplier's proposal for this element. In addition, the Procurement Ombudsman noted he does not have the legal authority to review questions related to inconsistencies across different contract award processes.

The third concern related to the overall transparency of the process. While the department provided the value of the resulting contract and the name of the successful supplier, as encouraged by the Treasury Board Contracting Policy, the request for the score and point breakdown of the winning bidder was denied. On this matter, the Procurement Ombudsman concluded that while the department was under no policy obligation to provide a debriefing, the Contracting Policy also did not prevent the disclosure of the winning bidder's overall score. Nonetheless, the department was not required to provide the point breakdown. The Procurement Ombudsman found no evidence of a transparency issue.

As the issues raised by the supplier could not be substantiated, the review did not establish the necessary grounds to enable the Procurement Ombudsman to recommend remedy or relief as requested by the supplier.

A mandatory criterion questioned

Summary

The Complaint

A supplier filed a complaint regarding a Request for Proposal (RFP) for services. The supplier raised two issues: 1) the importance and value added, in terms of contract performance, of the mandatory criterion requiring an association membership, 2) his proposal was found non-compliant because the department's interpretation of the criterion was overly restrictive.

Findings

With respect to the first issue, the Procurement Ombudsman concluded that jurisprudence has established that a department has the discretion to define its requirements to meet operational needs. As the department provided reasoning for requesting membership in an association, the Procurement Ombudsman found no reason to question the reasonableness of the requirement.

With respect to the second issue, the mandatory criterion also stipulated that suppliers provide a certificate as proof of membership to an association, and identified one association as an example. As this association did not provide certificates at the time, the supplier alleged the department should have alternatively accepted a letter from the association demonstrating membership. On this matter, the Procurement Ombudsman concluded that by establishing the criterion as it did, the department had an obligation to declare the supplier's proposal non-compliant and, in doing so, its interpretation of the criterion was not overly restrictive.

The Ombudsman further noted, however, that the requirement to submit a certificate may have been unnecessarily restrictive on suppliers who were exclusively members of a specified association which did not provide certificates at the time of the solicitation. In addition, the Ombudsman found that because the supplier met the other mandatory criteria and his proposal was priced lower than the awarded contract, the requirement to provide a certificate may have resulted in the department overpaying for the service.

As the department did not provide OPO with access to all the required records associated with the award of this contract, the Procurement Ombudsman was unable to determine if the department, in conducting its evaluation of the bids, applied the criterion consistently to all bidders or in a way so as to intentionally disqualify the complainant. The Procurement Ombudsman was therefore unable to assess the extent to which the fairness, openness or transparency of this procurement process was prejudiced.

Despite repeated attempts to obtain the documents necessary for the conduct of this review, including a request to the Deputy Head of the organization, the department chose to provide limited material in the form of redacted documents which the department stated were "within the parameters of the Privacy Act and the Access to Information Act". This deliberate withholding of the records impeded the Ombudsman's ability to execute his mandate as required by Section 12(1) of the Regulations. This represents the first complaint review where the information made available by the department was insufficient to enable the Ombudsman to assess the extent to which the fairness, openness or transparency of the department's procurement process was prejudiced as required by the Regulations.

Was a supplier disadvantaged when a department misplaced a proposal?

Summary

The Complaint

A supplier filed a complaint about a department misplacing their proposal and then evaluating it after the contract had been awarded to another supplier. The supplier further complained that the department failed to follow standard evaluation procedures by not separating the technical and financial components of the proposal during the evaluation process. The supplier requested compensation for expenses incurred in preparing the proposal.

Findings

For proposals to be treated fairly and equally, they must all be evaluated prior to the award of the contract. In this instance, the supplier's proposal was not evaluated until after the contract was awarded, and the Procurement Ombudsman found that the department's evaluation process did not respect the principle of fairness.

The Ombudsman further found that although the department originally misplaced the supplier's proposal and only assessed it after the award of the contract, this neither prejudiced the supplier's proposal nor did it directly result in any loss. The Ombudsman therefore did not recommend compensation.

Nevertheless, the Ombudsman made recommendations to the department to strengthen their procurement practices as a lack of documentary evidence on file (for example regarding the process for evaluating the technical and financial components of the proposal) leaves the department vulnerable.

Excessive criteria for the work to be done?

Summary

The Complaint

A supplier filed a complaint regarding a Request for Proposal (RFP) for research services. The supplier alleged the department unnecessarily restricted competition by including criteria which were excessive for the work to be done, including: 8 years experience; the completion of a minimum of 3 research projects over 8 years; and 3 years experience carrying out the service in specific geographic locations.

Findings

Through a review of the documentation related to this contracting process, the Procurement Ombudsman found no evidence to suggest the Department unnecessarily restricted competition. The Department demonstrated a legitimate requirement for the experience requested in the RFP, and how the required experience was directly relevant to the work to be conducted as well as the operational requirements of the Department. The Procurement Ombudsman found no evidence to substantiate the issues raised by the complaint.

Department did not indicate the basis of selection to award a contract

Summary

The Complaint

A supplier filed a complaint regarding the award of a contract by a federal department using a Standing Offer (SO) contracting vehicle. The supplier alleged the department: improperly conducted a competitive process; failed to indicate the basis upon which the contract would be awarded; did not provide enough details for suppliers to be able to identify all activities to be performed under the contract; provided an unfair advantage to the winning supplier by writing directly to them; and failed to communicate the result of the process to the unsuccessful suppliers.

Findings

The Procurement Ombudsman's review was based upon documents made available by the Complainant and the department.

The Ombudsman found that although SOs are not intended to solicit bids each time, the SO in question provides the Project Authority discretion to accept or reject proposals, and contains no wording that explicitly permits or prohibits the Project Authority from conducting a competitive process.

The Department requested and considered proposals from SO holders, evaluated the proposals and utilized price as the determining factor. As this approach to awarding the call-up constitutes a competitive process, the department had a responsibility to, but did not, inform suppliers of the basis on which it would select the winning supplier.

As Privacy Act considerations prevented OPO from receiving copies of all documents provided to suppliers, the Ombudsman was unable to determine if suppliers received sufficient information to allow them to identify all activities to be performed under the contract.

With respect to the claim of unfair advantage to the winning supplier, the Ombudsman found that one-on-one written communication occurred not only between the department and the winning supplier, but also between the department and the Complainant. The Ombudsman found no evidence to suggest that any unfair advantage was provided to the winning supplier.

Regarding the final allegation, the department acknowledged it did not, but should have, provided the contract award information to the unsuccessful suppliers.

Based on these findings, the Procurement Ombudsman recommended payment of compensation to the supplier.

Compensation recommended for supplier whose bid was wrongfully rejected.

Summary

The Complaint

A supplier filed a complaint regarding a Temporary Help Services (THS) contract issued by a federal department. The Complainant alleged that the department had deemed their proposal non-compliant for not meeting the mandatory education requirement of having a secondary school diploma, despite having demonstrated that the proposed resource held both Bachelor of Arts and Master of Arts degrees.

Findings

During the course of the Procurement Ombudsman's review the department acknowledged that the wording of its solicitation might have caused some uncertainty for bidders, and offered compensation equal to 10% of the value of the contract. The department further acknowledged the merits of the complaint and that the contract would have been awarded to the Complainant but for the mandatory education requirement.

Based on the department's acknowledgements, the Procurement Ombudsman concluded the review and recommended compensation be paid to the Complainant.

Did the department adhere to the terms and conditions of the Standing Offer?

Summary

The Complaint

A supplier filed a complaint with OPO concerning the award of two federal contracts using the Standing Offer (SO) contracting vehicle. The supplier alleged that: (i) the department conducted a competitive process which was not allowed under the provisions of the SO; (ii) the department did not provide enough details for suppliers to be able to identify all activities to be performed under the contract; and (iii) the department did not respond to a request for a debriefing (explanation) to discuss the unsuccessful proposal.

Findings

The Procurement Ombudsman's review concluded in terms of the first allegation (i): A) There is no wording in the SO that explicitly permits or prohibits a competitive process. B) The manner in which the department solicited and compared bids constituted a competitive process. C) The selection of a supplier based on undisclosed criteria compromised the fairness and transparency of that process. In terms of the second allegation (ii): the SO required the department to provide suppliers with additional information such as details of the work activities and a description of the deliverables to be submitted, and there was no evidence that this additional information was provided. With respect to the third allegation (iii): the Treasury Board Contracting Policy encourages debriefing of unsuccessful bidders; in this case, no evidence was found to demonstrate that a debrief had taken place.

Based on these findings, the Ombudsman recommended payment of compensation to the complainant.

Are subject-matter experts required to evaluate proposals?

Summary

The Complaint

A complaint was filed regarding the award of a contract for communication services. A supplier complained their proposal was unfairly and unjustifiably eliminated, and that the evaluation team: failed to take into account all information in the proposal, lacked expertise to evaluate the proposal, and consulted among themselves. The supplier also complained the evaluation team was not prepared to reverse its decision when presented with "clear evidence of unfairness", and that the sum of these concerns demonstrate incompetence or ulterior motives (such as selecting a preferred supplier) on the part of the department.

Findings

After a review of the information, the Procurement Ombudsman concluded the supplier's concerns could not be substantiated.

While there was no evidence in file indicating whether or not all information in the proposal was considered by the evaluation team, the complainant's proposal was correctly eliminated as it failed to meet one of the required criteria.

In addition, legal jurisprudence has held that evaluation teams need not possess subject-matter expertise in order for evaluations to be fair and reasonable.

OPO found the evaluation team had consulted among themselves for the purpose of reaching a consensus, and this is a normal part of the evaluation process. There was no documentation showing "clear evidence of unfairness" and no information was found to indicate there was incompetence or ulterior motives on the part of the department.

Notwithstanding the above, the department did not fully meet the Treasury Board Contracting Policy requirement for procurement files to be documented in a way that allows for an understanding of decisions made and actions taken on the file. Nonetheless, in this case additional file documentation would not have changed the result of the supplier's proposal being eliminated.

Supplier's bid wrongfully deemed non-compliant on the basis of undisclosed evaluation criteria

Summary

The Complaint

A supplier filed a complaint about a bid solicitation for communication services claiming: a breakdown of the allocation of points for the rated (that is score-based) criteria was not provided in the solicitation documents; no minimum score was provided for the rated evaluation criteria; another round of solicitation was launched without giving the supplier's bid further consideration; and a the supplier's request for a debriefing was declined by the department.

Findings

After a review of the information, the Procurement Ombudsman found evidence to support the issues brought forward by the supplier.

The department's bid evaluators were provided with a breakdown of how points should be allocated for the rated evaluation criteria. However, the solicitation documents provided to suppliers did not contain the same information.

OPO also noted the solicitation documents did not specify that a minimum score was required for bids to be considered compliant. The department's bid evaluators, however, were provided with this information and the supplier's bid was subsequently deemed non-compliant for failing to obtain the minimum score.

OPO found the department initiated another round of solicitation to find another resource; however, it was cancelled and no contract was awarded. The department did reconsider the supplier's bid after objections were raised.

With respect to the fourth issue, OPO found evidence demonstrating the supplier's request for a debriefing was initially denied by the department. A formal debrief was provided to the supplier but only after the complaint was filed with the Office of the Procurement Ombudsman.

Although there was evidence supporting the issues brought forward by the supplier, the Procurement Ombudsman could not recommend compensation to the supplier as it was not applicable in this case. When the supplier's bid was evaluated against the criteria as presented in the solicitation documents, it was determined the supplier would not have been awarded the contract. For this reason, the Procurement Ombudsman could not recommend compensation for lost profits. Additionally, all bidders were treated equally and the supplier was given the same opportunity to be awarded a contract as the other bidders. For this reason, the Procurement Ombudsman could not recommend compensation for bid preparation costs.

Did a department act in a fair, open and transparent manner?

Summary

The Complaint

A Department had a need for consulting services and invited six suppliers to bid. One of those suppliers filed a complaint claiming the evaluation criteria unfairly limited the opportunity to specific suppliers, and that the Department refused to adjust the criteria. The supplier also claimed the Department refused to provide information regarding when, and to whom, the contract was awarded. Further, the supplier claimed there had been questionable communication between the Department and the supplier awarded the contract.

Findings

A review of the Department's files showed the rationale for using mandatory evaluation criteria was based on operational requirements. As a result, the Procurement Ombudsman found no basis to conclude that the Department unfairly limited the opportunity to specific suppliers.

Regarding the supplier's claim that the Department refused to adjust the criteria, the Procurement Ombudsman found the Department, in response to one of the questions asked by the supplier, adjusted the mandatory evaluation criteria by broadening the type of experience required.

As for information regarding when and to whom the contract was awarded, the Procurement Ombudsman found that the Department complied with policy, which states this information cannot be disclosed before the contract is awarded. However, after the contract was awarded, the Department continued to withhold the information from the supplier, claiming the supplier was not entitled to the information as the supplier had not submitted a bid. The Procurement Ombudsman noted there is no regulatory or policy provision requiring a supplier to submit a bid in order to obtain this information, and recommended the Department ensure its practices comply with the Access to Information Act.

Regarding the supplier's claim that there was questionable communication between the Department and the supplier awarded the contract, the Procurement Ombudsman found no evidence to support this.

Were suppliers discouraged from bidding and others given an advantage?

Summary

The Complaint

A supplier filed a complaint claiming a Department issued a bid solicitation for professional services late in the day just before a long weekend to discourage participation. The supplier also claimed the evaluation criteria related to previous experience gave an advantage to suppliers that had already provided these services to the Department. The supplier decided not to submit a bid.

Findings

Although the bid solicitation was issued late in the day just before a long weekend, the Department sent the documents to all invited suppliers at the same time and gave them 15 calendar days to submit a bid. The Procurement Ombudsman found the timing and period of solicitation, which was consistent with guidance documents, should not have discouraged the supplier from submitting a bid.

Although the supplier claimed the evaluation criteria gave an advantage to suppliers that had already provided the services, the Procurement Ombudsman found that the mandatory evaluation criteria was not overly restrictive and there was no basis to conclude it favoured a particular supplier. As for the rated evaluation criteria, the Procurement Ombudsman found it neither provided an advantage to suppliers who had previously provided the services to the Department nor did it disadvantage any supplier who had provided the services to other departments.

The Procurement Ombudsman noted that, during the solicitation period, the supplier asked questions to the Department regarding the evaluation criteria. The Procurement Ombudsman could not find documentation on file to demonstrate the questions asked by the supplier, or any answers provided by the Department, were shared with the other suppliers. In order to ensure the solicitation process is fair, questions and answers during the solicitation period should be shared with all suppliers invited to bid.

Evaluation criteria not applied as stated in the bid solicitation

Summary

The Complaint

A supplier filed a complaint about a bid solicitation for consulting services claiming: the supplier awarded the contract was unfairly favoured; the financial evaluation criterion, based on an hourly rate, was improper for the requested services; the financial evaluation section was unclear; and the Department applied undisclosed evaluation criteria (not known to potential suppliers) when evaluating the financial part of their bids.

Findings

Regarding the claim that the supplier awarded the contract had been favoured, the Department provided evidence demonstrating the supplier was not favoured or given an unfair advantage in the solicitation process. Nonetheless, the Procurement Ombudsman noted that, while the Department asserted the supplier awarded the contract met a mandatory criteria to have a specific certification at the time of bid closing, there was no evidence on the Department's file to support this assertion.

As for whether the financial evaluation criterion was improper for the requested services, the Procurement Ombudsman noted the use of an hourly rate can be used for evaluation purposes regardless of any industry standards. The Procurement Ombudsman further noted the Supreme Court of Canada established that an organization soliciting bids has the discretion to set its own requirements and criteria, provided they are justified. In this case, the Procurement Ombudsman did not find evidence on the file justifying the Department's decision to use an hourly rate to evaluate bids.

Regarding the claim that the financial evaluation section was unclear, the Procurement Ombudsman found it contained no level of vagueness or ambiguity. The review of the process revealed there was nothing precluding any supplier from seeking clarification during the solicitation period.

As for whether the Department applied undisclosed criteria when evaluating the financial proposals, the Procurement Ombudsman found the Department did change its strategy from what was stated in the solicitation document. This compromised the integrity and transparency of the procurement process. The Procurement Ombudsman recommended the Department ensure evaluation criteria is applied, as stated in solicitation documents, when evaluating bids.

Finally, as the Department was unable to provide key documents to support decisions made and actions taken, the Procurement Ombudsman recommended the Department provide guidance and direction to procurement officials as to what is expected to be documented on procurement files in order to comply with the Government Contracting Policy.

Did the department evaluate supplier bids using the same criteria?

Summary

The Complaint

A supplier filed a complaint about a Department's solicitation for professional services. The supplier claimed the Department did not assess its bid in accordance with the terms of the solicitation. The supplier also claimed the Department did not apply the same criteria and standards to all bids.

Findings

The Procurement Ombudsman found the evaluation team's assessment was supported by sufficient written evidence and was not unreasonable. As a result, the Procurement Ombudsman determined the Department had assessed the supplier's bid in accordance with the terms of the solicitation.

Regarding the claim that the Department did not assess all bids using the same criteria and standards, the Procurement Ombudsman reviewed evaluation worksheets and noted there was uniformity in the evaluators' comments. As a result, the Procurement Ombudsman concluded all bids had been assessed against the same criteria.

Mandatory bid evaluation criteria not identified or applied appropriately: Supplier compensated

Summary

The Complaint

A supplier filed a complaint claiming a solicitation did not identify which evaluation criteria were mandatory so there was no basis for the Department to judge whether a supplier met the criteria or not. The supplier further claimed that its proposal was evaluated against a mandatory requirement which the supplier believed to be a rated requirement. The Department evaluated bids against evaluation criteria it said were mandatory, and deemed the supplier's bid non-compliant.

Background

A Department required professional services and used a list of pre-qualified suppliers to select a contractor. When using this list of pre-qualified suppliers, federal organizations were required to give the lowest-priced supplier the "right of first refusal" for the work. If the lowest-priced supplier had a resource that could meet the requirement, it was awarded the contract. If the lowest-priced supplier was unable to meet the requirement, the requirement was sent to the next lowest-priced supplier, and so on, until a supplier was found to meet the requirement. While using this list of pre-qualified suppliers, federal organizations were allowed to use mandatory (that is: pass or fail) requirements in the solicitation documents, but they were not allowed to use rated (that is: score-based) requirements.

Findings

After a review of the information, the Procurement Ombudsman concluded the solicitation document used by the Department did not contain a clause labelled "Mandatory Requirements", nor did it define any mandatory requirements.

Also, the Department used the word "extensive" to describe a knowledge requirement without defining the word. The Procurement Ombudsman considered this requirement to be subjective and the Department could not evaluate the bid as "pass or fail", a necessity for a mandatory requirement. Nonetheless, the Department had applied the requirement as a mandatory requirement and disqualified the supplier on that basis. The Procurement Ombudsman determined the Department had not been transparent about the criteria used in evaluating the supplier's bid. In addition, a review of how the Department evaluated all bids revealed variations.

In fact, the Procurement Ombudsman determined the supplier should not have been invited to bid, as the contract should have been awarded to another supplier (that is: the supplier offering a lower price on the list of pre-qualified suppliers, who was also disqualified by the Department based on the inappropriate application of a mandatory requirement). As a result, the Procurement Ombudsman recommended the Department pay compensation to the supplier who submitted the complaint equal to the cost of submitting the bid, and the Department agreed.

Did solicitation documents include contradictory wording?

Summary

The Complaint

A supplier filed a complaint claiming a bid solicitation for professional services contained contradictory wording in mandatory evaluation criteria regarding the duration and number of hours that the services were to be provided. It also claimed the resulting contract was not awarded to the supplier with the lowest-priced compliant bid, which is how the solicitation document said it would be done.

Findings

After a review of the information, the Procurement Ombudsman concluded there was no contradictory wording in the solicitation document concerning the duration of the services. However, the Procurement Ombudsman noted that using a mandatory evaluation criterion which states the services must be provided over an "estimated" number of hours could lead to more than one interpretation. The Procurement Ombudsman recommended the Department review the wording used in future solicitations to ensure criteria are clearly written.

With respect to the claim that the contract was not awarded to the supplier with the lowest-priced compliant bid, the Procurement Ombudsman found this was not the case and the contract was awarded in accordance with the terms of the solicitation.

Was there a conflict of interest or unfair advantage in the award of the contract?

Summary

The Complaint

A supplier filed a complaint about a conflict of interest in a procurement process due to the relationship between the Department and the organization that was awarded the contract. The supplier stated the winning bidder, a not-for-profit organization: was founded by the Department; was physically located at the same address as the Department; and had a representative of the Department sat on the Board of Directors and Executive Committee of the organization.

Findings

The Procurement Ombudsman's review of the information concluded the organization was not solely founded by the Department.

Although the organization was physically located at the Department's premises, the proximity of businesses working together does not automatically shift from a perceived into a real conflict of interest without evidence of inappropriate conduct, such as access to information not available to other bidders. The supplier did not provide the Procurement Ombudsman with any such evidence.

The Procurement Ombudsman noted the departmental representative's participation on the Board of Directors of the organization was in accordance with the provisions of the Financial Administration Act and, in the absence of other evidence indicating inappropriate conduct, this situation did not result in a conflict of interest. Nonetheless, the Procurement Ombudsman was of the view that the situation raised the perception of conflict of interest or the possibility of unfair advantage and recommended the Department develop risk mitigation strategies.

Although not part of the supplier's complaint, the Procurement Ombudsman noted some of the evaluation criteria used to evaluate bids were subjective and there was no detailed guidance to the evaluation team as to how to award points for each criteria. The Procurement Ombudsman was of the view the assessment tools used during the evaluation process lacked precision and could have been strengthened, however those weaknesses were not significant enough to conclude the process was unfair.

The Procurement Ombudsman also found the Department did not adequately document the process used to evaluate bids. As a result, the Procurement Ombudsman recommended the Department implement measures to: ensure: detailed information would be included on file; procurement files be clearly documented at the time decisions are made; and files contain the necessary information to demonstrate how decisions were made.

Change in procurement strategy reasonable but evaluation criterion questioned

Summary

The Complaint

A supplier filed a complaint about a Department that had a requirement for professional services and invited bids from suppliers using the Temporary Help Services (THS) Standing Offer as the contracting tool. Right after the supplier submitted its bid, the Department cancelled the process. A few days later, the Department invited suppliers to bid on an almost identical requirement for professional services using a different contracting tool, Professional Services (PS) Online.

The supplier claimed the Department cancelled the THS process because the person the supplier proposed to do the work met the requirement of the Statement of Work which, in its view, the Department did not expect. The supplier believed the Department sought to find a loophole under the PS Online contracting tool to declare the supplier's bid non-complaint by using a mandatory evaluation criteria so they could award the contract to someone who already had experience working with the Department.

Findings

After a review of the information, the Procurement Ombudsman concluded the Department's decision to change from using THS to PS Online had been contemplated prior to the submission of the supplier's bid under the THS process. The Procurement Ombudsman therefore determined the supplier's claim that the THS process was cancelled because its proposed person met the criteria was unfounded. The Procurement Ombudsman also concluded the mandatory evaluation criteria used to assess the PS Online bids was based on the Department's operational need and the supplier's bid had been properly disqualified for not meeting the criteria.

The Procurement Ombudsman noted that another issue, while not part of the supplier's complaint, warranted comment: a mandatory evaluation criterion requiring 35 years experience in a relevant field of work. In the Procurement Ombudsman's view, this requirement was onerous and limited the openness of the process. As a result, the Ombudsman recommended the Department structure its procurements to provide access to as many potential suppliers as possible.

Further, the Ombudsman noted files were poorly documented in relation to the procurement process and recommended the Department undertake measures to ensure its procurement files clearly document the basis for any decisions made.

Bid evaluation criteria did not prevent supplier from bidding but answers to questions incomplete

Summary

The Complaint

A supplier filed a complaint about a bid solicitation for consulting services, claiming a mandatory evaluation criterion requiring one of the people proposed to do the work had to possess a specific professional designation was unjustified and arbitrary. The supplier claimed that, in response to its request to have the Department either justify the need for the criterion or to have it removed, the Department refused to remove it. The supplier further claimed the Department had stated the professional designation was required by policy. As a result, the supplier claimed to have been prevented from submitting a bid.

Findings

As a buyer of goods and services, a Department is entitled to establish its own criteria provided they are based on legitimate operational requirements. The Department provided the Procurement Ombudsman with reasonable rationale to support its decision to require one of the people proposed to do the work have the specific professional designation. However, the Procurement Ombudsman noted the Department's files did not contain adequate documentation to explain the need for the mandatory evaluation criterion.

As for whether the mandatory evaluation criteria prevented the supplier from bidding, the Procurement Ombudsman determined the criterion itself did not prevent the supplier from submitting a bid. It was open to the supplier to make alternative business arrangements, such as partnering with another supplier or person that held the specific designation.

The Procurement Ombudsman noted the complaint raised the importance of departments explaining the use of mandatory criteria when questioned during the solicitation process. In this regard, the Procurement Ombudsman noted that making reference to a policy was not an adequate answer to the supplier's question. As such, the Ombudsman recommended that, in the future, the Department respond to suppliers' questions in a complete and detailed manner.

Mandatory evaluation bid criteria based on operational requirements but the rationale not communicated

Summary

The Complaint

A complaint was filed about a bid solicitation which required suppliers to have a specified minimum number of staff to be considered for the contract. The supplier complained this was unjustified, prejudicial and prevented it from submitting a bid.

Findings

As a buyer of goods and services, a Department is entitled to establish its own criteria provided they are based on legitimate operational requirements. The Department provided the Procurement Ombudsman with reasonable rationale to support its decision to require one of the people proposed to do the work have the specific professional designation. However, the Procurement Ombudsman noted the Department's files did not contain adequate documentation to explain the need for the mandatory evaluation criterion.

As for whether the mandatory evaluation criteria prevented the supplier from bidding, the Procurement Ombudsman determined the criterion itself did not prevent the supplier from submitting a bid. It was open to the supplier to make alternative business arrangements, such as partnering with another supplier or person that held the specific designation.

The Procurement Ombudsman noted the complaint raised the importance of departments explaining the use of mandatory criteria when questioned during the solicitation process. In this regard, the Procurement Ombudsman noted that making reference to a policy was not an adequate answer to the supplier's question. As such, the Ombudsman recommended that, in the future, the Department respond to suppliers' questions in a complete and detailed manner.

Department did not act in bad faith but need for better communication

Summary

The Complaint

A supplier complained it was unable to submit a bid for specialized services because the Department required bids to be submitted in less than one business day for what the supplier considered to be a complex requirement. The supplier also claimed the Statement of Work was unclear, inconsistent and incomplete, and that the Department did not respond to its request for clarification. Further, the supplier alleged the Department did not respond to its request for additional information, specifically: a list of the suppliers invited to bid; the lack of related experience of some suppliers invited; and details of the awarded contracts.

During the course of the review, the supplier further alleged the Department had engaged in contract splitting (defined by the Treasury Board Contracting Policy as "the practice of unnecessarily dividing an aggregate requirement into a number of smaller contracts, thereby avoiding controls on the duration of assignments or contract approval authorities"). The supplier also claimed that the Department awarded the contracts to a supplier with a history of poor performance.

Findings

With respect to the supplier's claim that the bid response time was too short, the Department stated that any supplier in that particular business would consider the requirement to be "routine", and a short response time is not unusual for the type of requirement. The Department further stated all the suppliers invited to provide a bid were qualified, experienced suppliers. The Procurement Ombudsman concluded that, while the bidding period was short and may have caused the supplier some inconvenience, in this circumstance it was not done in bad faith and did not have a material effect on fairness, openness or transparency.

Regarding the claim that the Statement of Work was unclear, inconsistent and incomplete, the Procurement Ombudsman found that, while the documents could have been improved, they did not have the effect of preventing a supplier from bidding.

With respect to the claim that the Department did not respond to the supplier's request for clarification, after involvement by the Office of the Procurement Ombudsman (OPO), the Department was open to comments and suggestions made by the supplier. The Procurement Ombudsman concluded the supplier was within its rights to seek clarification and the Department had a duty to respond.

When OPO contacted the Department regarding the claim that it had not provided the supplier with the list of other suppliers invited to bid or details of the awarded contracts, the Department acknowledged it should have provided the list after the contract was awarded. As a result, the Procurement Ombudsman found this claim to be valid.

Another claim was the Department did not provide the supplier with information on the previous experience of the other potential suppliers, contending some of the suppliers invited did not have experience in specialized services. The Procurement Ombudsman noted that, while the Department stated during the review that all suppliers invited to bid had experience in the specialized services, experience was not a factor in the evaluation of bids or for the award of the contract. Therefore, the Procurement Ombudsman considered the issue to be inapplicable.

As for the claim the Department may have engaged in contract splitting, findings indicated the Department combined separate requirements when it could and asked suppliers to submit bids. The Procurement Ombudsman concluded the Department was not contract splitting as defined by the Treasury Board Contracting Policy.

With respect to the supplier's claim the Department awarded the contracts to a supplier which had a history of poor performance, the Procurement Ombudsman considered the issue to be inapplicable, as it can only be assessed post contract award. Therefore, the Procurement Ombudsman did not comment on the merit of the issue.

In conclusion, while the Department did not act in bad faith, the Procurement Ombudsman recommended the Department respond to questions raised by potential suppliers in a more respectful, timely and detailed manner. Enhanced communication should result in improvements to fairness, openness and transparency.

Despite repeated attempts to obtain the documents necessary for the conduct of this review, including a request to the Deputy Head of the organization, the department chose to provide limited material in the form of redacted documents which the department stated were " within the parameters of the Privacy Act and the Access to Information Act". This deliberate withholding of the records impeded the Ombudsman's ability to execute his mandate as required by Section 12(1) of the Regulations. This represents the first complaint review where the information made available by the department was insufficient to enable the Ombudsman to assess the extent to which the fairness, openness or transparency of the department's procurement process was prejudiced as required by the Regulations.

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