Review of complaint: Acquisition of Project Evaluation Services by the Department of Foreign Affairs, Trade and Development

Analysis of issue 1

21. OPO recognizes the similarities between the first and second solicitations: (1) the requirement, that is, an evaluation of the CUTIS project, was the same; (2) DFATD used the same solicitation number for both RFPs; and, (3) the Complainant proposed the same lead resource in each of its proposals. However, despite the close link between the two RFPs, OPO’s review can only cover the contract awarded through the second solicitation process, that is, the March 2021 RFP. As Section 7 of the Procurement Ombudsman Regulations requires a contract to have been awarded before the Procurement Ombudsman can initiate a review of the complaint, this review focusses solely on the second solicitation where a contract was awarded.

22. During the solicitation period, no supplier questioned the definitions nor sought any type of explanation or clarification regarding this issue. Given the Complainant’s history with DFATD concerning the evaluation of its proposal in response to the first RFP and this particular criterion (M2), the Complainant should have clarified this issue prior to deciding whether it was going to submit a bid in response to, essentially, the same requirement. Jurisprudence from the Canadian International Trade Tribunal, a procurement review body which, among other functions, hears procurement complaints about federal government opportunities covered by trade agreements, states bidders bear the onus to seek clarification of matters considered ambiguous or uncertain and, as a general rule, bidders should not make assumptions or presumptions. By proposing the same lead resource whose experience did not meet this requirement on the first solicitation, and not seeking clarification of the requirement, the complainant risked again being found non-compliant which was ultimately the end result.

23. While there may have been an issue in the first solicitation regarding how mandatory criteria M2.1 was structured and assessed, OPO was unable to review this matter because, as noted above in paragraph 21, a contract was not issued as a result of the first solicitation. OPO considers the additional definitions added to the second solicitation to have been related to the work being requested by DFATD, that is, the evaluation of development projects. There is no indication DFATD compromised its requirement by adding extraneous details in an effort to direct the solicitation away from operational requirements. The additional clarity of having these definitions benefitted both DFATD and potential suppliers. DFATD benefitted by providing suppliers with a more detailed description of the requirements, and evaluators with a more precise manner of evaluating the bids, which should ultimately lead to a winning bidder with the skills required to meet the goals of the contract—the evaluation of the CUTIS project. Suppliers also benefitted from the precision regarding the required services, and were therefore able to better structure their bids and increase their chances of obtaining the contract. OPO does not consider there to be any indication DFATD was attempting to limit the possibility of the Complainant submitting a bid through the addition of these definitions.

Finding: Issue 1

24. In regards to issue 1, DFATD followed the TBCP requirement of giving all parties an equal opportunity to access government business. OPO does not find DFATD structured the solicitation to disqualify the Complainant’s bid.

Analysis of issue 2

31. The Complainant alleged DFATD did not create an open, fair and transparent solicitation process because the RFP was not posted on GETS. According to information contained in e-mails provided as part of DFATD’s submission, the RFP was made available to suppliers via a number of alternative approaches.

32. DFATD received 4 bids and received questions from 2 other suppliers which did not end up submitting a bid. While this second solicitation process was more successful than the first solicitation process, which appeared to only garner a single bid, DFATD’s approach did not meet the requirements of TBCP 10.7.2 which states, when “…a combination of solicitation processes is used together, it is essential that they:

1. commence and close on the same dates;
2. provide potential suppliers with the same information; and
3. impose identical obligations on these suppliers.”

33. DFATD used several different advertising platforms to notify potential suppliers of the opportunity:

• On March 26, 2021, it advertised in the public press, the Kyiv Post, with a link to the Google Docs version of the RFP and a due date for the receipt of bids of April 25, 2021.
• It solicited by electronic means on the Embassy of Canada in Ukraine Facebook and Twitter pages. DFATD posted on each platform 3 times—March 29, April 15 and April 20. Each posting provided a link to the Google Docs version of the RFP with a due date of April 25, until the April 20 postings when it was changed to May 2.
• It used a source list to send the link to the Google Docs version of the RFP to 5 other organizations for them to disseminate to other suppliers. OPO notes there was no explanation as to how or why those 5 were chosen. There is also no record of what 4 of these 5 organizations did with the link nor which suppliers any of the 5 contacted:
  • Julianmurrayconsulting - received the link from DFATD on March 29
  • developmentaid.org - received the link from DFATD on March 29 - it advised DFATD the link to the RFP “…has been published on DevelopmentAid and is immediately available to all the paid members of our platform…”
  • europeanevaluation.org - received the link from DFATD on April 1
  • community.betterevaluation.org - received the link from DFATD on April 1
  • evaleurasia.org - received the link from DFATD on April 1

34. Once the RFP was publicly available, DFATD was asked questions by 4 suppliers. DFATD answered those questions directly to the supplier who asked the question but, because GETS was not used, there was no common location where these questions and answers could be shared with all suppliers or any updates made to the RFP. As an example of not sharing the same information with potential suppliers, on April 20, 2021, DFATD advised 1 supplier it would not extend the due date for the receipt of bids but, 7 hours later, it advised another supplier it would extend the due date. The supplier who was advised an extension would be granted also asked for, and received, copies of all questions and answers to that time. This was initiated by that supplier, as opposed to DFATD, and appears to be the only time a supplier was provided with answers to questions it did not ask. DFATD did update the Google Docs RFP to change the bid closing date, however, unless a supplier checked the link after April 20, it would not necessarily have been aware of the extension.

35. DFATD breached its responsibilities under TBCP section 10.7.2 in that, depending on how suppliers became aware of the CUTIS evaluation requirement, different suppliers were: advised of the requirement on different days; provided different information about the solicitation via the question and answer process; and potentially were unaware of the amended bid closing date. Had GETS been used, although not mandatory, it would have been the common point of contact to ensure all suppliers had access to the same information at the same time.

36. The Complainant also alleged DFATD did not process its bid in a timely manner by: (a) failing to notify the Complainant its bid had been rejected and that DFATD was moving forward with selecting the contract awardee; (b) not answering questions about the bid in a timely manner; (c) avoiding communication with the Complainant regarding its debriefing; and (d) delaying all requests for debriefs and for a fuller explanation of the evaluation.

37. The RFP contained terms and conditions governing some of the allegations related to this issue:

• Section 7.4: A proposal must remain valid and open for acceptance for a period of ninety (90) days after the closing date of the RFP, or any extension to this period.
• Section 16.1: After completing negotiations and signing the contract with the successful Bidder, DFATD will communicate the results of the evaluation to unsuccessful Bidders.

38. Given the inclusion of section 7.4 in the RFP, all bidders would have been aware of the 90-day period. The Complainant initially contacted DFATD regarding its evaluation on July 27, 2021, or what was “Day 87” from the due date for the receipt of bids. On July 7, 2021, DFATD had completed its evaluation and had contacted the highest-rated bidder, to begin contract negotiations. In accordance with section 16.1 of the RFP, all bidders should have been aware that unsuccessful bidders would only be advised of the evaluation results once the contract was negotiated and awarded to the successful bidder.

39. Given sections 7.4 and 16.1 of the RFP, DFATD was not required to advise the unsuccessful bidders that it was moving forward to negotiate a contract with the successful bidder or to communicate the evaluation results while it was conducting negotiations with the successful bidder.

40. As shown in the chronology, below, with exception to the Complainant’s last request for information, which was made 4 days before it submitted its complaint to OPO, each time the Complainant contacted DFATD about the evaluation of its bid, DFATD responded to the Complainant within a 1 to 2 day period.

• On July 27 and 28, 2021, the Complainant asked DFATD for an update, noting the amount of time that had passed since it had submitted its bid
• On July 29, 2021, DFATD advised the Complainant its proposed Team Leader had not met mandatory criterion M2.1. That same day, DFATD also advised the other 2 unsuccessful bidders of their results.
• On July 29, 2021, the Complainant requested a debriefing
• On July 30, 2021, the Complainant asked for a response to its request for a debriefing
• On July 30, 2021, DFATD provided the Complainant with information about the contract to be awarded, but nothing further about the actual evaluation of the Complainant’s bid
• On July 30, 2021, the Complainant asked for more information
• On August 3, 2021, the Complainant submitted its complaint to OPO, which was considered received on August 4, 2021 and filed on August 6, 2021

41. The records indicate that DFATD was answering the Complainant’s questions in a timely manner. DFATD was not avoiding communication with the Complainant regarding its debriefing, nor was it delaying requests for a fuller explanation of the evaluation of the Complainant’s bid. OPO will, however, address the quality of the information DFATD provided to the Complainant under Issue 4 below.

42. The Complainant also alleged DFATD breached the “Contract A” obligations arising out of the CUTIS RFP because those instructions and terms of reference did not contain any language or an explicit disclaimer, saying that no contractual obligations arise from the RFP or that DFATD may reject any and all bids, reissue a new RFP or end this RFP process at any time, at its sole discretion.

43. OPO notes the RFP included the following clauses:

6.2 Proposals, or any withdrawal, substitution and modification, will only be accepted by DFATD if they are received at the address indicated on the cover page of this RFP by the closing date and time indicated on the cover page of this RFP.

13.1 DFATD reserves the right to:

1. reject any or all proposals received in response to the RFP;
2. enter into negotiations with Bidders on any or all aspects of their proposals;
3. accept any proposal in whole or in part without negotiations;
4. cancel the RFP at any time;
5. reissue the RFP;
6. if no compliant proposals are received and the requirement is not substantially modified, reissue the RFP by inviting only the Bidders who responded initially to resubmit proposals within a period designated by DFATD; and
7. negotiate with the sole compliant Bidder to ensure best value to DFATD

44. OPO considers RFP section 13 to have created reserved rights for DFATD which the Complainant alleges DFATD did not have, that is, DFATD could reject any and all proposals, cancel the RFP and reissue a new RFP. In a “Contract A - Contract B” dynamic, however, the existence of such reserved rights is not sufficient on its own to allow DFATD to exercise these reserved rights in a way which would be considered inconsistent with the common law duty of fairness.

45. Therefore, OPO must determine if the common law “Contract A” duties have been created between DFATD and the Complainant. It is important to note that, as established by the Supreme Court of Canada in MJB Enterprises Ltd. V. Defence Construction (1951) Ltd.^{footnote 1} an Invitation to Tender, that is, in this case the March 2021 RFP, does not always automatically result in “Contract A”; it depends on the intent of the parties.

46. The key indicators of the purchaser’s, in this case DFATD's, intention to create a “Contract A” relationship with each compliant bidder are:

• requiring that bidders be irrevocably bound to their tenders, often for a predetermined amount of time; and
• other factors demonstrating the binding nature of the relationship, such as bid security, a bid bond or letter of credit which would be forfeited if the bidder is selected, but fails to honour its bid.

OPO finds Article 7.4 of the RFP, which required the proposal be open for acceptance for a period of 90 days, created at least one indicium of DFATD’s intention to create a binding relationship with bidders.

47. However, it must also be noted that only those bidders who are compliant with the mandatory criteria are owed these common law duties. Accordingly, unless OPO can conclusively state the Complainant submitted a compliant bid, which it cannot, the Complainant cannot rely on “Contract A” common law duties as part of its claim against DFATD.

48. That being said, DFATD should carefully consider its intentions when drafting solicitation documents to avoid creating “Contract A” obligations in situations when this is not the desired outcome. It is unclear whether DFATD intended to create binding “Contract A” obligations with compliant bidders, but the inclusion of terms such as Article 7.4 (excerpted below) can create unnecessary confusion and lead to a finding of intent.

7.4 A proposal must remain valid and open for acceptance for a period of ninety (90) days after the closing date of the RFP, or any extension to this period.

Finding: Issue 2

49. DFATD’s methodology of advertising the requirement using Twitter, Google Docs, Facebook and secondary-conduit organizations instead of GETS, inhibited the ability to ensure all suppliers were treated equally. Some suppliers were provided information through the question and answer period while others were not, and not all bidders were advised of the extension to the due date for the receipt of bids. A better process would have been for DFATD to combine its strategy of posting on various social media platforms with a GETS posting, or some other common access point, to maximize visibility and coordination of the solicitation. DFATD would then have been able to contact all interested suppliers regarding any updates or changes to the RFP.

50. DFATD should improve the openness of its solicitation process to meet applicable Treasury Board requirements to ensure bidders are treated fairly. By using a combination of solicitation processes that did not commence and close on the same dates or provide potential suppliers with the same information, DFATD failed to ensure bidders were treated fairly. DFATD’s actions in this regard had an overall negative impact on the fairness of the process for the Complainant and for all other bidders and prospective bidders.

51. Lastly, DFATD did not owe the Complainant implied common law duties created by “Contract A” as OPO could not conclusively find that the Complainant submitted a compliant bid. That being said, DFATD should carefully consider its intentions when drafting solicitation documents to avoid creating Contract A obligations in situations where this is not the desired outcome.

Analysis of Issue 3

59. OPO must consider two elements related to this issue:

• What experience did mandatory criterion M2.1 require, and
• if DFATD properly considered the contents of the Complainant’s proposal.

Finding: Issue 3

76. Given the first solicitation resulted in only one evaluated bid, which DFATD found non-compliant, and given the ambiguities that existed with a mandatory criterion on the first solicitation, DFATD should have included the Chief Evaluator or the entire Selection Team in the mandatory criteria compliance check process for the second solicitation. By not keeping sufficient records to support decisions taken, OPO cannot definitively conclude whether DFATD rightfully determined the Complainant’s bid to be non-compliant. However, the facts equally do not justify a finding that the Complainant’s bid should have been determined to be compliant. Therefore the finding is that the procedures followed by DFATD produced an unnecessary uncertainty around the result.

Analysis of Issue 4

84. In accordance with the TBCP, while debriefings should be provided to unsuccessful bidders upon request, there is no mandatory requirement for departments to do so. In this instance, the inclusion of language in the RFP inviting bidders to request a debriefing further raised expectations that a debriefing would, on request, be provided about “…the strengths and weaknesses of their own proposal.”

85. DFATD did not provide a debriefing on the strengths and weaknesses of the Complainant’s proposal because the proposal was not evaluated but, instead, sent two e-mails to the Complainant on July 29 and 30, 2021:

The first re-stated mandatory criterion M2 with a checkmark under the words “Not Met” for the proposed Team Leader, and under “Met” for the proposed Team Member.

Excerpt from DFATD evaluation of Complainant’s bid

M2. Experience	Met	Not met
1. The proposed Evaluation Team Leader must be an Evaluator of international developments projects at a senior level.
2. The proposed Team Member must have experience and expertise in providing strategic analysis on trade and investment promotion in Ukraine.

• Consequently, your proposal was declared non-compliant and is therefore rejected.
• Consequently, your proposal was declared non-compliant and is therefore rejected. Should you require further information regarding the evaluation of your proposal you may submit a written request to: kyiv-da@international.gc.ca

The second provided information about the contract and the contract awardee, but nothing about the Complainant’s proposal.

86. The main function of a debriefing is to provide transparency and an explanation as to the reasons for not selecting an unsuccessful bid. It is then hoped the unsuccessful bidder will take this information and be better positioned to be successful in future competitive opportunities. The debriefing DFATD provided to the Complainant did not accomplish this. DFATD provided the Complainant with no useable information about why its proposal was disqualified.

87. In addition, DFATD’s evaluation results of the Complainant’s proposal have been portrayed differently in different contexts:

• To the Complainant, DFATD indicated that only 1 of the 2 mandatory requirements of M2 was not met, and provided the checkmarks noted above regarding the proposed Team Leader (Not Met) and proposed Team Member (Met)
• In its internal RFP Assessment report, DFATD wrote:

  One bid was screened out as failing to meet both of the two mandatory requirements on experience.(emphasis by OPO)

• To OPO, DFATD stated:

  …This assessment process concluded that the Complainant’s bid (File number …) did not meet the second mandatory experience criteria (M2).

  In particular, criterion M2.1 stipulated that “The proposed Evaluation Team Leader must be an Evaluator of international development projects at senior level.” The evaluation of Complainant’s technical proposal determined that the Complainant did not demonstrate that the proposed Evaluation Team Leader met the requirements for criterion M2.1

88. In short, due to inconsistencies in the DFATD documentation, OPO does not know if one, or both, of the Complainant’s proposed resources were disqualified for failing to meet their respective parts of mandatory criterion M2. If both were deemed to have failed, then DFATD has misrepresented the evaluation results to both the Complainant and OPO. If only the proposed Team Leader failed, then the DFATD internal report is incorrect.

89. Based on what DFATD provided to the Complainant on July 29, 2021, and in its internal RFP Assessment report, it appears the DFATD CO, prior to deciding not to forward the Complainant’s bid to the Selection Team, had also reviewed the Complainant’s proposed Team Member (M2.2) even though the proposed Team Leader (M2.1) had already been disqualified.

Finding: Issue 4

90. DFATD was not required by the TBCP or the terms of the RFP to provide a detailed debrief on the determination of non-compliance of the Complainant’s bid. That being said, DFATD, through its own express language in the RFP and subsequent communications with the Complainant, created an expectation that further information regarding the evaluation of the proposal would be provided upon request. By not providing detailed information to the Complainant on why its proposal was deemed non-compliant, the Complainant’s legitimate questions were left unanswered.

91. DFATD must, at a minimum, maintain accurate and consistent records detailing why bidders are found non-compliant and should, as a general practice, provide bidders more detailed explanations when determinations of non-compliance are made to enhance understanding, demonstrate a commitment to fairness and potentially avoid complaints.