Review of a complaint: Acquisition of Sexual Misconduct Response Training Services by the Department of National Defence New
March 2023
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The complaint
1. On September 15, 2022, the Office of the Procurement Ombudsman (OPO) received a written complaint from a supplier (the Complainant) regarding a contract awarded by the Department of National Defence (DND). The contract was for Sexual Misconduct Response training services for the Canadian Defence Academy (CDA). The contract was awarded on September 9, 2022, and was valued at $46,151.00 (taxes excluded).
2. The Complainant contacted OPO stating it believed the winning bidder was non-compliant based on publicly available documents and as a result should not have been awarded the contract.
3. On September 21, 2022, the Complainant submitted an amendment to its original complaint to OPO stating that it believed “[t]he vagueness of the language and the seemingly contradictory information (language vs safety plan) made this Request for Proposal (RFP) impossible to determine the best way to meet the mandatory criteria (curriculum, certifications), and also provide for adequate safety.”
4. This complaint raises the following issues:
- Did DND award the contract to a non-compliant bidder?
- Were the mandatory evaluation criteria unclear so as to make it difficult for a bidder to submit a compliant bid?
5. On September 22, 2022, OPO confirmed the complaint met the requirements of the Procurement Ombudsman Regulations (the Regulations) and it was considered filed.
Mandate
6. This review of complaint was conducted under the authority of paragraph 22.1(3)(b) of the Department of Public Works and Government Services Act and sections 7 to 14 of the Regulations.
7. Pursuant to subsection 9(2) of the Regulations, the Procurement Ombudsman requested DND provide all departmental records associated with the procurement and the award of the contract in question, as well as DND’s procurement policies and guidelines in effect at the time of the solicitation. The Procurement Ombudsman also requested the Complainant provide additional information not submitted as part of the complaint.
8. The chronology of events and the findings in this report are based on the records provided by the Complainant and DND, as well as relevant publicly available information. The failure by either the Complainant or DND to disclose any relevant records or information could impact the findings of this report.
Chronology of events
9. On July 20, 2022, DND sent Request for Quotation (RFQ) no. W4938-22-075S via email to 3 suppliers, one of which was the Complainant. Bidders were required to meet 5 mandatory evaluation criteria and submit a price for 1 sexual misconduct response training session to be held in Kingston, Ontario, from October 1 to 15, 2022. The requirement also included 5 optional training sessions to be held at various locations. The deadline for submitting proposals was August 5, 2022.
10. On July 22, 2022, one supplier emailed the Contracting Authority (CA) with questions pertaining to the logistics of the training sessions and to obtain guidance on the procurement process as it was new to the federal government’s solicitation process.
11. On July 25, 2022, the CA provided the questions and answers to all 3 suppliers via email.
12. On July 29, 2022, the same supplier who asked questions on July 22, 2022 emailed the CA with a new question pertaining to mandatory evaluation criterion M2 which required that “[c]ontractor’s Group Facilitator and Group Support Persons must be fully bilingual in both Official Languages (English and French)”. The supplier asked if it could propose a French translator in addition to an experienced English-speaking facilitator since finding a bilingual resource was proving to be challenging.
13. On July 30, 2022, the CA sent amendment no. 1 to RFQ no. W4938-22-075S to all 3 suppliers via email, which modified mandatory evaluation criterion M2 to include the words “or the contractor must provide a translator” at the end of the criterion.
14. Later that day, the Complainant emailed the CA asking if bidders were “required to provide proof of entire curriculum in French, or is attesting that [it had] all materials translated adequate?”
15. On August 2, 2022, DND responded to the Complainant that “[a]ttesting that you have materials translated will be sufficient.”
16. Later that same day, the Complainant submitted its proposal.
17. On August 5, 2022, another supplier submitted its proposal.
18. Between the period of August 17 and 22, 2022, DND completed its evaluation of the 2 proposals received.
19. On August 18, 2022, 1 of the 3 DND evaluators sent an email to the CA asking if all the documents submitted by the Complainant had been provided to them as they could not locate the course curriculum. The CA replied that all documents received from the Complainant had been provided to the evaluators and directed them to conduct the evaluation based on those documents.
20. On September 9, 2022, the CA sent a regret letter to the Complainant stating that its proposal was found to be non-compliant as it had failed to provide a copy of the course curriculum as required in mandatory evaluation criteria M1, and that a contract would be awarded to the other bidder for the amount of $46,151.00 (excluding taxes).
21. On September 11, 2022, the Complainant emailed the CA to request a formal debrief of the bid rejection and to share some concerns with regard to its proposal being deemed non-compliant.
22. On September 15, 2022, having not received a response from the CA, the Complainant submitted a complaint to OPO.
23. On October 4, 2022, OPO advised DND and the Complainant that it launched a review of the complaint.
Analysis of issues and findings
Issue 1—Did the Department of National Defence award the contract to a non-compliant bidder?
24. The Complainant stated:
“On 9 September 2022, we [Complainant’s company] received notification that the intent was to award the contract to [winning bidder] who provided the lowest cost compliant proposal […]. Based on publicly available documents, we believe that [winning bidder] was non-compliant.
Listed among the Mandatory Criteria is M[3]—The Contractor’s Group Facilitator resource’s résumé must be provided, that includes professional certifications and at minimum one year experience in delivery of these types of training sessions.
[Winning bidder] began delivering training on [military sexual trauma] response formally in March 2022.”
25. The Department’s response to OPO:
“After reception of the bids, a thorough bid evaluation was undertaken by the CDA Professional Development bid evaluation team that included the Technical Authority and two additional team member[s] from the directorate, The evaluation was conducted independently by all three evaluators […]
[…] the bid submission from [the winning bidder] was found to be technically compliant on all mandatory criteria and, as such, was awarded the contract on September 9, 2022.
[…]
The winning bid […] was comprised of over 200 pages that included the résumés of all proposed resources. Furthermore, the résumés outlined technical experience and expertise that exceeded the minimum requirements set out in the mandatory criteria.”
Analysis—Issue 1
26. On May 13, 2021, Treasury Board’s Directive on the Management of Procurement (DMP), which replaced the Treasury Board Contracting Policy, came into effect and was applicable at the time of this procurement. The DMP states the following regarding evaluation criteria during the solicitation and bid evaluation process:
4.5 Contracting Authorities are responsible for the following:
[…]
4.5.7 designing and conducting the bid evaluation process, financial assessment and due diligence.
27. The DND Procurement Administration Manual (PAM) states under section 3.3.10.7 evaluation process that:
“The CA is responsible to:
- Ensure that the [technical authority (TA)] evaluates all bids received against the requirement and any evaluation criteria that were provided in the RFQ/RFP […]
- document the reason in the file if a bid is deemed to be technically non-compliant;
- evaluate all quotes deemed responsive by the TA to determine the winning bidder;
- notify the unsuccessful bidders …
28. Section 3.5.3.2—Classifications of Evaluation Criteria of the PAM states:
{…} a) Mandatory Criteria
Mandatory criteria are evaluated on a simple pass/fail basis. The bid solicitation document must clearly indicate that failure to meet any of the mandatory criteria will render the bid non-compliant and that the bid will be given no further consideration. […]
29. Section 4.1 Evaluation Procedures of the RFQ states:
- a) Bids will be assessed in accordance with the entire requirement of the bid solicitation including the technical and financial evaluation criteria.
- b) An evaluation team composed of representatives of Canada will evaluate the bids.
30. Section 4.2 Basis of Selection of the RFQ states:
“A bid must comply with the requirements of the bid solicitation and meet all mandatory technical evaluation criteria to be declared responsive. The responsive bid with the lowest evaluated price will be recommended for award of a contract.”
31. In its July 2017 decision in Valcom Consulting Group Inc. v. Department of National Defence PR – 2016 – 056, the Canadian International Trade Tribunal (CITT) emphasized that the evaluation of mandatory criteria is an issue of strict compliance. “The standard for evaluating bids against mandatory criteria is not one of a balance of probabilities. […] [B]ids must be evaluated thoroughly and strictly for compliance. It is not enough that a bid ‘may have been’ compliant or was ‘more likely than not’ compliant. A bid is either compliant or it is not.”
32. In its September 2014 decision in CAE Inc. v. Public Works and Government Services PR – 2014 – 007, the CITT stated that:
“[…] the Tribunal has accorded a large measure of deference to evaluators in their evaluation of proposals. It has stated that a government entity’s determination will be considered reasonable if it is supported by a tenable explanation, regardless of whether the Tribunal itself finds that explanation compelling.
Conversely, the Tribunal has been clear that it will find an evaluation to be unreasonable and will substitute its judgment for that of the evaluators when the evaluators have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way.”
33. In assessing whether the winning bidder’s proposal was evaluated in accordance with mandatory evaluation criterion M3, the Procurement Ombudsman is bound by Section 12(2) of the Regulations which states:
“The Procurement Ombudsman shall not substitute his or her opinion for the judgment of the persons involved in the acquisition process for the contract in relation to the assessment of any bid, unless there is insufficient written evidence to support that assessment or the assessment is unreasonable.”
34. Sufficient written evidence was provided to support the assessment of the mandatory criteria; however, the reasonableness of the Department’s assessment of the winning bidder’s bid required additional analysis.
Mandatory Requirements
35. The RFQ included 5 mandatory requirements that a bidder had to meet for their bid to be deemed responsive, M1, M2, M3, M4 and M6Note de bas de page1.
36. Mandatory evaluation criterion M1 required bidders to provide a copy of Sexual Misconduct curriculum (in both Official Languages (English and French)) and evidence that the training had been supported by clinicians who are experts in the field of military sexual misconduct, sexual misconduct and /or sexual misconduct survivor support. It went on to say that a recognized expert could be an academic professional, medical expert, and/or an equivalent expertise gained through experience in the field as agreed upon by the Contractor and the TA.
37. Mandatory evaluation criterion M2 required bidders to propose a Group Facilitator and Group Support Persons that were fully bilingual in both Official Languages (English and French) or provide a translator.
38. Mandatory evaluation criterion M3 focused on the experience of the bidder’s proposed Group Facilitator. It required a copy of the proposed resource’s résumé including professional certifications, and required the bidder to demonstrate that the proposed resource had at least one year experience in delivery of these types of training sessions.
39. Mandatory evaluation criterion M4 focused on the experience of the bidder’s proposed Group Support person. It required a copy of the proposed resource’s résumé including professional certification(s), and required the bidder to demonstrate that the proposed resource had a minimum of 6 months experience in providing one-on-one professional support.
40. Mandatory criterion M6 required a copy of the bidder’s action plan detailing how the Training Delivery team would provide support to participant(s) that may experience an emotional and/or physical response as a result of potentially triggering course content and/or during training delivery.
Department’s Evaluation of the Mandatory Criteria—Winning bidder
41. To determine if the Department awarded the contract to a non-responsive bidder, the Procurement Ombudsman had to determine if the evaluators’ assessment of the mandatory evaluation criteria was unreasonable. To determine if an assessment was unreasonable, the Procurement Ombudsman will consider whether evaluators “have not applied themselves in evaluating a bidder’s proposal, have ignored vital information provided in a bid, have wrongly interpreted the scope of a requirement, have based their evaluation on undisclosed criteria or have otherwise not conducted the evaluation in a procedurally fair way”.
42. OPO reviewed the winning bid to determine whether the evaluators’ assessment of compliance with mandatory evaluation criterion M1 was unreasonable. The winning bidder provided a copy of the Sexual Misconduct curriculum (in both Official Languages (English and French)) and provided evidence that the training was supported by clinicians who were experts in the field of military sexual misconduct, sexual misconduct and/or sexual misconduct survivor support. The evaluators determined mandatory evaluation criterion M1 was met, and the Procurement Ombudsman did not find this assessment to be unreasonable.
43. For mandatory evaluation criterion M2, the evaluators assessed the winning bid to be compliant. The winning bidder proposed Group Facilitators and Group Support Persons that were fully bilingual in both Official Languages (English and French). The Procurement Ombudsman did not find this assessment to be unreasonable.
44. For mandatory evaluation criterion M3, the winning bidder proposed 4 Group Facilitators, 2 English speaking and 2 bilingual. The winning bidder provided copies of the 4 proposed resources’ résumés including professional certifications, and stated that 2 of them had been delivering these types of training sessions for the past year and the other 2 had facilitated sessions for less than the required one year. OPO reviewed all 4 résumés and found no indication that any of the 4 proposed resources had experience delivering military sexual misconduct, sexual misconduct and /or sexual misconduct survivor support training sessions for at least 1 year. While it was clear that 2 of the 4 resources had provided training for at least one year, the subject matter of the training experience had no apparent relevance to military sexual misconduct, sexual misconduct and/or sexual misconduct survivor support training sessions. Since the requirement under M3 required at least one year experience in delivery of these types of training sessions, general training experience on unrelated topics was not applicable to the requirement. Therefore the Procurement Ombudsman found the Department’s assessment that mandatory evaluation criterion M3 was met to be unreasonable.
45. In response to mandatory evaluation criterion M4, the winning bidder provided the Group Support resource’s résumé. The résumé included the professional certification and demonstrated that the proposed resource met the minimum of 6 months experience in providing one-on-one professional support. The Procurement Ombudsman did not find this assessment to be unreasonable.
46. In response to mandatory evaluation criterion M6, the winning bidder included an action plan detailing how the Contractor’s Training Delivery team would provide support to participant(s) that may experience an emotional and/or physical response as a result of potentially triggering course content and/or during training delivery. The Procurement Ombudsman did not find this assessment to be unreasonable.
47. As outlined in the CITT’s ruling in Valcom Consulting Group Inc. v. Department of National Defence PR – 2016 – 056 noted at paragraph 31 above, the standard for evaluating bids against mandatory evaluation criteria is not one of a balance of probabilities, and bids must be evaluated for strict compliance. As mandatory evaluation criterion M3 required the winning bidder to propose a Group Facilitator, provide professional certifications and demonstrate a minimum of one year experience in delivery of these types of training sessions, and this was not done, the Procurement Ombudsman found the evaluators’ assessment that the winning bidder complied with mandatory evaluation criteria M3 to be unreasonable.
48. The DMP considers a bid to be non-compliant if it does not meet all the mandatory requirements listed in the solicitation. In addition, the RFQ incorporated Standard Acquisition Clauses and Conditions (SACC) Standard instructions 2003 (2022-03-29) which state: “Canada will declare non-responsive any bid in respect of which the information requested is incomplete or inaccurate, or in respect of which the information contained in a certification or declaration is found by Canada to be false or misleading in any respect.” This was further reflected in Section 4.2 of the RFQ, which stated “[a] bid must comply with the requirements of the bid solicitation and meet all mandatory technical evaluation criteria to be declared responsive.” As the winning bidder did not meet the requirements of mandatory evaluation criteria M3, it should have been considered non-responsive and given no further consideration.
Department’s Evaluation of the Mandatory Criteria—Complainant
49. The evaluators assessed the Complainant’s bid to be non-compliant. The regret email sent to the Complainant stated: “… your proposal was not found to be compliant with the technical criteria of the RFP, due to no course syllabus being submitted.”
50. To determine if the Complainant’s bid should have been recommended for contract award, OPO had to confirm whether the evaluators’ assessment of non-compliance was unreasonable.
51. In response to mandatory evaluation criterion M1, the Complainant’s bid did not include a copy of the Sexual Misconduct Curriculum. Instead, it referenced training blocks under each of the statement of work requirements that listed the required learning outcomes. The evaluators assessed mandatory evaluation criterion M1 as non-compliant, and the Procurement Ombudsman did not find this assessment to be unreasonable.
52. For mandatory evaluation criterion M2, the Complainant’s bid demonstrated the Contractor’s Group Facilitator and Group Support Persons were bilingual in both Official Languages (English and French). The Procurement Ombudsman did not find this assessment to be unreasonable.
53. For mandatory evaluation criterion M3, the Complainant’s bid provided the proposed Group Facilitator resource’s résumé, included professional certification(s) and demonstrated the minimum one year experience in delivery of these types of training sessions. The Procurement Ombudsman did not find this assessment to be unreasonable.
54. For mandatory evaluation criterion M4, the Complainant’s bid provided the proposed Group Support resource’s résumé, included the professional certification(s) and demonstrated the minimum of 6 months experience in providing one-on-one professional support. The Procurement Ombudsman did not find this assessment to be unreasonable.
55. For mandatory evaluation criterion M6, the Complainant’s bid included an action plan detailing how the Contractor’s Training Delivery team would provide support to participant(s) that may experience an emotional and/or physical response as a result of potentially triggering course content and/or during training delivery. The Procurement Ombudsman did not find this assessment to be unreasonable.
56. Therefore, the Procurement Ombudsman did not find the evaluators’ assessment that the Complainant’s bid was non-compliant to be unreasonable. The bid did not meet the requirements of mandatory evaluation criterion M1, and therefore was properly given no further consideration.
Finding—Issue 1
57. The Procurement Ombudsman found the evaluators’ assessment that the winning bidder complied with mandatory evaluation criteria M3 to be unreasonable. The winning bidder’s bid should have been considered non-responsive and given no further consideration. Therefore, the Department awarded the contract to a non-responsive bidder.
58. In addition, the Procurement Ombudsman found that the evaluators’ assessment of the Complainant’s bid as non-compliant was not unreasonable. Therefore, the Complainant also should not have been awarded the contract.
Issue 2—Were the mandatory evaluation criteria unclear so as to make it difficult for a bidder to submit a compliant bid?
59. The Complainant stated:
“W4938-22-075S has several issues with vague, non-specific language.
“Mandatory requirements:
- M1: Contractor to provide a copy of Sexual Misconduct curriculum (in both Official Languages (English and French)) and evidence that the training has been supported by clinicians who are expert in the field of military sexual misconduct, sexual misconduct and/or sexual misconduct survivor support.
A recognized expert can be academic professionals, medical experts, and/or an equivalent expertise gained through experience in the field as agreed upon by the Contractor and the TA.
Upon asking for further information, we were told that attesting to the curriculum content and bilingualism was adequate. There was no format or specification given for the curriculum, or what would be recognized as support for said curriculum. Our curriculum is co-designed by a Masters of Social Work and clinician, would further support be needed? A curriculum for a one-day program could mean any number of things, and as a mandatory requirement there should have been a format or specific language used. Also, the description of ‘expert’ is also very open and vague.
- M2: Contractor’s Group Facilitator and Group Support Persons must be fully bilingual in both Official Languages (English and French).
There was an amendment that having a bilingual facilitator was adequate, but that is dramatically different than speaking through a translator. Is the translator trauma-support qualified? Who would quality check? Since this was detailed as mandatory to have your materials and facilitator to be bilingual, some may have self-screened, feeling they did not meet this qualification. Having someone providing some on the spot translating is not the same as being able to listen and respond in French. Would the translator be available if someone needed one-on-one support? How would that be safe for that individual given the subject matter?
- M3: The contractor’s Group Facilitator resource’s résumé must be provided, that includes professional certifications and at minimum one year experience in delivery of these types of training sessions.
Specifically military sexual trauma sessions? Group sessions? Sexual assault sessions? The use of vague and non-specific language gives no guidance on what types of sessions.
- M4: The contractor’s Group Support resource’s résumé must be provided. Résumé to include professional certification(s). Proposed resource must have a minimum of 6 months experience in providing one-on-one professional support.
One-on-one support in what? Counseling? Facilitating? Clinical?
- M6: Contractor must include action plan detailing how the Contractor’s Training Delivery team will provide support to participant(s) that may experience an emotional and/or physical response as a result of potentially triggering course content and/or during training delivery.
How will this be actioned if the person needing support is francophone? Having someone providing translating is not the same as having a one-on-one discussion with someone having an emotional response. What is needed in this action plan? How detailed? Who reviews the plan to determine adequacy? How long does the plan need to be in duration? Is the provider responsible to follow-up? How long is the provider expected to provide support? Is the organization also providing mental health support?
The vagueness of the language and the seemingly contradictory information (language vs safety plan) made this RFP impossible to determine the best way to meet the mandatory criteria (curriculum, certifications), and also provide for adequate safety.”
60. In correspondence with DND, the Complainant further stated that:
“[Our company] asked via email if proof of curriculum was required or attesting that the curriculum met the requirements was enough—the reply was that attesting was adequate (30 July 2022). If there was a requirement to include a copy of a formal curriculum, that reply should have been clearer.”
61. In its response to OPO, DND stated that:
“[…] In response to the amended complaint that the mandatory criteria included vague and non-specific language, the criteria were rewritten several times to be more generic, ensuring fairness, transparency and that all potential bidders would have the ability to submit a compliant bid. Additionally, contracting policy states that bidders are entitled to ask clarifying questions as needed during the solicitation process. Any clarifying information provided by DND is provided to all bidders. The complainant did not ask any clarifying questions.”
62. Section 4.1.2.4 of the DMP requires that senior designated officials for the management of procurement be responsible to maintain the integrity of the procurement process.
63. Jurisprudence has established that bidders bear the onus to seek clarification of matters considered ambiguous or uncertain. In its May 2022 decision in Krav Maga Ottawa v. the Department of Foreign Affairs, Trade and Development PR – 2022 – 010, the CITT ruled that if a bidder is “unsure about the language in the RFP, it could and should have sought clarification from [the department] prior to submitting its bid. Indeed, bidders are expected to raise questions in a timely manner if they believe the RFP language to be unclear. As the Federal Court of Appeal stated in IBM Canada Ltd. v. Hewlett Packard (Canada) Ltd., “potential suppliers are required not to wait for the attribution of a contract before filing any complaint they might have with respect to the process. They are expected to keep a constant vigil and to react as soon as they become aware or reasonably should have become aware of a flaw in the process.”
Analysis—Issue 2
64. The mandatory evaluation criteria required that:
- M1: “Contractor to provide a copy of Sexual Misconduct curriculum (in both Official Languages (English and French)) and evidence that the training has been supported by clinicians who are expert in the field of military sexual misconduct, sexual misconduct and /or sexual misconduct survivor support.”
A recognized expert can be academic professionals, medical experts, and/or an equivalent expertise gained through experience in the field as agreed upon by the Contractor and the TA.”
- M2: “Contractor’s Group Facilitator and Group Support Persons must be fully bilingual in both Official Languages (English and French) or the contractor must provide a translator.”
- M3: “The contractor’s Group Facilitator resource’s résumé must be provided, that includes professional certifications and at minimum one year experience in delivery of these types of training sessions.”
- M4: “The contractor’s Group Support resource’s résumé must be provided. Résumé to include professional certification(s). Proposed resource must have a minimum of 6 months experience in providing one-on-one professional support.”
- M6: “Contractor must include action plan detailing how the Contractor’s Training Delivery team will provide support to participant(s) that may experience an emotional and/or physical response as a result of potentially triggering course content and/or during training delivery.”
65. On July 30, 2022, the Complainant sent a clarification question to DND asking the following:
”Are we required to provide proof of entire curriculum in French, or is attesting that we have all materials translated adequate?”
66. The response from the CA to the Complainant dated August 2, 2022, stated:
“Attesting that you have materials translated will be sufficient.”
67. DND evaluators conducted the review of all documents received by the Complainant, as directed by the Contracting Authority on August 18, 2022. The result of the evaluation showed that the Complainant did not provide a copy of its course curriculum (either in English or in French), nor did it provide an attestation that the course materials were translated.
68. In their regret letter, DND stated that the Complainant’s bid was rejected because it did not provide a copy of its training curriculum as was required under M1.
69. The Complainant requested a clarification with regard to evaluation criterion M1 but the question posed pertained to the French translation of the curriculum only. The response from DND stated that the Complainant could submit an attestation that its course materials were translated in French. The Complainant was still required to provide a copy of the course curriculum in English but did not do so.
70. While the wording of evaluation criterion M1 could have been improved, the mandatory requirement to provide a copy of the course curriculum was sufficiently clear to enable bidders to submit a compliant bid. The Complainant did request clarification with regard to the linguistic aspect of mandatory evaluation criterion M1, but did not ask any clarification questions regarding any other aspect of mandatory evaluation criterion M1 or the remaining evaluation criteria prior to submitting its bid.
71. Jurisprudence has established that potential bidders are expected to seek clarification when faced with unclear solicitations. While the wording of evaluation criteria M2, M3, M4 and M6 also could have been improved, these mandatory requirements were sufficiently clear to enable bidders to submit a compliant bid. This is evidenced by the fact that the Complainant’s bid was found to be compliant on mandatory evaluation criteria M2, M3, M4 and M6 as was the winning bidder’s.
72. Mandatory criteria are used to highlight to bidders what their bids must demonstrate to pass to the next phase of evaluation. Departments must, therefore, ensure the mandatory criteria are properly described to ensure: (a) bidders understand how to meet them; and (b) evaluators have an objective, measurable standard against which to assess them. It can also be difficult to defend against external challenges to the evaluation process and demonstrate criteria have been strictly adhered to when the criteria are unclear and open to multiple interpretations. Clear, precise and measurable evaluation criteria support fair and transparent procurement.
Finding—Issue 2
73. The Procurement Ombudsman finds the mandatory evaluation criteria were sufficiently clear to enable bidders to submit a compliant bid.
74. The Procurement Ombudsman also finds that, to the extent the Complainant found the requirement vague, it had an obligation to seek clarification which it failed to do for any mandatory evaluation criterion except the linguistic aspect of mandatory evaluation criterion M1.
Conclusion
75. The Procurement Ombudsman found the evaluators’ assessment that the winning bidder complied with mandatory evaluation criteria M3 to be unreasonable. Therefore, the Department awarded the contract to a non-responsive bidder.
76. The Procurement Ombudsman further found the evaluators’ assessment of the Complainant’s bid as non-compliant was not unreasonable.
77. Finally, the Procurement Ombudsman found that while the clarity of the mandatory evaluation criteria could be improved, the criteria were sufficiently clear for bidders to understand and submit fully compliant bids.
78. Given that the solicitation was found to be sufficiently clear to obtain fully compliant bids and that the Complainant’s bid was assessed to be non-compliant, the Procurement Ombudsman cannot recommend compensation pursuant to paragraph 13(1) (a) or (b) of the Regulations because the complainant would not have been awarded the contract as a result of the winning bid having been deemed non-compliant.
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