Review of a complaint: Acquisition of Janitorial Services by the Department of Fisheries and Oceans New

December 2023

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The Complaint

1. On July 15, 2023, the Office of the Procurement Ombudsman (OPO) received a written complaint from a supplier (the Complainant) regarding a contract awarded by the Department of Fisheries and Oceans (DFO). The contract was for janitorial services for a Fisheries and Oceans Canada Coast Guard Base, and it was awarded for $68,026.00 (including tax) on July 10, 2023.

2. The Complainant contacted OPO stating it believed the winning bidder was non-compliant based on a mandatory requirement in the bid solicitation to attend a site visit, and as a result should not have been awarded the contract. The Complainant clarified that it believed the winning bidder was not at the site visit and was in fact being represented by someone who did not work for the winning bidder. The Complainant stated that there was no attendance list at the site visit.

3. The complaint raised the following issues:

4. On July 20, 2023, OPO confirmed the complaint met the requirements of the Procurement Ombudsman Regulations (the Regulations) and it was considered filed.

Mandate

5. 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.

6. Pursuant to subsection 9(2) of the Regulations, the Procurement Ombudsman requested DFO provide all departmental records associated with the procurement and the award of the contract in question, as well as DFO’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.

7. The chronology of events and the findings in this report are based on the records provided by the Complainant and DFO, as well as relevant publicly available information. The failure by either the Complainant or DFO to disclose any relevant records or information could impact the findings of this report.

Chronology of Events

8. On May 11, 2023, DFO sent a Request for Proposal (RFP) for janitorial services to three suppliers. Bidders were required to meet six mandatory criteria, attend a mandatory site visit, and sign a site visit attendance list. The site visit was initially scheduled for May 25, 2023, at 8:30 AM and attendance confirmation was required by May 17, 2023. Bids were due May 31, 2023.

9. On May 11, 2023, the Contracting Authority (CA) sent an amendment to suppliers indicating that the mandatory site visit date had changed from May 25, 2023 to May 24, 2023, at 8:30 AM. On the same day, the winning bidder sent an email to the CA indicating it would attend the updated site visit.

10. On May 15, 2023, the Complainant sent an email to the CA indicating it would attend the updated site visit.

11. On May 24, 2023, the mandatory site visit occurred:

12. Between May 25, 2023 and May 30, 2023, the CA issued four amendments to suppliers which made corrections to the contract start date and the statement of work, answered supplier questions, and extended the solicitation period closing date to June 8, 2023.

13. On June 8, 2023, the solicitation closed. Two bids were received.

14. On July 10, 2023, DFO awarded the contract.

15. On July 12, 2023, DFO issued a regret letter to the Complainant indicating that a contract was awarded to the lowest priced bid.

16. On July 15, 2023, the Complainant submitted a complaint to OPO.

17. On July 17, 2023, the Complainant stated to OPO that the RFP indicated that a site visit was mandatory and that the winning bidder was not in attendance at the site visit.

18. On August 3, 2023, OPO advised both DFO and the Complainant that it had launched a review of the complaint.

19. On August 24, 2023, the Complainant provided further clarification to OPO regarding its complaint:

Analysis of Issues and Findings

Issue 1: Did the winning bidder and the Complainant comply with both elements of the mandatory criteria related to the mandatory site visit?

20. The Complainant stated that "the company who was awarded the contract did NOT attend the mandatory walk on May 24, 2023." The Complainant further stated that there was no attendance list to sign.

21. The Department’s response to OPO stated that the Complainant "alleges that Fisheries and Oceans Canada awarded a contract to a non-compliant bidder who did not meet the criteria set out in Section 1.3 of the Request for Proposals. I hereby confirm that [the winning bidder] did attend the mandatory site visit on May 24, 2023 from 8:15 AM to 9:08 AM as recorded on the COVID-19 Contractor Register attached."

22. Treasury Board’s Directive on the Management of Procurement (DMP) came into effect on May 13, 2021 and was applicable at the time of this procurement. The DMP states the following regarding evaluation criteria during the solicitation and bid evaluation process:

23. DFO’s guidelines for bid evaluation document states that "each evaluator will independently evaluate the mandatory criteria strictly using the information provided in the proposals. Mandatory criteria are assessed on a simple pass/fail basis. Bids not meeting the mandatory requirements must be declared non-responsive and not given further consideration."

24. Section 1.3 of the RFP stated the following in relation to the site visit: "It is a requirement for all persons wishing to tender on this project to attend this meeting at the site to familiarize themselves fully with the scope of work and the tendering requirements. The Bidder’s representative must sign an attendance list and attend the entire site visit to have their tender considered responsive."

25. Section 4.1 Evaluation Procedures of the RFP stated that: "bids will be assessed in accordance with the entire requirement of the bid solicitation including the "technical" and "financial" evaluation criteria."

26. Section 4.2 Basis of Selection in the RFP further stated that "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."

Analysis of Issue 1

27. To determine if the winning bidder and the Complainant complied with both elements of the mandatory criteria related to the site visit, the Procurement Ombudsman had to determine if there was insufficient written evidence to support the original assessment or if the evaluators’ assessment of the mandatory criteria was unreasonable.

28. The site visit was initially scheduled for May 25, 2023, at 8:30 AM and was later revised to be held May 24, 2023, at 8:30 AM. The CA sent an email to the three invited suppliers with the revised date.

29. The RFP required that "the Bidder’s representative must sign an attendance list and attend the entire site visit to have their tender considered responsive." No clarification questions were asked about the site visit.

30. The RFP did not specify what document would constitute an attendance list.

31. In DFO’s response to OPO, it indicated that attendance was recorded using a COVID-19 Contractor Register, which tracked first name, last name, company name, date, location, and time of visit. This document stated that "by signing this register, the employee confirms they have completed their risk assessment and the contractor meets the requirements to work safely at the site." The form did not allow prospective bidders themselves to sign in nor did it make reference to the RFP site visit requirement.

32. Both the Complainant and the winning bidder were signed-in at the scheduled time and location of the site visit by an unidentified individual working at the site responsible for administering the COVID -19 Contractor Register. Upon departure from the site, an unidentified individual working at the site signed out the representatives using the same COVID-19 Contractor Register. The Complainant was signed in at 8:13 AM and signed out at 9:20 AM. The winning bidder was signed in at 8:15 AM and signed out at 9:08 AM.

33. The mandatory site visit requirement had two distinct elements that must both be met to be determined compliant. First, the Bidder’s representative must sign an attendance list and second the representative must attend the entire site visit. In the present case, the COVID-19 Contractor Register was signed by someone working at the site (rather than the bidder representatives themselves), and the signed document attests to the fact that a COVID risk assessment was performed on the visitors permitted access to the premises. The bidder representatives themselves never signed, or attested, to anything.

Finding—Issue 1

34. The Procurement Ombudsman found that the COVID-19 Contractor Register provided sufficient written evidence that both the Complainant and a representative of the winning bidder attended the mandatory site visit, but not that they attended the entire site visit. The timing of the entire site visit was not stipulated with sufficient clarity to make a determination on this aspect of attendance. Furthermore the departure times of the bidders differed based on the information disclosed in the COVID-19 Contractor Register. Therefore the Ombudsman did not find sufficient evidence to establish the representatives of the winning bidder and the Complainant attended the entire site visit.

35. The Procurement Ombudsman further found that neither the winning bidder nor the Complainant met the second element of the mandatory criteria, as neither signed an attendance list themselves.

36. Therefore the Procurement Ombudsman finds that neither the winning bidder nor the Complainant complied with both elements of the mandatory criteria related to the mandatory site visit.

Issue 2: Did the Department of Fisheries and Oceans fail to establish a mechanism to allow compliance with the mandatory site visit per the requirements of the Request for Proposals?

37. The Complainant stated that "no sign in sheet was present at the office area."

38. The Department stated that there was an attendance list and contractor attendance was recorded using the COVID-19 Contractor Register.

39. The DMP states the following regarding mandatory criteria and fairness, openness, and transparency:

40. DFO’s procurement policy requires procurement officials to "identify the (minimum) requirements that are absolutely essential (indispensable) to the successful completion of the work, and to the compliance with the mandatory terms and conditions of the solicitation and resulting contract. Bidders must be able to provide evidence of meeting mandatory criteria at time of bidding." This enables the contracting department to assess the compliance of a bid at the evaluation stage of the procurement.

41. Section 1.3 of the RFP stated "the Bidder’s representative must sign an attendance list and attend the entire site visit, to have their tender considered responsive."

Analysis of Issue 2

42. On May 24, 2023, at 8:30 AM the mandatory site visit occurred with both the Complainant and a representative of the winning bidder present.

43. As part of its response to the complaint, DFO indicated that the COVID-19 Contractor Register was its method for tracking attendance at the mandatory site visit.

44. The contract file contained no other documents that evaluators could have used to determine compliance with the mandatory site visit requirement under section 1.3 of the RFP.

45. The COVID-19 Contractor Register is a document completed and signed by someone other than the bidder, and includes the contractor’s name and the time of visit. This document states that "by signing this register, the employee confirms they have completed their risk assessment and the contractor meets the requirements to work safely at the site." The document does not require or enable a contractor to sign in.

46. Section 1.3 of the RFP specifically required that "The Bidder’s representative must sign an attendance list." The COVID-19 Contractor Register is not an attendance list per the requirements of the RFP, as it does not enable the bidder’s representative to sign in to confirm compliance with the mandatory criteria in section 1.3. The signature in this case is an attestation by a third party concerning COVID-19 and safe work practices and is not the bidder’s representative’s signature.

47. By relying on the COVID-19 Contractor Register to support its claim, DFO is able to demonstrate that the named individuals on the COVID-19 Contractor Register attended the site visit; however the nature of the document does not allow the bidder’s representatives to sign the document for the purposes of compliance with section 1.3 of the RFP.

48. As noted above, DFO’s policy requires that "bidders must be able to provide evidence of meeting mandatory criteria at time of bidding." The procurement was structured in such a way that made it impossible for bidders to be compliant with section 1.3 of the RFP, as there was no site visit attendance list that bidders could sign as required by the RFP. Therefore no proof of signing could have been provided to the evaluators.

49. The consequence of not having a site visit attendance list is that bidders are unable to demonstrate compliance with a mandatory requirement, and by extension evaluators are unable to assess compliance. In the present case, because bidders were not able to sign in, strictly speaking, both the winning bidder and the Complainant were non-compliant with the mandatory requirement through no fault of their own.

50. The risk of using other administrative documents (i.e., the COVID-19 Contractor Register) to determine compliance with evaluation criteria is that bids may be unnecessarily disqualified, imposing a monetary cost on potentially otherwise compliant bidders and artificially narrowing the pool of competitive bids.

51. Site visits require the expenditure of resources beyond the standard resources required to draft a compliant proposal. Attendance lists should be specific to the criteria in the solicitation and documented at the time of the site visit. This information should be saved to the contract file and easily accessible by evaluators who have to determine compliance.

52. Another element that was addressed in paragraph 34 which requires mention in the analysis of Issue 2 is the matter of attending the entire site visit. As there was insufficient clarity on what was entailed in the entire site visit, it is impossible to determine whether this element of the mandatory criteria was also met.

Finding—Issue 2

53. The Procurement Ombudsman found that DFO failed to establish a mechanism to allow compliance with the mandatory site visit per the requirements of the RFP. It was further found that the COVID-19 Contractor Register was an inappropriate substitution for an attendance list that would have enabled potential bidders to sign in. Furthermore, the lack of clarity around what length of attendance would be considered attending the entire site visit made it impossible for any bidder to comply.

Other Observations

54. As per subsection 12(1) of the Regulations, the Procurement Ombudsman is required to consider any relevant factors related to the procurement process in question when conducting a review of a complaint.

Evaluations

55. OPO noted that evaluation forms used by the CA did not include reference to section 1.3 of the RFP, and were not signed at the time of evaluation.

56. The DMP requires that:

57. The language of Section 1.3 of the RFP regarding the mandatory site visit created a de facto mandatory criterion. The requirement under section 1.3 was not included in the evaluation grid with the other mandatory requirements and was therefore not explicitly evaluated or considered in the summation of results that determined compliance.

58. The consequence of this is that DFO is not able to fully support its evaluation decisions. Had DFO found one of the bidders non-compliant with the site visit, there would be no means of supporting its evaluation. Therefore, such an evaluation would be unreasonable.

59. Further, the evaluation results for the winning bidder and the Complainant were not signed at the time of contract award, and were only signed after OPO made a request to DFO for all contracting documents. It is crucial that contracting authorities fully document evaluation decisions prior to contract award, including signing and dating documents.

60. DFO had an obligation to evaluate all mandatory elements in the solicitation, and document its decisions accordingly. By not doing so, DFO risks undermining the integrity of the procurement process, deviates from sound procurement practices, and risks awarding to non-compliant bidders.

Conclusion

61. The Procurement Ombudsman found that:

Compensation

62. In order to recommend the payment of compensation to the Complainant, subsection 13(2) of the Regulations requires the following:

"If a competitive process was held, the Complainant must have submitted a bid in respect of the contract to which the complaint relates, unless it was prevented from doing so because of the actions of the contracting department."

63. As a competitive process was held and the Complainant submitted a bid, the Ombudsman may recommend payment of compensation in accordance with the Regulations.

64. At OPO’s request, the Complainant provided the costs it incurred to prepare and submit its bid, in the amount of $2,366.00.

Recommendation

65. In accordance with Paragraph 13(1)(b) of the Regulations, the Procurement Ombudsman recommends payment of $2,366.00 as compensation for the Complainant’s bid submission costs.

66. Bid submission costs are awarded because the Department placed the Complainant in a situation where they incurred costs to participate in a process where it was impossible to demonstrate compliance with a mandatory criterion, as they were unable to sign an attendance list. Costs for lost profit are not recommended because even if both bidders had been able to sign the attendance list, there is no evidence to demonstrate that the Complainant would have been the lowest-priced compliant bidder and been awarded the contract.

67. The Procurement Ombudsman further recommends that DFO review procurement documents to ensure a methodology is in place that allows prospective bidders to submit compliant bids, and evaluators to assess and confirm compliance with evaluation criteria.

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