Acquisition of Services of an Anti-Racism Consultant by Immigration, Refugees and Citizenship Canada

July 2024

Summary

On this page

• The complaint
• Mandate
• Considerations
• Chronology of events
• Details from the Complaint and Immigration, Refugees, and Citizenship Canada response
• Applicable policy
• Relevant jurisprudence
• Analysis of issues and findings
  • Issue 1—was mandatory criterion M1 unreasonable?
    • Finding—issue 1
  • Issue 2—was rated criterion R3 unreasonable?
    • Finding—issue 2
  • Issue 3—was the departmental response to the complainant timely?
    • Finding—issue 3
• Conclusion
• Other observations
• Compensation

The Complaint

1. On January 16, 2024, the Office of the Procurement Ombud (OPO) received a written complaint from a Canadian supplier (the Complainant) regarding a contract awarded by Immigration, Refugees, and Citizenship Canada (IRCC; the Department). The contract was for services of an anti-racism consultant with professional expertise in systemic bias. It was awarded on December 6, 2023, and was valued at $102,500.00 (taxes excluded).

2. The Complainant contacted OPO stating it believed that the qualification requirements precluded it from bidding because they were racist in nature, specifically around the merit-based requirements.

3. The complaint raised the following issues:

1. Was mandatory criterion M1 unreasonable?
2. Was rated criterion R3 unreasonable?
3. Was the Department’s response to the Complainant’s question timely?

4. On January 19, 2024, 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 (PO) requested IRCC provide all departmental records associated with the procurement and the award of the contract in question, as well as IRCC’s procurement policies and guidelines in effect at the time of the solicitation. The PO also requested the Complainant provide any additional information not submitted as part of the complaint.

7. IRCC requested the use of the expanded review process. In accordance with subsection 11(2) and following of the Regulations, IRCC was given 25 working days to comment on the complaint. These comments were then shared with the Complainant, which then had 10 working days to respond to the comments. IRCC then had another 10 working days to provide additional information.

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

Considerations

9. OPO is neither a court nor a tribunal of competent jurisdiction over issues relating to discrimination under the Canadian Human Rights Act or a violation of equality rights under the Canadian Charter of Rights and Freedoms, and cannot comment on assertions that would be the subject of an inquiry under the Canadian Human Rights Act or the Canadian Charter of Rights and Freedoms. However, the PO may examine whether the Department’s actions were compliant with applicable policies and examine relevant issues such as whether there were unreasonable or discriminatory bid evaluation criteria that do not fulfill legitimate operational requirements.

10. Due to the nature of the complaint, it is valuable to highlight current Federal Government approaches toward diversity, equity, and inclusion which seek to advance the fair treatment of, and promote business for, groups who have historically been under-represented in the federal supply chain. These Federal Government approaches include:

1. Gender-based Analysis Plus (GBA Plus) to support the development of responsive and inclusive policies, programs, and other initiatives.
2. The mandatory minimum 5% Indigenous procurement target which requires that federal departments and agencies ensure a minimum 5 percent of the total value of contracts are allocated to Indigenous businesses.
3. The focus in many Ministers’ mandate letters, including that of Immigration, Refugees, and Citizenship Canada, was to move more quickly on the path of reconciliation and to continue to address profound systemic inequities and disparities that remain present in our society and institutions. This focus includes women, Indigenous Peoples, Black and racialized Canadians, newcomers, faith-based communities, persons with disabilities, and LGBTQ2+ Canadians.

11. On January 22, 2021, the Clerk of the Privy Council and Secretary to the Cabinet issued the Call to Action on Anti-Racism, Equity, and Inclusion in the Federal Public Service. It focuses on diversifying the leadership within the Public Service. While it does not directly address reducing barriers for the supplier community, a diverse representation within the government would provide a clearer understanding within the Federal Public Service of the barriers faced by equity deserving groups across Canada and how to implement measures to reduce and eliminate said barriers.

12. Immigration, Refugees, and Citizenship Canada responded to the Call for Action outlining how they were addressing the issues, through their Anti-Racism Value Statement and through an Anti-Racism Task-Force that was previously created in 2020. They resolved, among other things, to actively promote anti-racism, proactively engage in dialogue, be accountable and transparent, identify and address systemic discrimination and barriers, engage with external equity-seeking groups and organizations and to sustain their efforts to eliminate systemic racism.

13. When reviewing the complaint, it was noted that the Request for Proposal (RFP) stated in Appendix D, Statement of Work (SOW) that this project will benefit most from the expertise of a resource with lived experience related to Anti-Racism, Equality, Diversity and Inclusion (AREDI), but is open to a resource with experience in the field and with experience evaluating programs for systemic bias.

14. OPO reviewed the complaint in the context of the policy instruments in effect during the time of the procurement process in question, as well as the overarching government-wide responsibility to reduce barriers for equity deserving groups in doing business with the Federal Government.

Chronology of Events

15. On September 5, 2023, IRCC published an RFP for an Anti-Racism Consultant on CanadaBuys, the Government of Canada’s official source for tender and award notices. The solicitation closing date was October 3, 2023.

16. On September 12, 2023, IRCC issued Amendment 001 to respond to supplier questions and to revise R2 of the Point Rated Technical Criteria to accept provincial or municipal government experience in addition to federal government experience.

17. On September 19, 2023, IRCC issued Amendment 002 to respond to supplier questions by revising R1 of the Point Rated Technical Criteria to accept provincial or municipal government experience in addition to federal government experience.

18. On October 3, 2023, IRCC issued Amendment 003 to respond to a supplier’s request to extend the solicitation closing date to October 5, 2023.

19. On October 5, 2023, at 10:11 a.m., the Complainant sent an email to IRCC expressing their potential interest in responding to the solicitation along with their concerns regarding the evaluation criteria within the solicitation. The email also expressed the Complainant’s interest in having an opportunity to meet with IRCC to better understand the RFP process, in preparation for future solicitation opportunities.

20. On October 5, 2023, at 2:00 p.m., the solicitation closed. The Complainant did not submit a bid. There were a total of 7 bids received on time.

21. On October 19, 2023, IRCC responded to the Complainant’s email to advise them that they would engage with their internal Anti-Racism Task Force regarding the Complainant’s concerns.

22. On October 31, 2023, a consensus meeting with IRCC’s evaluation team occurred.

23. On December 6, 2023, the Complainant sent an email to follow-up on the Department’s response to the concerns that they brought forward regarding the solicitation.

24. On December 6, 2023, the contract was awarded and published on CanadaBuys.

25. On December 7, 2023, IRCC responded to the Complainant and expressed an interest to gather additional information from the Complainant either through written correspondence or a virtual meeting.

26. On December 11, 2023, a virtual meeting was held between IRCC and the Complainant.

27. On December 15, 2023, the Complainant sent additional information to IRCC as requested by the Department during the December 11 virtual meeting.

28. On January 16, 2024, the Complainant submitted their complaint to OPO.

29. On February 2, 2024, OPO advised both IRCC and the Complainant that it had launched a review of the complaint.

Details from the Complaint and Immigration, Refugees, and Citizenship Canada response

Issue 1: Was mandatory criterion M1 unreasonable?

30. The Complainant stated:

The RFP states that “The Bidder must demonstrate that the proposed resource has obtained a university degree from a recognized university in human resources management, labour or industrial relations, psychology, public or business administration, organizational development, education sciences, social sciences, or sociology. To demonstrate this criterion, at the time of bid closing, the Bidder must provide a copy of the proposed resource degree from a recognized post-secondary institution.”

…it is unclear how these specific degrees relate to anti-racism. Were students taught in courses how to be anti-racist? The answer is likely no as anti-racism educational efforts have only become more mainstream in recent years. And how about lived experience—why is this not taken into consideration? At a minimum, this should indicate university and/or related experience, which can be demonstrated via technical requirements detailing work history and work process along with contact information from the designated procurement person hiring and managing the project, which can be checked.

This requirement is further brought into question when considering the scoring for the technical criteria, which does not include the educational requirement. Why is this a mandatory criterion that you need to meet prior to getting to the point structure?

Issue 2: Was rated criterion R3 unreasonable?

31. The Complainant stated:

Excerpt 1: The Bidder should demonstrate they have promoted [anti]-racism and diversity through the following corporate activities within the organisation:

1. The Bidder has internally published policies or commitments on anti-racism and inclusiveness. The Bidder must provide the following with the bid:

1. A description of the policy or commitment; and
2. A copy of the policy or the commitment documents including their effective date.

Excerpt 2: 2.The Bidder’s employees are mandated to take mandatory training on anti-racism. The Bidder must provide the following with the bid:

1. A description of the training;
2. The name of the training course;
3. The name of the service provider;
4. A copy of the course outline (if developed internally).

Excerpt 3: 3.The Bidder’s employees are mandated to take unconscious bias training. The Bidder must provide the following with the bid:

1. A description of the training;
2. The name of the training course;
3. The name of the service provider; and
4. A copy of the course outline (if developed internally).

Regarding the requirement for staff to have “anti-racism training” (excerpt 2) and “unconscious bias training” (excerpt 3), we [the Complainant] emailed the contracting authority to flag these concerns initially. The email we [the Complainant] sent stated, “…there are qualification requirements that would preclude us from applying that, from our perspective, appear to present as systemically racist in nature specifically around your merit-based requirements.

These include, (1) university degrees that may not even by succinct with anti-racist work and (2) the requirement of the bidder and their staff to have certificates in anti-racism and unconscious bias training. There are others which are not listed here, but these examples by their very nature, in many instances, tend to unintentionally discriminate and exclude Black and People of Colour in particular, to who many are leading this work with their lived experiences as well as their expertise, both academically and experientially, over significant periods of time.”

Excerpt 4: 4. The bidder has made publicly available organizational commitments to a diverse workforce. The Bidder must provide the following with the bid:

1. A description of the commitment;
2. A copy of the commitment documents including their effective date.

Excerpt 5: 5.The bidder has developed internal staffing and/or recruitment strategy(ies) to increase representation of underrepresented groups in their workforce. The Bidder must provide the following with the bid:

1. A description of the strategy(ies);
2. Copies of job postings or other staffing/recruitment documents demonstrating compliance with the criterion. Bidders may obtain a maximum total score of 12 points.

Regarding excerpt 1, 4 and 5 shown above, we [the Complainant] would like to highlight that by making public statements and providing descriptions of organizational commitments, does not necessarily mean that the actions of the company are anti-racist in nature. Rather, this criteria focuses on the optics of Anti-Racism and appearing to be in support of anti-racist practices, rather than driving real change within your organization. Criteria such as this rewards companies for performative commitments that are being used as a decoy to substantiate commitments to DEI [Diversity, Equity, and Inclusion], when they truly have not done the work within their organizations. If this work has been done and aligns with the work that a company has truly done, and the procurement team doesn’t understand the challenges regarding discrimination and the many points we [the Complainant] have included …how do they then decipher the performative nature of the requested statements, from those statements that reflect a company’s real and tangible effort and change in regard to DEI? Statements that go beyond the optics to reflect change and commitment to the many areas where diversity gaps reside, such as Black and people of colour management and leadership in place (being in line with population standards), mentorship and sponsorship programs established, culture and policies that can be cited that demonstrate DEI development, and equity and inclusion throughout the organization that has been implemented using a lens that is inclusionary to create these newly stated policies, commitments and actions?

Issue 3: Was the Departmental response to the Complainant’s question timely?

32. The Complainant stated:

[We] sent the email on October 5th and received a response on October 19th that they were investigating. I have since reached out and we had a virtual meeting December 11th with them so they could gather more information from us.

[We] explained our concerns to the team and while they listened, we did not receive any explanation other than claiming that their aim was to attract women owned racialized businesses. ...They made no indication that they felt it was discriminatory in nature in any way. The Department asked us to provide some information in regard to our business as well as our website, which we have done. From our viewpoint, this further exacerbates the barriers set in place that actually preclude women-owned Black businesses such as ours.

33. The Department’s first response to issues 1, 2, and 3 to OPO:

It was brought to IRCC’s attention, by a potential vendor, that some of our commonly used diversity criteria could be problematic in terms of setting barriers for minority groups. This constitutes the first official complaint regarding these criteria; therefore the Procurement team wasn’t aware of any potential issue. Unfortunately, the concerns were not addressed in a timely manner and at the time of the meeting, this particular procurement process could not have been put on hold. We are looking at our internal process, as well as at the specific criteria to avoid any similar issues and concerns in the future.

34. The Complainant’s response to the Departmental response:

Upon receiving this response, [we] identified three statements of particular concern which they addressed in a written response submitted to OPO. The three statements are as follows:

1. “the Procurement team wasn’t aware of any potential issue”,
2. “the concerns were not addressed in a timely manner”, and
3. “we [IRCC] are looking at our internal process”.

While [we] acknowledge that the initial contact was made with IRCC on the closing date of the RFP in question (October 5th, 2023), the purpose behind the contact at the time was to gain a better understanding of the RFP process and to highlight concerns that  [we] had. As such, the statement “the concerns were not addressed in a timely manner” is unreasonable as [we] contacted the Contracting Authority to request a meeting and it was not until almost two weeks later that IRCC responded. It is our contention that we [the Complainant] handled the situation exactly as it should, and it is IRCC that did not respond in a timely fashion.

Further to the statements “the Procurement team wasn’t aware of any potential issue”, and “we are looking at our internal process”, it is [our] stance that the issues brought up through the formal complaint should have been addressed in 2021 when the Call to Action on Anti-Racism, Equity, and Inclusion in the Federal Public Service mandate began.

The Call to Action on Anti-Racism, Equity, and Inclusion in the Federal Public Service was launched in 2021 to “combat racism and to build a diverse, equitable and inclusive public service.”

35. In its final response on issues 1, 2 and 3 to OPO, the Department stated:

Even though the initial contact from [the Complainant] was made with IRCC on the closing date of the RFP in question, IRCC did not take immediate action when the client reached out to the procurement team on October 5 and recognizes it should have. Since that incident, IRCC Procurement has instituted regular check-ins on the [Buy and Sell] site to receive complaints in a timely manner and respond promptly. This practice has also been embedded in training for employees.

IRCC acknowledges that they should have acted as soon as the concern was raised, to be able to review the specific evaluation criteria in question. Since then, the new process has been reinforced with the employees and management team, ensuring prompt action is taken, if necessary, upon receiving correspondence pertaining to a procurement process.

A meeting took place with the IRCC Anti-Racism group to review the specific criteria in this context and more consultations will follow in 2024-25 to ensure that all aspects are considered for future. Moreover, the Procurement team commits to continue to investigate and implement measures to meet Anti-Racism, equity and inclusion objectives, such as consulting other governmental departments to share best practices, review the contractual process to identify potential bias, seek guidance from central agencies on common approach where possible and strengthen the emphasis on the importance of Anti-Racism, equity and inclusion within the team and during the training of new employees involved in the procurement process.

Applicable Policy

36. 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:

4.2 Business owners are responsible for the following:

4.2.1 Clearly defining, to contracting authorities, the intended outcomes of the procurement, including the operational requirements, end user needs, expected benefits, alignment with the government’s strategic direction and total costs over the life cycle whenever possible.

[…]

4.2.3 In collaboration with contracting authorities, supporting procurement-planning and decision-making by:

4.2.3.1 Conducting market analysis to better understand industry capacity and availability; and

[…]

4.2.3.3 Identifying, mitigating and disclosing occurrences or risk that may have a negative impact on human rights, and environmental and social considerations;

4.2.3.4 Developing clear statements of work and technical evaluation criteria;

[…]

4.2.7 Ensuring that the intended outcomes of the procurement are aligned with the departmental mandate and priorities, available funds, and key socio-economic and environmental benefits:

[…]

4.2.7.3 Where appropriate, considering opportunities to support the participation of Indigenous peoples in matters related to procurement and documenting files accordingly;

[…]

4.3 Contracting Authorities are responsible for the following:

4.3.1 Conducting procurements on behalf of the department or agency, and establishing contracts and contractual arrangements based on sound procurement principles, including fairness, openness, and transparency to obtain best value;

[…]

4.5.7 Designing and conducting the bid evaluation process, financial assessment, and due diligence;

4.5.8 Limiting the number of mandatory technical criteria to those determined to be essential requirements in order to achieve the desired outcomes and ensure that no bid is unnecessarily disqualified. [emphasis added]

[…]

4.10.1.7 Documentation of any criteria, considerations or plans that leverage procurement to provide socio-economic and environmental benefits, including any additional known costs and planned outcomes;

37. Additionally, the Department stated that they used the Public Services and Procurement Canada Supply Manual as guidance which states:

4.35.5 Rated criteria

b. When point rating is used, bids/offers/arrangements may have to achieve a minimum number of points overall to be considered responsive… When assigning weights to each criterion, the contracting officer and client department should ensure that a high aggregate of points for minor criteria does not overcompensate for a low aggregate of points for major criteria.

Relevant Jurisprudence

38. The following Canadian International Trade Tribunal (CITT) decisions provide further guidance on how to interpret the issues at hand:

(Foundry Networks, PR-2001-048): The CITT has long acknowledged that departments can create procurement criteria, to the extent that they meet the department’s operational requirements. Additionally, there is no need for the government to compromise its legitimate operational requirements to accommodate suppliers. However, entities may not adopt unjustifiable specifications that do not serve legitimate operational requirements. These requirements are unreasonable.

(Vintage Designing Co PR-2017-050): The CITT found that Government institutions have a broad discretion to define experience requirements in procurements so long as they constitute legitimate operational requirements.....A procuring entity is entitled to express any real and reasonable needs that it may have and is under no obligation to compromise its legitimate operational requirements to accommodate a bidder’s particular corporate circumstances…there is not necessarily anything inherently discriminatory in the tendering procedures where bidders are on an unequal footing going into the bidding process… competitive advantages for certain suppliers could be created as a result of incumbency or any number of other business factors. Thus, if a bidder is at a disadvantage, it does not necessarily follow that the tendering procedures used by [the department] are discriminatory. For this reason, the fact that the requirement for a specific type of equipment is onerous and could be more burdensome for certain potential suppliers than others is not sufficient to conclude that the tendering procedures are discriminatory.

(Canadian Beaver Information Technology Inc PR-2006-020): It was deemed that a criterion requiring that a bidder have accreditation as a Microsoft Certified Partner for Learning Solutions was not in service of the essential operational requirements of a contract teaching Statistics Canada employees how to use Microsoft Word. According to the tribunal, all that mattered is whether they could fulfill the actual operational requirement—which was providing Microsoft Word training.

Analysis of Issues and Findings

Issue 1—Was mandatory criterion M1 unreasonable?

The RFP included 2 mandatory criteria that a bidder had to meet for their bid to be deemed responsive, M1 and M2. M1 is the mandatory requirement in question for this issue.

40. Mandatory criterion M1 required that a proposed resource had obtained a university degree. It further outlined the specific program areas deemed acceptable for the degree requirement. M1 also included a requirement to provide a copy of the proposed resource’s degree at the time of bid closing.

41. The Complainant identified concerns regarding the challenges that bidders may encounter in order to comply with the requirements associated with M1.

42. In response, IRCC indicated that the criteria used were guided by the Department’s commonly used diversity criteria. Further, IRCC recognized the Department’s short-coming in identifying the potential barriers that could impact underrepresented communities and noted that an active review of IRCC’s internal processes was underway in order to address the raised concerns and minimize the risk of similar ones for the future.

43. In its review, OPO found that guidance from the Department’s Financial Operations and Procurement team to the internal client did not include any justification for the mandatory criteria but did note the same criteria had been used verbatim in a previous and similar requirement. Additionally, the Department did not supply any documentation to support decisions made regarding any criteria, or considerations or plans that leverage procurement to provide socio-economic and environmental benefits.

44. Section 12.2 of the Regulations state “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.” While this standard is intended to apply to the assessment of bids, it remains a useful standard to assess the actions of IRCC in this case.

45. Under Section 4.5.8 of the DMP, contracting authorities must limit the number of mandatory technical criteria to those determined to be essential requirements in order to achieve the desired outcomes and ensure that no bid is unnecessarily disqualified. It is important to define the word “essential” to inform the review. The relevant meaning of essential in the Concise Canadian Oxford dictionary is “absolutely necessary, indispensable, requisite”.

46. To determine if mandatory criterion M1 was an essential requirement in order to achieve the desired outcomes, the PO had to determine if the criterion for a university degree in the stated fields was absolutely necessary, indispensable, or requisite.

47. There was no evidence provided by the Department to indicate that the requirement for a university degree in one of the several disciplines listed was essential to demonstrate that a resource was qualified to be an “Anti-Racism Consultant with professional expertise in systemic bias”, as specified in the objective of the requirement’s Statement of Work. While the Department limited the number of mandatory technical criteria to only two requirements, it is unclear why mandatory criterion M1 was essential to achieve the desired outcome and ensure that no bid was unnecessarily disqualified.

48. Similar to the CITT’s Canadian Beaver Information Technology Inc. case mentioned above, mandatory criterion M1 for a university degree in one of the stated disciplines was not in service of the essential operational requirement of providing the services of an Anti-Racism Consultant with professional expertise in systemic bias.

49. While a university degree can be beneficial and provide solid foundational knowledge in certain areas, including anti-racism training, it is not an absolutely necessary, indispensable or requisite factor of one’s expertise in providing services as an Anti-Racism Consultant with professional expertise in systemic bias. The broad nature of the types of degrees that were included was also indicative of no specific knowledge being required. It is important to consider a resource’s overall qualifications, experience and perspectives when seeking professional expertise in this important area.

Finding—Issue 1

50. The PO found that mandatory criterion M1 for a university degree from a recognized university in human resources management, labour or industrial relations, psychology, public or business administration, organizational development, education sciences, social sciences, or sociology was not an essential requirement for the services of an Anti-Racism Consultant with professional expertise in systemic bias and was therefore unreasonable.

Issue 2—Was rated criterion R3 unreasonable?

51. The solicitation document included 3 point rated criteria, R1, R2 and R3. The Complainant identified concerns with R3 that precluded its ability to submit a compliant bid.

52. Rated criterion R3 was made up of 5 subsections, for a total maximum score of 12 points out of the total 96 points that could be attained by a bidder within the point-rated technical criteria.

53. Further, the minimum passing mark to be considered for contract award was 62 points. Therefore, should a bidder receive zero out of 12 points for R3, a bidder may still achieve the minimum number of points required to be considered for contract award.

54. The subsections listed in rated criterion R3 are reflective of elements identified in the Department’s response letter to the Call to Action. The response letter outlines how IRCC endeavoured to continue the promotion of anti-racism and diversity through specific activities and initiatives within the Department. These involved strategies in shifting culture and mindset, people management and accountability. Further, the Anti-Racism Value Statement is IRCC’s publicly accessible commitment to foster diversity, equity, and inclusion within the organization.

55. According to the response received from IRCC, the criteria applied in the solicitation were guided by commonly used diversity criteria within the Department. However, IRCC recognized the Department’s shortcoming in identifying the potential barriers that could impact underrepresented communities and noted that an active review of IRCC’s internal processes was underway in order to address the raised concerns and minimize the risk of similar ones for the future.

56. It could be inferred that technical criterion R3 reflected the Department’s intent to ensure that the potential service provider’s corporate activities and initiatives were aligned with what the IRCC was driving within their own organization.

57. In its review, OPO found that guidance from the Department’s Financial Operations and Procurement team to the internal client did not include any justification for the criteria found at R3 but did note the same criteria had been used verbatim in a similar requirement. Additionally, the Department did not supply any documentation of any criteria, or considerations or plans that leverage procurement to provide socio-economic and environmental benefits.

58. At first glance the R3 criteria appeared to be inclusive. However, upon further examination, it became apparent that R3 was more reflective of allyship and created a preference for those bidders who were not themselves equity deserving groups. Allyship is defined as the effort by those who wish to advance the interests of historically marginalized groups through different activities such as using more inclusive language and removing barriers and biases. Therefore, while there could have been an underlying intent to advance the interest of historically marginalized groups, some of the criteria applied would not have translated effectively for a supplier who is, by its very nature, inclusive and representative through its hiring practices.

59. The Department itself acknowledged the importance of lived experience in the SOW but did not include any criteria that valued lived experience in the evaluation of bids. The importance of lived experience was further undermined by criteria R3 which created a preference for bidders who promoted allyship rather than historically marginalized bidders themselves.

Finding—Issue 2

60. The PO recognizes that IRCC was guided by commonly used diversity criteria within the Department and that the technical criteria outlined in R3 reflected the Department’s intent to ensure that the potential service provider’s corporate activities and initiatives were aligned with the IRCC’s organizational values. However, this criterion is rendered unreasonable by presenting barriers for the exact bidders the procurement was designed to attract. The purpose of this procurement was to address systemic bias within IRCC systems, by obtaining the services of a supplier with adequate knowledge of unconscious bias and diverse staffing. However diverse suppliers do not need a requirement for a diverse workforce or a plan to increase underrepresented groups in their workforce. As a result, the criterion actually creates barriers for diverse bidders, and by going against the procurement’s very purpose, cannot be said to fulfill a legitimate operational requirement.

61. In the review, the PO referred to jurisprudence which has established that departments have the discretion to define their requirements to meet operational needs and are not required to compromise their legitimate operational requirements to accommodate suppliers.

62. The PO recognizes the discretion afforded to departments but found that R3 was not reflective of the IRCC’s own stated preferences for lived experience given the services required. Criteria R3 was written from an allyship perspective and not from an equity deserving supplier perspective.

63. The PO found that Issue 2 had merit and rated criterion R3 was unreasonable.

Issue 3—Was the Departmental response to the Complainant timely?

64. With regard to the timeliness of IRCC’s response to the Complainant’s initial question received on October 5, 2023 (i.e. the date of bid closing), it should be noted that Section 2.3 of the RFP clearly stated: “All enquiries must be submitted in writing to the Contracting Authority no later than 5 (five) calendar days before the bid closing date. Enquiries received after that time may not be answered.”

65. The RFP was posted on CanadaBuys on September 5, 2023, and originally was to close on October 3, 2023. The closing date was amended to October 5, 2023, in response to a request from a supplier.

66. The Complainant sent an email to IRCC on October 5, 2023, at 10:11 a.m. The Complainant asked if they could schedule a zoom meeting “to understand how these RFP bid opportunities are put forth so we can be better prepared to submit our bid in the future.” [emphasis added]

67. The Complainant did not ask their question in a manner that suggested that an immediate response was required to allow them to submit a timely bid. The Department replied via email on October 19, 2023, at 1:20 p.m. thanking the Complainant for highlighting the issue and stating that they would engage their Anti-Racism Task Force for an initial conversation regarding the concerns to educate themselves to further discussions.

Finding—Issue 3

68. The RFP clearly stated that all enquiries must be submitted in writing to the Contracting Authority no later than 5 (five) calendar days before the bid closing date, and that enquiries received after that time may not be answered. The Complainant submitted its question to IRCC within hours of the bid closing date on October 5, 2023. While there was no obligation for the Department to respond to the Complainant, the Department did make the effort to reach out toward improving their process in the future.

69. By involving officers within IRCC who deal with anti-racism in the Department, and by setting up a meeting with the Complainant, the Department responded to the issues raised by the Complainant in a timely manner. Given that the stated purpose of the Complainant’s email was to “be better prepared to submit [our] bid in the future”, the Department’s written communication on October 19, 2023, and meeting with the Complainant on December 11, 2023, did not constitute an unreasonable delay.

70. The final component of this issue relates to the Complainant’s stance that the issues brought up through the formal complaint should have been addressed in 2021 when the Call to Action on Anti-Racism, Equity, and Inclusion in the Federal Public Service mandate began. The Call to Action was launched in 2021 to “combat racism and to build a diverse, equitable and inclusive public service.” The Complainant’s stance, while compelling, goes beyond the mandate of the Ombud and therefore cannot be assessed further.

71. The PO found that issue 3 had no merit, and the Departmental response to the Complainant was timely.

Conclusion

72. Regarding Issue 1, the PO found merit in the complaint that mandatory criterion M1 was unreasonable, as the requirement for a university degree in one of the designated fields of study was not an essential requirement for the services of an Anti-Racism Consultant with professional expertise in systemic bias.

73. Regarding Issue 2, the PO found merit in the complaint that rated criterion R3 was The criterion was not aligned with the Department’s own stated preference for lived experience and was written from the perspective of allyship.

74. Regarding Issue 3, the PO found no merit in the complaint that the Department did not respond in a timely manner. The Department responded to the Complainant’s email in a timely manner, consistent with the information in the RFP.

Other Observations

75. This complaint brings to light the value of diversity and inclusion considerations within Federal procurement practices. It further highlights the importance for departments to identify opportunities to strategically plan and manage procurements in a manner that enables operational outcomes and demonstrates sound stewardship and best value consistent with the Government of Canada’s socio-economic and environmental objectives.

76. The complaint further highlights concerns of potential barriers for equity deserving groups when participating in Federal procurement processes. Additional consideration for opportunities to reduce such barriers and seek to advance the fair treatment and promote business with equity deserving groups can foster diversity, equity, and inclusion within the Federal procurement landscape.

77. As a good practice, when departments make the effort to include a statement that the projects would, as an example, benefit the most from the expertise of a resource with lived experience, they should ensure that the evaluation criteria included in the RFP support the statement.

78. The PO noted IRCC’s commitment to work toward identifying potential barriers that could impact equity deserving groups by reviewing internal processes to minimize future concerns and issues, The PO encourages all departments to continue working toward this goal.

79. Finally, there is a gap, and a need for policy makers to develop comprehensive policy guidance and tools to support procurement officers in creating and measuring criteria toward diversity, equity, and inclusion in order to advance the fair treatment of, and promote business for, groups who have historically been underrepresented in the federal supply chain.

Compensation

80. 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.”

81. A competitive process was held where the actions of the Department did not prevent the bidder from submitting a bid. Therefore, the Ombud cannot recommend compensation in accordance with the Regulations.

Date modified:

2024-10-08