Acquisition of Diversity and Inclusion Network Anti-Racism Training for Executives by the Canada Revenue Agency

July 2024

Summary

On this page

The Complaint

1. On January 26, 2024, the Office of the Procurement Ombud (OPO) received a written complaint from a supplier (the Complainant) regarding a contract awarded by the Canada Revenue Agency (CRA).The contract was for Diversity and Inclusion Network Anti-Racism Training for Executives and was awarded under the ProServices supply arrangement. The contract was awarded on January 16, 2024, and was valued at $76,000 (taxes excluded).

2. The complaint raised the following issues:

Issue 1: Was the initial procurement process followed by the CRA prior to launching the competitive solicitation process wrongful?

Issue 2: Was rated criterion R2 unreasonable?

Issue 3: Was CRA required to incorporate a requirement to provide at least one instructor with lived experience, and who is a member of Black and/or Indigenous, First Nations and Metis communities into the technical evaluation criteria?

Issue 4: Was CRA required to include a validation mechanism to ensure diverse ownership of the successful bidder?

3. On January 31, 2024, OPO confirmed the complaint met the requirements of the Procurement Ombudsman Regulations (the Regulations) and it was considered filed.

Mandate

4. 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.

5. Pursuant to subsection 9(2) of the Regulations, the Procurement Ombud requested CRA provide all records associated with the procurement and the award of the contract in question, as well as CRA’s procurement policies and guidelines in effect at the time of the solicitation. The Procurement Ombud also requested the Complainant provide any additional information not submitted as part of the complaint.

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

Considerations

7. The Office of the Procurement Ombud 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 any 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 Procurement Ombud may examine whether CRA’s actions were compliant with applicable policies, and examine relevant issues such as whether the solicitation contained unreasonable or discriminatory evaluation criteria that do not fulfill legitimate operational requirements

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

  1. Gender-based Analysis Plus (GBA Plus) to support the development of responsive and inclusive policies, programs and other initiatives.
  2. The Government of Canada’s commitment to increase the participation of Indigenous businesses in federal procurement. Under this commitment, federal departments and agencies are to ensure a minimum of 5% of the total value of contracts are awarded to Indigenous businesses.
  3. Statements in several Ministers’ mandate letters, including the Minister of National Revenue (who is responsible for CRA,) reference moving more quickly on the path of reconciliation and continuing to address profound systemic inequities and disparities 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.

9. PSPC’s Policy on Social Procurement was launched to provide guidance to reduce barriers, increase supplier diversity and enhance economic and social opportunities for under-represented groups. This Policy may be adopted and adapted by other government departments for their own use.

10. A Call to Action on Anti-Racism, Equity, and Inclusion in the Federal Public Service was issued by the Clerk of the Privy Council and Secretary to the Cabinet, on January 22, 2021. 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.

11. The CRA’s response to the Call to Action outlined initiatives to advance anti-racism and strengthen equity and inclusion by building greater awareness of racism and discrimination, and by emphasizing the importance of diversity and inclusion through employee and leadership training. The contract that is the subject of this review is part of the leadership training and effort by CRA to build greater awareness of racism within its executive branch.

12. 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.

Canada Revenue Agency Procurement Authority

13. Section 61 of the Canada Revenue Agency Act (CRA Act) provides CRA, within the limitations specified, with the authority to enter into contracts, agreements, or other arrangements with governments, public or private organizations and agencies or any person in the name of His Majesty in the right of Canada or in its own name. Further, under Subsection 30(1) of the CRA Act, CRA has authority over all matters relating to its general administrative policy, which would include CRA’s procurement policies. CRA’s procurement policy provides direction on the guiding principles and objectives of Agency procurements, as well as the related management and reporting obligations.

Chronology Of Events

14. On September 16, 2022, a director at CRA, who had recently taken executive anti-racism training delivered by the Complainant, sent an email to their CRA colleague, as well as the Complainant, positively referring the Complainant’s services.

15. On September 17, 2022, as a follow-up to the September 16 email, CRA emailed the Complainant and asked to discuss their previous experience working with the CRA.

16. On September 27, 2022, a virtual meeting occurred between the Complainant and CRA that resulted in CRA requesting by email “examples of Statements of Work for previous contracts” with CRA.CRA also added “Please note that we can’t confirm anything at this time. We will follow our contractual processes to see what might be possible.”

17. On September 28, 2022, the Complainant provided CRA with electronic copies of two proposals and a biography. The Complainant also mentioned that one of the proposals formed part of a non-competitive contract previously awarded to the Complainant by CRA. CRA acknowledged receipt of the information on the same day.

18. On October 27, 2022, the Complainant was contacted by CRA to inquire about their familiarity with the contracting process and if they were on a supplier “list” when they were awarded the previous non-competitive contract. On the same day, the Complainant confirmed that when the previous non-competitive contract was awarded, they were not an approved ProServices supply arrangement vendor, however, they had since qualified under the ProServices supply arrangement.

19. On December 7, 2022, CRA advised the Complainant that they were in the process of developing a statement of work for their requirement and that the Complainant would “be notified through ProServices supply arrangement.” CRA also asked if the Complainant’s services were bilingual.

20. On December 8, 2022, the Complainant replied and advised CRA that their services are bilingual, however there would be an additional cost for translation. The Complainant advised that due to the additional cost, a former CRA client did the translation internally keeping the contract value under $40,000. The Complainant also added that they were working with a second CRA client that also chose to provide their sessions only in English to not exceed the $40,000 limitation for non-competitive contracts.

21. On December 21, 2022, the Complainant sent an email to CRA to confirm when notification for the requirement via the ProServices supply arrangement should be expected.

22. On December 29, 2022, CRA informed the Complainant that the requirement would be for the following year, and not to expect a notification from the ProServices supply arrangement just yet.

23. On March 3, 2023, the Complainant sent an email to CRA to follow-up on when to expect the notification from the ProServices supply arrangement for the requirement.

24. On March 8, 2023, the Complainant sent a subsequent email to CRA to again follow-up on the previous email.

25. On March 10, 2023, CRA responded to confirm that it would proceed with the requirement and that pre-qualified suppliers would be invited by the ProServices supply arrangement to submit a proposal for a competitive Request for Proposal (RFP) for anti-racism executive training.

26. On March 13, 2023, CRA issued an RFP (solicitation number 1000434296) for Diversity and Inclusion Network Anti-Racism Training for Executives. The RFP was issued under the ProServices supply arrangement and indicated that 15 suppliers had been invited to bid.

27. On March 24, 2023, CRA emailed the Complainant to advise that the RFP was sent on March 13, 2023. The Complainant confirmed that they received the invitation and would be submitting a bid.

28. On March 31, 2023, the bidding period closed.

29. On July 18, 2023, CRA notified the Complainant that the process was unsuccessful and no contract was awarded as a result of the solicitation. The letter from CRA indicated the Complainant’s bid did not meet a mandatory criterion, and it was not scored against point-rated criteria for that reason.

30. On July 18, 2023, the Complainant responded to CRA acknowledging receipt of the solicitation results and seeking clarification for the reasons its bid was deemed non-compliant.

31. On July 19, 2023, CRA responded and offered a debrief meeting, which was subsequently held on July 27, 2023.

32. On July 28, 2023, CRA followed up by email stating, "It was a pleasure meeting you yesterday. We hope that this discussion answered your questions and we hope that you will resubmit a bid if the Agency decides to retender this RFP in the near future."

33. On September 28, 2023, CRA received approval to resolicit the requirement and continued with finalizing a RFP.

34. On October 18, 2023, CRA re-tendered the requirement for Diversity and Inclusion Network Anti-Racism Training for Executives (solicitation number 1000434296A). The re-tendered RFP was issued under the ProServices supply arrangement and indicated that 19 suppliers had been invited to bid.

35. On November 10, 2023, the bidding period for the re-tendered RFP closed.

36. On January 16, 2024, CRA notified the Complainant that it was unsuccessful in the process that had closed on November 10, 2023. The CRA letter identified the name of the successful bidder, the contract value, information about how the Complainant’s bid scored relative to the successful bid, and direction on how to request more information or to raise a complaint with OPO. The Complainant responded with a request for a debrief.

37. On January 23, 2024, CRA conducted a virtual debrief with the Complainant.

38. On January 26, 2024, the Complainant submitted their complaint to OPO.

39. On January 31, 2024, OPO confirmed the complaint met the requirements of the Regulations and it was considered filed.

40. On February 14, 2024, OPO advised both CRA and the Complainant that it had launched a review of the complaint.

Analysis of Issues and Findings

Issue 1: Was the initial procurement process followed by the CRA prior to launching the competitive solicitation process wrongful?

41. The Complainant stated:

The excerpt below has been included as evidence and a point of reference of the correspondence that took place with [the Complainant’s employee] and three team members from SIIB [the CRA Service, Innovation and Integration Branch] in December 2022, regarding the preparation of a statement of work for SIIB for this specific project. Through the email that [the Complainant’s employee] received, we were led to believe that we were being given the work as a team member from SIIB directly stated that “we are now preparing a statement of work for SIIB.

42. The following email, sent from CRA to the complainant on December 7, 2022, was provided in the complaint:

Categorization: Unclassified
Hi [Complainant’s employee],
Hope you’re doing well.
It has taken some time to get the necessary approvals but we are now preparing a statement of work for SIIB. You will be notified through ProServices. In the meantime, can you please tell me if your services are bilingual? Participants must be able to communicate in their preferred language and materials need to be available in both English and French.

43. The CRA responded to OPO:

The email provided as evidence by the Complainant to support the assertion that the CRA had implied a contract award to them dated December 7, 2022, which is prior to the issuance of the initial solicitation requirement. At that time, the Service, Innovation and Integration Branch’s (SIIB) Diversity and Inclusion Network was clear and specific to the Complainant that the requirement would be competed using the Public Services and Procurement Canada (PSPC) ProServices Supply Arrangement…

Vendors holding a ProServices Supply Arrangement are expected to be aware of the Supply Arrangement’s terms and conditions (which are published on PSPC’s ProServices webpage) which require that solicitations valued at over $40,000 be competed amongst a minimum number of qualified bidders.

Analysis—Issue 1

44. Leading up to the issuance of the first unsuccessful competitive RFP, CRA and the Complainant had been communicating for approximately 7 months regarding the provision of training. The key communications included:

45. CRA’s preliminary communications with the Complainant were consistent with communications a supplier should expect when a Federal Government buyer seeks to direct a contract. This is particularly true given the Complainant had previously provided similar services to the CRA through directed contracts. It became clear to the Complainant only on March 10, 2023, that a competitive process was being pursued. The CRA issued a competitive solicitation for the requirement on March 13, 2023.

46. The issue with CRA’s approach stems from their communication with the Complainant about a required service that included the exchange of information about the scope of work and pricing prior to determining their procurement strategy and prior to establishing a documented cost estimate. It became impossible to pursue a competitive process that was fair to all prospective suppliers after the initial communications with the Complainant. The initial process pursued by CRA was consistent with a process that would be pursued when directing a contract. The appearance of a directed process was reinforced by CRA linking their preliminary communications on this specific requirement to similar requirements that the Complainant had previously delivered to the CRA on a directed basis. While typically such information would not form part of the analysis, it became relevant in this review as the CRA themselves cited the previous work as the reason for their initial communications with the Complainant on the contract under review.

47. The practice of communicating directly with a supplier and exchanging information on the scope of work and pricing prior to establishing and documenting the estimated cost of the requirement should be avoided to ensure the fairness of the procurement process. Failure to do so can result in significant confusion on the part of the supplier who is engaged in individualized communications, as well as a lack of transparency and fairness to all other prospective suppliers in the event the service is ultimately procured competitively.

Finding—Issue 1

48. The Procurement Ombud found that the initial procurement process followed by the CRA prior to launching the competitive RFP was wrongful and resulted in misleading communications with the Complainant. Based on the multiple one-on-one communications spanning several months including exchanges regarding the statement of work and pricing, it was reasonable for the Complainant to initially believe a contract would be directed to them up until March 10, 2023.

Issue 2: Was rated criterion R2 unreasonable?

49. The Complainant stated:

One of the point-rated criteria within the RFP stated, “The Bidder should hold a professional certification in Individual Coaching, Executive Coaching or an equivalent certificate from an accredited organization,” while also asking for a copy of this certification be provided. Several concerns we have related to this are as follows: individuals may not have a copy of this certification available anymore, moreover what is the relevance? If an individual has a legitimate business (business number with ongoing operations) running anti-racism sessions and data analysis, including clients working within the same agency from separate branches with success and testimonials to legitimize that success - what merit does having a certificate hold and why is it required? That requirement is discriminatory. You are requiring, in this case, that a Black woman cannot run anti-Black racism workshops because she doesn't have a certificate, though she has 40+ years of lived experience, as well as collaborations with other big companies, experience running successful sessions and evaluations with proven results, but because she isn't a certified "coach", she becomes less qualified?

[The Complainant] would like to note that this complaint was discussed during our debrief meeting with the procurement team on January 23, 2024. When we highlighted our concern with this requirement for professional certification, we were told that we should have posed a question when the RFP was reissued asking what would constitute an acceptable response in lieu of a professional certificate. Further, it was noted that this was used as a “bonus question,” however this so-called “bonus question” ultimately had our bid disqualified. When our first bid was submitted, we had also not included any professional certification and at no point during the meeting we had with procurement team on July 27, 2023, to debrief on the initial RFP, was it noted that this lack of certification would be an issue as the basis for the initial disqualification was in regard to the translation of services. Further, the procurement team that we had met with during the July 27 meeting had noted that we should have confidence in the bid that we submitted because they had not seen that quality of bid elsewhere. They went on to say that if the bid was retendered, we would be able to make minor modifications and resubmit. Based on this feedback, the questions we submitted for the reissued RFP largely surrounded the translation piece to ensure that our bid was adhering to the updated mandatory requirements.

[The Complainant] would like to note that when the events described above were shared with the procurement team on January 23, 2024, we were then told that the process of the reissued RFP has nothing to do with the previous RFP. This response raises confusion surrounding inconsistencies between what was shared by the initial procurement team and what we were told by the procurement team of the reissued RFP. Further, as the RFP remained largely unchanged with most changes made surrounding the translator assistant and the delivery of services in French, bidders would not assume that these are distinct projects that are to be treated as such. This further raises to question as to how are bidders supposed to navigate these already complex processes when they are receiving contradictory information from those managing these processes?

50. The CRA responded to OPO:

As the training required was specific to executives and was intended to enable them to lead, influence and coach their respective managers and employees in anti-racism, awarding points to bidders providing facilitators with a professional certification was deemed to be a value-added element to the CRA.

Analysis—Issue 2

Technical Evaluation Rated Criteria

51. The re-tendered RFP, issued on October 18, 2023, included three rated criteria. These three criteria remained largely unchanged from the original unsuccessful RFP, issued on March 13, 2023, that did not result in the award of a contract. The three rated criteria from the re-tendered RFP are replicated below. The criterion at issue is R2, which pertains to professional certification in coaching.

Technical Evaluation Matrix Table
Rated Criteria Bid Preparation Instructions Rating Scale Max. Available Points
Organization experience and capability
R1. The Bidder should demonstrate that its organization has experience within the past 60 months from date of bid closing, in developing and delivering anti-racism training to a private or public sector organization.

The Bidder should submit project experience to demonstrate compliance to this requirement, each project must be completed by the date of bid closing.

For the purpose of this criteria, projects submitted for [Mandatory Criterion 1] MC1 can be used

0 point: No training program

5 points: 1 training program

10 points: 2 or more training programs

10 points
Proposed resource(s) experience and qualifications

R2. The Bidder’s proposed instructor(s) resource should hold a professional certification in Individual Coaching, Executive Coaching or an equivalent certificate from an accredited organization.

The Bidder must submit a copy of the certification(s) with its proposal to demonstrate compliance to this requirement.

Yes = 3 points

No = 0 points

3 points

R3. The Bidder should demonstrate its proposed instructor(s) in [Mandatory Criterion 3] MC3 has additional experience above the minimum experience identified in [Mandatory Criterion 4] MC4 within the past 60 months from date of bid closing.

The Bidder must submit all project experience to demonstrate compliance to this requirement, each

project must be completed by the date of bid closing and include the following information

to be used at the

discretion of the CRA to confirm experience:

a) Client organization

name;

b) Description of the project;

c) Start and end date of the training services

offered (month and year); and

d) The total number

of days of training for each period identified

in (d).

Each instructor will be scored separately. The total number of points obtained for each instructor will be summed and divided by the total number of instructors.

2 points: ≥ – 11-15 training days

4 points: ≥ 16-20 training days

6 points: ≥ 21-25 training days

8 points: ≥ 26-30 training days

10 points: ≥ 31 training days

≥ means Greater than or equal to

10 points

52. The total maximum score possible for the three rated criteria was 23 points. For criterion R2, bids would either receive three points for demonstrating compliance with the criterion or zero points for not demonstrating compliance. There was no minimum score specified for any individual criterion, meaning a bid scoring zero points for any individual criterion could still achieve a score required to be considered technically responsive and would not be disqualified from further consideration. Points were heavily weighted towards criteria R1 and R3, which made up 20 of the possible 23 points. Rated criterion R2’s maximum score of three points, represented just 13% of the maximum potential technical score.

53. The basis of selection stated in the RFP was the highest combined rating of technical merit and price, with 60% of the score coming from the technical component (that is, the score from the three rated criteria) and 40% based on the bid price. This scoring methodology meant that, when both technical merit and bid price were taken into account, rated criterion R2 represented 8% of the total overall score.

54. In order to determine best value to Canada, evaluation criteria become necessary benchmarks against which bids are measured. As was described in the RFP, if at any point during the solicitation process a bidder requires clarification of, or has concerns with, any part of the RFP, including evaluation criteria, they can submit enquiries in writing to the Contracting Authority.

55. Regarding the process to submit enquiries, instructions to bidders were detailed in Part 2, section 2.4 Enquiries—Bid Solicitation of the RFP, which stated:

All enquiries must be submitted in writing to the Contracting Authority no later than five (5) calendar days before the bid closing date. Enquiries received after that time may not be answered.

56. To score three points, rated criterion R2 required the proposed resource to have “professional certification” in either “individual coaching” or “executive coaching.” R2 then goes on to allow, “an equivalent certificate." This allowed for the certification to be equivalent to a certification in “Individual” or “Executive” coaching.

57. Rated criterion R2 was not questioned or challenged by any of the potential bidders, including the Complainant, at any point during the solicitation process question period.

Relevant Canadian International Trade Tribunal Decisions

58. It is a well-established principle that government institutions may create technical requirements for their solicitations, so long as they reflect the legitimate operational requirements of the procurement (PR 2016 - 021, Para. 53). Additionally, criteria that do not reflect such requirements are impermissible (PR 2016—021, Para. 53), and requirements cannot be discriminatory, impossible to meet or otherwise unreasonable (PR 2020—064, Para. 39).

59. In this context, a “legitimate operational requirement” is a “function, feature or any other requirement” that the purchaser requires to fulfill its needs and achieve its desired end results (PR 2020—064, Para. 37). However, government institutions are given significant leeway in establishing their requirements. In Ontario Inc. dba Brion Raffoul v. Department of Public Works and Government Services (PR 2020—064), the Canadian International Trade Tribunal (CITT) ruled that government institutions have a broad power to define their own procurement needs, provided that they do so reasonably and in accordance with trade agreements.

60. Therefore, so long as rated criterion R2 reflects CRA’s legitimate operational requirement, and the requirement is reasonable, it is permissible. In this case, CRA explicitly stated its reason for integrating criterion R2 in its response letter to this complaint, as follows:

As the training required was specific to executives and was intended to enable them to lead, influence and coach their respective employees and managers in anti-racism, awarding points to bidders providing facilitators with a professional certification was deemed to be a value-added element to the CRA.

This reasoning also allows the criterion to reach the standard of reasonableness, as it is not arbitrary, and is compliant with applicable trade law.

Finding—Issue 2

61. The Procurement Ombud found that the requirement in rated criterion R2 for bidders to hold a professional certification was not unreasonable, as it reflected legitimate operational requirements and was neither arbitrary nor impossible for bidders to meet.

Issue 3—Was CRA required to incorporate a requirement to provide at least one instructor with lived experience, and who is a member of Black and/or Indigenous, First Nations and Metis communities, into the Technical Evaluation?

62. The Complainant stated:

The RFP had a specification where it was looking for a Facilitator from a historically minoritized community that had lived experience related to the subject matter as shown in the following excerpt:

“The Contractor’s proposed instructor resource(s) delivering the training should be a member of the Black and/or Indigenous, First Nations, Métis communities and have lived experience related to the subject of the training content described further in the Statement of Work. If two instructors are proposed, at least one of the instructors should have this criterion to deliver the training.”

Despite this specification, some of the companies that were invited to bid requested this to be overturned due to the hardship involved in finding a Black Facilitator, and the contracting authority allowed this.

[…]

The issue we have pertaining to this allowance directly surrounds discrimination. Specifically, how can a White person or Person of Colour who is not Black provide anti-Black racism training without lived experience? Further, how can they ensure that they are creating a safe space where Black staff are psychologically protected, without being a member of this community? Without this psychological safety, there is the potential for more discrimination to occur when people are told that their experiences do not exist or are not valid.... The questions and responses in the SIIB RFP bid process clearly demonstrate this lack of understanding about the varied forms through which systemic racism operates.

There are significant research and evidence to show that People of Colour and those that are othered have systemic racism experiences that vastly differ from those who are Black and Indigenous. This is a key factor in understanding and engaging in this work. The request that was granted to allow for the facilitation of anti-racism training by those who are not Black or Indigenous, will likely lead to experiences across different groups of people who are experiencing different forms of racism being treated as comparable. This itself is a form of racism through not acknowledging and understanding the nuances of racism, which will ultimately lead to causing harm to both those who are Black and Indigenous. For the SIIB to allow this amendment, it is perpetuating the very racism that anti-racism efforts, such as this very project, are trying to eradicate.

The questions and responses in the SIIB RFP bid process clearly demonstrate this lack of understanding about the varied forms through which systemic racism operates. Not being clear about nor understanding the many manifestations and the various levels of racism which play into the experiences that different races, ethnicities, and all historically minoritized communities experience also minimizes the racism Black and Indigenous people experience. As the bid requested, being both Black and or Indigenous with this particular lived experience was a key requirement for this work. To adjust this stipulation and then hire a White-owned and run organization to execute the work without that lived experience and knowledge of the various levels of racism, perpetuates the ongoing issues that this work aims to change. It also takes work away from equity deserving groups, in particular those who are Black and or Indigenous and are competing against White owned and run companies.

63. The CRA responded to OPO:

While the CRA did note a preference for facilitators to be from specified unrepresented groups in the [Statement of Work] that formed part of the solicitation, this was not something that was included as part of the mandatory nor point-rated criteria and had no bearing on the award of a contract. The evaluation criteria (both mandatory and point-rated) focused on the experience by the bidder and its proposed facilitators in developing and delivering anti-racism training for private or public-sector organizations and included requirements supporting the delivery of bilingual sessions.

Additionally, the solicitation was for anti-racism and anti-discrimination training in general, and not exclusively for anti-Black or anti-Indigenous racism training, which is why the RFP was amended to clarify that companies bidding facilitators who do not identify as members of these specified communities would still be evaluated equally and considered for contract award.... This ensured that facilitators who did not identify as Black or Indigenous, but who were persons of colour or members of other underrepresented groups may also have lived experiences dealing with racism were equally considered.

Analysis—Issue 3

64. Section 2.1 “Scope of Work” under “Annex A—Statement of Work” of the RFP included the following:

The Contractor’s proposed instructor resource(s) delivering the training should be a member of the Black and/or Indigenous, First Nations, Métis communities and have lived experience related to the subject of the training content described further in the Statement of Work. If two instructors are proposed, at least one of the instructors should have this criterion to deliver the training.

65. During the solicitation period, the CRA responded to two questions pertaining to the above quoted statement from Section 2.1 “Scope of Work” under “Annex A—Statement of Work” of the RFP. The questions (Q) from potential bidders and answers (A) from the CRA were published in solicitation Amendment 001, dated October 24, 2023:

Q2. In Annex A, Statement of Work, under section 2.1 "Scope Of Work," it is outlined that the Contractor’s proposed instructor resource(s) delivering the training should be a member of the Black and/or Indigenous, First Nations, Métis communities and have lived experience related to the, subject of the training content described further in the Statement of Work. We kindly request the Crown to confirm whether individuals who do not identify as members of these specified communities will still be evaluated equally and accepted to work on this initiative.

A2. Individuals who do not identify as members of these specified communities will still be evaluated equally and accepted to work on this initiative.

Q4. Annex A: Statement of Work—requires that “The Contractor’s proposed instructor resource(s) delivering the training should be a member of the Black and/or Indigenous, First Nations, Métis communities and have lived experience related to the subject of the training content described further in the Statement of Work.” Would the CRA kindly consider removing the scope of this requirement for the instructor or instructors to be a member of “the Black and/or Indigenous, First Nations, Métis communities and have lived experience.” The scope of work regarding the subjects of workshops is not clear and would be determined after the stakeholder surveys and hence this criterion would risk eliminating a lot of individuals who have the relevant past experiences and skills. Also, the criterion itself excludes individuals who do not identify as Black and/or Indigenous but identify as a person of colour and/or have had racism, xenophobia and/or other related lived experiences.

A4. Individuals who do not identify as members of these specified communities will still be evaluated equally and accepted to work on this initiative.

66. CRA’s response to both Q2 and Q4 states that “individuals…will still be evaluated equally…” In the absence of these responses, potential bidders could have interpreted the statement in the SOW to mean that lived experience and being a member of an under-represented community would be assessed during bid evaluation. However, at no point was the RFP amended to include this as an evaluation criteria, and at no point was this questioned further during the solicitation period.

67. When the bids were evaluated, CRA did not consider lived experience and group membership as part of its technical evaluation of the bids. In this respect, CRA’s action was appropriate, because taking lived experience and group membership into consideration (when neither was identified in the evaluation criteria) would have constituted the use of “undisclosed criteria” and brought into question the fairness of the procurement process. OPO did note that multiple bidders included descriptions of the proposed instructors in their technical bids, demonstrating that they were a member of one of the communities specified in the SOW.

68. Given the nature of the services being sought, the high-level governmental initiatives on diversification of the federal supply chain and lack of explicit policy in this area, there is a great deal of uncertainty as to how departments are to incorporate socio-economic considerations and criteria in their procurements. While there was no legal obligation for CRA to imbed the requirement regarding lived experience and group membership in the SOW, more thought should have been given to its initial inclusion in the SOW and ultimate exclusion from the evaluation criteria. The Ombud seeks to provide clarity in this type of situation by noting that mandatory and rated requirements should never be established in the SOW, and that until such time as CRA develops its own policy on social procurement, it should consult and voluntarily align with PSPC’s Policy on Social Procurement when incorporating social procurement requirements into a solicitation.

Policy on Social Procurement

69. PSPC’s Policy on Social Procurement, which took effect on May 3, 2021, was developed for the PSPC Acquisitions Program to leverage purchasing power and enhance best value in procurement by providing a framework for the inclusion of socio-economic measures and objectives in procurement, thereby advancing the Government of Canada’s socio-economic policy goals.

70. PSPC has been working towards expanding the Diversity and Inclusion lens in procurement for several years since launching their Program and Policy on Social Procurement. For example, in June 2021, as part of their Supplier Diversity Action Plan, PSPC launched a Request for Information (RFI) inviting Black-owned or led businesses to complete an online questionnaire to provide information about their business and their experience with federal procurement. The results of the RFI were intended to help develop initiatives to increase the participation of Black owned or led businesses in federal procurement opportunities.

71. PSPC’s Program on Social Procurement is also expanding to work with other departments and Treasury Board Secretariat to explore government-wide social procurement programs. As more departments and agencies become familiar with and understand social procurement, it is expected that future federal opportunities will start to incorporate a diversity and inclusion lens into their procurement strategies.

72. While CRA’s Procurement and Corporate Social Responsibility Directive does not include guidance on social procurement, requirements under PSPC’s Pro Services supply arrangement would be subject to PSPC’s Policy on Social Procurement, if procured by PSPC. When opting to use a PSPC procurement instrument, other departments are encouraged to adopt the related policies on a voluntary basis, to avoid further confusion and promote advancement in this important area.

Finding—Issue 3

73. The Procurement Ombud found that CRA was not required to incorporate a requirement to provide at least one instructor with lived experience, and who is a member of Black and/or Indigenous, First Nations and Metis communities, into the Technical Evaluation criteria.

74. However, taking into consideration the government-wide initiatives respecting social procurement, and having stated in the SoW that the proposed instructor resource(s) delivering the training should be a member of the Black and/or Indigenous, First Nations, Métis communities and have lived experience related to the subject of the training, the CRA could have included the requirement as an evaluation criterion as a bona fide socio-economic measure in achieving overall best value while meeting socio – economic objectives.

Issue 4—Was CRA required to include a validation mechanism to ensure diverse ownership of the successful bidder?

75. The Complainant stated:

In meeting with the procurement team, (complainant) wanted to learn more about how the successful contractor was selected. Specifically, we wanted to understand how a White-owned, multi-million-dollar government-awarded contracting company with no publicly available information about their Black Facilitators was chosen for this project. The response we received to this question was that the procurement team does not do any research on the company that wins, but rather bases their selection solely on the scoring in relation to the requirements that they are given by the client…

While (complainant) recognizes the value in having a blind process and evaluating bids using a scoring method, this becomes an area of concern when (1) the scoring is flawed and inherently biased against racialized communities … and (2) there are no validation mechanisms to which the bids are evaluated against. The presence of validation mechanisms would not only ensure that the information shared by the bidders is accurate and representative of their service and product offerings but would also improve the integrity of the process.

76. The CRA responded to OPO:

The solicitation did not include any mandatory or point-rated criteria specific to the ownership of the bidding company nor it’s facilitators and so there was no requirement to specify any validation mechanisms relating to such criteria.

While the GOC strives to also increase business opportunities for other under-represented groups, the only GOC-wide procurement program that currently exists is specific to Indigenous businesses. .... There are no GOC mechanisms in place for federal procurement entities to validate that a particular business qualifies as being owned or operated by an individual(s) from an under-represented group.

Analysis—Issue 4

77. The solicitation for this requirement was not issued pursuant to a set-aside program, such as the Government of Canada’s Procurement Strategy for Indigenous Business (PSIB). A PSIB set-aside is mandatory in instances where procurements are destined for an area, community or group in which Indigenous people make up at least 51% of the population and where the Indigenous population will be the recipient of the good or service. Alternatively, a conditional PSIB set-aside can be used when departments are unsure if there is Indigenous business capacity to fulfill the operational requirement.

78. CRA determined that this requirement did not meet the conditions of a mandatory PSIB. A search for qualified Indigenous suppliers was performed prior to solicitation to determine capacity for a conditional PSIB. This search was unsuccessful in finding Indigenous-owned businesses that could meet this requirement and as a result, the RFP was not issued as a PSIB set-aside.

79. Given the solicitation was not issued under the PSIB, there was no requirement to validate that bidders qualified under the terms and conditions of that program, or to validate whether bidders were diverse-owned. Further, there is no formal Government of Canada set-aside program like the PSIB to direct contracts to Black-owned businesses. Therefore, that option was not available to CRA.

80. Additionally, none of the mandatory or rated criteria pertained to the nature (that is, diversity of ownership) of bidders.

Finding—Issue 4

81. The Procurement Ombud found:

  1. The solicitation was neither a mandatory nor conditional set-aside for Indigenous businesses,
  2. No formal mechanism exists to direct contracts to Black—owned or led businesses, and
  3. CRA was not required to include a mechanism to ensure the diverse ownership of potential bidders because the solicitation did not include any mandatory or point-rated criteria specific to the ownership of bidders.

Conclusion

82. The Procurement Ombud found merit in the first issue raised as the initial procurement process followed by the CRA prior to launching the competitive RFP was wrongful and resulted in misleading communications with the Complainant. Based on the multiple 1 on 1 communications spanning several months including exchanges regarding the statement of work and pricing, it was reasonable for the Complainant to initially believe a contract would be directed to them up until March 10, 2023.

83 The Procurement Ombud did not find merit in the second issue raised and found that rated criteria R2 for professional certification was not unreasonable.

84. The Procurement Ombud did not find merit in the third issue raised as the CRA was not required to incorporate a requirement to provide at least one instructor with lived experience, and who is a member of Black and/or Indigenous, First Nations and Metis communities, into the Technical Evaluation criteria. However, given the government-wide commitment to social procurement and supporting statements in the Statement of Work, CRA could have done so as a bona fide socio-economic measure to achieve overall best value while meeting socio – economic objectives.

85. he Procurement Ombud did not find merit in the fourth issue raised. The CRA was not required to include a mechanism to ensure the diverse ownership of the successful bidder.

Other Observations

86. This complaint brings to light the value of diversity and inclusion considerations within Federal procurement practices and highlights the need for a government wide policy on the issue. In three of the four issues considered, the CRA followed the rules in place at the time of contract award, but the outcome of the complaint remains problematic in his eyes of the Ombud. The Government should establish an effective government wide framework to instruct departments on how to implement high-level initiatives set forth regarding diversifying the federal supply chain. In the interim, the CRA should voluntarily adopt the PSPC social procurement policy framework when using PSPC tools. Failure to do so will lead to more uncertainty and potentially many other similar complaints. While the Procurement Ombud has no power to make or set policy in this area, the need for clarity has never been greater.

87. The complaint also highlights a concern of potential barriers when participating in Federal procurement processes. Additional consideration for opportunities to reduce such barriers and seek to advance the fair treatment of and promote business with historically marginalized groups can foster diversity, equity, and inclusion within the Federal procurement landscape.

It was alleged that content from the Complainant’s proposal was included in the RFP Statement of Work without permission

88. The Complainant stated:

During discussions with the SIIB leading up to the implied award of the contract… the SIIB had requested materials from (the Complainant) during a meeting that took place between [the Complainant’s employee] and SIIB representatives on September 27, 2022, which [the Complainant’s employee] then provided on September 28, 2022. These documents … were then used by SIIB to create the eventual RFP Bid requirements and included (complainant’s) proprietary processes, structure, strategy, and language....

We would like to note that the information from the proposal and the statement of work provided to the SIIB are not available on our website or via any publicly available sources. However, the RFP currently includes specifics from our business plan and its processes, including the use of distinct language, that they could only have received from us confidentially. At no point were we informed or consulted with regarding the use of our materials being integrated into the RFP. This becomes a concern for us as an organization as our business plan and processes are unique to our organization, which has now been shared with 15 other companies, some of which are our direct competitors.

89. The CRA responded to OPO:

While the SOW…did include some text that was similar to text that had been included in a proposal received by SIIB from the Complainant, as well as to a previous directed contract awarded by the CRA to the Complainant, there were significant differences throughout. Additionally, the text in question (and noted as being confidential by the Complainant) is fairly generic in nature and not proprietary to the Complainant. Some of the text noted as confidential to the Complainant…is also published on the Complainant’s website, making it publicly available and therefore, not confidential.

Additionally, the proposal that was received from the Complainant was not labeled as being confidential nor did the Complainant advise the CRA that the contents of its proposal were confidential at any time. It is also relevant to note that the same content was included in the initial solicitation…for which the Complainant submitted a bid. At no time during the initial solicitation period through to the retendered solicitation (and related debriefing sessions) did the Complainant advise the CRA of their concerns regarding the alleged use of their confidential information.

90. The Complainant alleged that confidential business information contained in the proposals provided to CRA under the guise of a non-competitive contract, and which was not otherwise publicly available, was replicated by CRA and incorporated into the resulting Statement of Work included in the competitive RFP. This information was shared with competitors, without consultation or permission from the Complainant. Seven examples of replicated information were provided in the complaint.

91. The CRA has acknowledged that while some components of the SOW may have been similar to the proposal, the text in question is generic and not otherwise proprietary. CRA claims that this language is publicly available on the complainant’s website. CRA also noted that the proposal was neither marked confidential, nor did the complainant raise this issue once the RFP was released.

92. There are three main issues that must be highlighted. First, CRA should not consult suppliers on the creation of a Statement of Work for a competitive process outside a formal and transparent process, or risk the perception of favouritism. Second, CRA should exercise due diligence when preparing Statements of Work for competitive processes to ensure the contents are not tailored to a unique supplier and are written in a neutral manner that can be met by as many suppliers as possible. Third, CRA must refrain from using any proprietary information in its solicitation documentation without the prior consent of the owner of the proprietary information. This allegation involves intellectual property rights. The Procurement Ombud does not have the mandate to investigate an alleged breach of intellectual property rights.

It was alleged that a clear timeline was not provided for the required services

93. The Complainant stated:

There was no timeline provided for the evaluation of this RFP. This creates potential for concern as vendors are required to submit their bids in a specified timeframe, yet the client is not bound by any timeline for their response. Furthermore, this lack of evaluation timeline is of particular concern with this RFP as when it was originally issued, there was a start date at the end of March 2023 and a project end date of May 2024, thus implying a total project timeline of 14 months (inclusive). However, as this evaluation of the reissued RFP was ongoing for over a month while the project had a contract end date of December 2024, it brings into question how a project with the same scope and size and the initial RFP can be completed within a timeline that has been dramatically shortened by 2+ months. Apart from the timeline needed to complete the project work, this lengthily turnaround time causes issues for firms in terms of resource allocation. . Is it reasonable to expect firms to have resources being unutilized as they await RFP evaluations that exceed a month?

94. The CRA responded to OPO:

Page 3 of solicitation…clearly noted that the retendered solicitation canceled and superseded the previous bid solicitation…As such, the project timeline used for the initial solicitation cannot be used to estimate or compare the level of effort or timelines associated with the retendered solicitation.

As it relates to the complaint that no timeline was provided for the evaluation of the bids, while the solicitation document did not explicitly specify dates for each of the phases in the evaluation process, the steps were clearly outlines and regular email updates were provided to all bidders during the evaluation process....encompassed the holiday period, the length of time it took to evaluate the bids, notify bidders of the results and award a contract was, based on our experience, within what would be expected for a solicitation of this nature.

95. The Complainant stated that no timeline for the evaluation was provided. However, Section 6.4.1 “Period of the Contract” of the Resulting Contract section of the RFP stated that “The period of the Contract is from the date of Contract award to December 31, 2024, inclusive”. The timeline for evaluation became a concern to the Complainant as the length of the evaluation period had a direct impact on the amount of time allocated to delivering the services once the contract was awarded, potentially impacting project scope and resource availability.

96. The RFP was developed using the Medium Complexity procurement template for Services. Section 2.1 “Standard Instructions, Clauses and Conditions” of the RFP incorporates the 2003 (2022-03-29) “Standard Instructions for Competitive Requirements” by reference, forming part of the bid solicitation package. Standard Instructions, section 05 (2018-05-22) “Submissions of Bids” states the following:

Bids will remain open for acceptance for a period of not less than 60 days from the closing date of the bid solicitation, unless specified otherwise in the bid solicitation. Canada reserves the right to seek an extension of the bid validity period from all responsive bidders in writing, within a minimum of 3 days before the end of the bid validity period…

97. The standard Submissions of Bids clause, shown above, was revised in the RFP to prescribe a bid validity period of 120 days. The standard 60 day period is designed to align with a typical timeframe required for bid evaluation of a medium complexity requirement.

98. While CRA maintained regular written communications with bidders during the evaluation period which took approximately 30 days and completed the evaluation within a reasonable timeframe, more thought should have been given to extending the bid validity period to 120 days due to the potential negative impacts to prospective suppliers.

99. That being said, no suppliers invited to bid including the Complainant sought clarification or raised concerns regarding the project timeline during the solicitation period.

Compensation

100. 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. As a competitive process was held and the Complainant submitted a bid, the Ombud may recommend payment of compensation in accordance with subsection 13(1) of the Regulations.

101. At OPO’s request, the Complainant provided the costs it incurred in preparing its bid in the amount of $7,600.00.

Recommendation

102. In accordance with sub-paragraph 13(1)(b) of the Regulations, the Procurement Ombud recommends CRA pay compensation to the Complainant in the amount of $7,600.00, for costs incurred in preparing its bid.

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