In case there is anyone out there who still doesn’t understand the importance of complying with every mandatory requirement in a Request for Proposals (RFP), the CITT’s recent decision in Falcon Environmental Services Inc. (CITT File Nbr. PR-2014-061) sends a very harsh message. In all cases, bidders have to identify the mandatory requirements of an RFP, understand and address the mandatory requirements in their bid and be able to demonstrate that they met all of the mandatory requirements if PWGSC ever questions compliance.
Mandatory requirements are a key element of every RFP. To be considered compliant, a bid must meet the mandatory requirements of the RFP when it is submitted. Government entities that create RFPs must clearly identify the mandatory requirements of the RFP. At that point, it is up to the bidders to understand the mandatory requirements and their application so that they can submit a fully responsive bid. As an example of best practice, one of my clients appoints a member of its bid response team to be “mandatory man” for each bid. Mandatory man is responsible for identifying every mandatory requirement in the RFP and for ensuring that each is fully addressed in the bid. None of this should come as a surprise to anyone involved in government procurement.
The issue in Falcon Environmental was whether Falcon Environmental properly submitted its bid to PWGSC. The RFP, which was for the provision of wildlife control services for the Department of National Defence (DND), included a mandatory requirement that bids be submitted to PWGSC`s Bid Receiving Unit in Halifax. The RFP also noted that the wildlife control services being procured would be provided to DND at its Willow Park facility in Halifax.
Falcon Environmental claimed that it used Canada Post’s courier service to send its bid to PWGSC’s Bid Receiving Unit and that the bid was submitted two days before the bid closing date stipulated in the RFP. PWGSC claimed that it never received the bid directly from Falcon Environmental. PWGSC claimed that it found the bid at DND’s Willow Park facility and returned the bid to Falcon Environmental on the basis that it did not comply with the mandatory requirement that the bid be submitted to the Bid Receiving Unit. Falcon Environmental challenged this decision at the CITT, claiming that the bid had been properly filed and was only lost as a result of PWGSC’s mishandling of the bid. Falcon Environmental asked that the CITT determine that its bid had been improperly determined to be non-compliant and that it direct PWGSC to review its bid.
The CITT considered the arguments raised by the parties, but ultimately found against Falcon Environmental on the basis that it did not submit evidence establishing that its bid had been submitted to PWGSC`s Bid Receiving Unit, as required by the RFP.
The merits of the bid were not in issue before the CITT. Falcon Environmental may have submitted the best, low-cost option in response to the RFP. Falcon Environmental may have also submitted its bid in compliance with the mandatory requirement. However, Falcon Environmental appears to have not had evidence at hand to establish that it met this requirement. As a result, Falcon Environmental has lost out on the opportunity to bid on the DND requirement and DND has lost out on the opportunity to engage Falcon Environmental’s services.
On its face, the CITT decision points to one of two potential shortcomings. Either Falcon Environmental did not fully understand the mandatory requirements of the RFP or it did not understand that it bears the burden of proving that it complied with this mandatory requirement. Either way, the CITT’s decision should be treated as a “wake up call” for potential suppliers. It isn’t good enough to know that RFPs include mandatory requirements – it is essential to understand all of them and to be able to prove compliance with each of them. Like it or not, a failure to conform to the mandatory requirements can result in a bid being rejected as non-compliant and the burden falls on a supplier who challenges a PWGSC decision to demonstrate that its bid was fully compliant.
