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A hospital, a mole and bad records:
Bidders are watching your evaluation process
Denis Chamberland
The senior executive from an IT company had just called the hospital's lead procurement professional. He promised the letter would be arriving shortly—not just any letter, but a letter of complaint setting out in detail the long litany of deficiencies that had afflicted a just-completed procurement process. Those deficiencies were numerous, and not at all trivial.
My client, the IT company, wasn't the highest-ranked bidder in the competition (an irritant in its own right), but what really ticked off the company was the belief that the competition was not run thoughtfully and with the level of diligence the process deserved.
Among other grounds of complaint, my client suggested there was procedural unfairness, based on intelligence received from a 'mole' inside the hospital. The mole said the chair of the hospital’s evaluation committee, who was an external advisor, had forwarded her personal evaluation records to all the other members of the committee, ahead of the consensus meeting that was scheduled the following week.
Apparently, instead of conducting their own proposal reviews and individually recording their scoring results, some members of the committee relied entirely on the view of that single evaluator. The evaluation process was a sham, the IT executive said, and we set out to prove it.
Evaluation records
It may seem like a minor administrative detail, but maintaining accurate records of an evaluation process is a best practice in procurement, one that can loom large when an unsuccessful bidder sets its sights on proving to the buyer its procurement process is flawed, biased and generally designed to favour an inferior competitor.
The issue may come to light through the grapevine, as it did in the above anecdote, or it may surface during a debriefing session when it can become clear to the challenging supplier that the buyer did not run a scrupulous evaluation process.
Rigorously requiring each evaluator to maintain his or her individual evaluation records also brings the added advantage of prompting each person to perform the evaluation exercise, rather than relying on the work of others. More minds applied to the task are more likely to produce better value for the buyer, and make the process much more defensible.
Legal duty
Keeping accurate evaluation records can also be a legal requirement, as is the case under the North American Free Trade Agreement (NAFTA). A decision of the Canadian International Trade Tribunal (CITT) illustrates the point.
In its 2002 decision in Re Hewlett-Packard (Canada) Ltd., the CITT stated "... the evaluators' worksheets were an integral part of the evaluation process and constituted part of the 'complete record' regarding the procurement and part of the 'written record of all communications'."
In the view of the CITT, the buyer's failure to maintain a complete set of records undermined the integrity of the procurement process. The CITT ordered the termination of the contract awarded to a competitor of the complainant.
While the case was decided under NAFTA, there's no reason to believe any court in Canada would not come to the same conclusion. Plus, proper record keeping is likely to keep moles less busy!
Denis Chamberland, partner with the law firm Aird & Berlis LLP, is a procurement specialist, and works on public-private partnerships, IT and outsourcing projects. He may be reached at (416) 865-3078 or dchamberland@airdberlis.com.
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