Bid Challenges
BORDEN LADNER GERVAIS
© 2012 FrontLine Defence (Vol 9, No 3)

When a dispute arises in the context of a federal government procurement, bidders can be forgiven for not knowing where to turn. Depending on the facts of a given case, a disgruntled bidder could potentially seek redress from the Canadian International Trade Tribunal (CITT), the Federal Court or a provincial Superior Court.

Choosing where and when to challenge the procuring entity in question can be a daunting task fraught with peril. If the wrong forum is chosen, or if a limitation period expires, a bidder may be precluded from obtaining – or even seeking – the remedy to which it might be entitled.

Among the factors that a mistreated or unsuccessful bidder must first consider is timing. The deadlines for submitting a Notice of Objection or a formal Complaint to the CITT are a punishing 10 working days from the date on which a bidder knew or ought to have known that there was a problem with the procurement.

By way of contrast, a company has 30 days to challenge a government decision by way of an Application for Judicial Review and as many as two years to file an action for breach of contract.

In view of this tight timeline, a decision about how to respond to an RFP gone wrong must be made as soon as humanly (or corporately) possible. A bidder in that position should always assume that the clock is ticking, and that ‘waiting to see how it all turns out’ could mean abandoning any chance of seeking relief.

As a first step, a bidder should try to identify all of the specific grounds upon which it could challenge the procuring entity’s actions: Did they evaluate the proposals in a manner contrary to the RFP? Are the technical specifications biased in favour of a competitor? Did the evaluation team engage in bid repair or bid shopping?

Once the specific grounds have been identified, the question becomes whether the procurement provisions of the various trade agreements apply – including, but not limited to, NAFTA, the Agreement on Internal Trade, and the WTO Agreement on Government Procurement. If none of the trade agreements apply, the CITT will not have jurisdiction.

Part of this analysis involves looking to see whether the trade agreements apply to the procuring entity and the particular type of goods or services being procured.  If they do, then a bidder must consider whether any of the exceptions apply, including the oft used “national security” exemption or NSE.

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Barbara McIsaac is a member of Borden Ladner Gervais’ Defence and Security Industry Group and primarily practices in the areas of privacy and access to information law. She can be reached at bmcisaac@blg.com
© FrontLine Defence 2012

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