Award Struck Down Due to Non-Compliant Bid

By: Anna Krol

In its May 2018 determination Dynamic Engineering Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal struck down a contract award after determining that the government improperly awarded a contract to a non-compliant bidder. The case, which was one of the first rulings of the Tribunal under the Canadian Free Trade Agreement, dealt with an RFP for the provision of repair and overhaul services for turbochargers. The Tribunal found that the government breached the trade treaties by improperly awarding the contract to a bidder that failed to satisfy the mandatory technical criteria and comply with essential criteria listed in the tendering documents. In considering the remedies, the Tribunal terminated the awarded contract and recommended a reissuance of the solicitation. The Tribunal declined to award lost profits since the complainant was unable to prove a causal connection between the improper award and losses suffered as the complainant was ineligible for award since it failed to comply with the mandatory technical criteria and was, in any event, now eligible to rebid after the struck-down contract award.