“Single-Source Emergency” Struck Down By Tribunal

By: Anna Krol

In it’s June 2018 determination in ALS Canada Ltd. v. Statistics Canada, the Canadian International Trade Tribunal struck down a sole-source since reasonable alternatives existed for the government’s mandatory technical requirement and no extreme urgency existed for the procurement. The case, which was one of the Tribunal’s first rulings on the new Canadian Free Trade Agreement and the Comprehensive Economic Trade Agreement, dealt with a procurement for the provision of wastewater testing for evidence of cannabis.

The Tribunal rejected the government’s assertion that the selected supplier was the only service provider accredited to perform the required work and found that reasonable alternatives were available to warrant an open competition. With respect to the grounds of extreme urgency, the Tribunal found that there was a failure to plan on the part of the government, which resulted in delays to the start of the procurement and that such planning delays did not constitute extreme urgency under the trade treaties. The Tribunal ordered that the work be re-procured through an open competition. It also awarded the complainant one quarter of its lost profits, along with its complaint costs.