Tribunal Rules on Posting, Specs, Evaluations, and Debriefs

By: Anna Krol

In its April 2018 determination in Vintage Designing Co. v. Canadian Museum of History, the Canadian International Trade Tribunal elaborated on some of the new trade treaty requirements under the CFTA by ruling on a series of complaints contained in a bid protest regarding posting of notices, biased specifications, unfair evaluations, and proper debriefing procedures.

The case, which was one of the first rulings of the Tribunal under the CFTA, dealt with the procurement for graphic and web design services. While the Tribunal ultimately rejected all of the complaints, its assessment of the trade treaty duties in question remains instructive.

For notice posting, the complainant challenged the use of the particular posting platform, but the Tribunal reminded the complainant that the government fulfilled its duties under the trade treaties by posting the notice and solicitation on an official electronic tendering service and was not under an obligation to post on a website preferred by the complainant.

The Tribunal also dismissed the complaint of biased specifications and commented that the government was not under a duty to issue solicitations that were in line with a supplier’s operational or business abilities as long as they constitute a legitimate operational need.

Looking into the evaluation records, the Tribunal found that the evaluations were conducted fairly and highlighted the importance of keeping complete and detailed evaluation records to be able to dispel any future evaluation challenges and bias allegations. The Tribunal found no issues in this area.

The Tribunal further expanded on debriefing duties under the trade treaties by confirming that debriefs conducted over the telephone as oppose to in person were adequate to fulfill the debriefing duties under the trade treaties.

The Tribunal therefore dismissed all the heads of complaint and the contract award was upheld.