In its June 2023 determination in Steeple Incorporated v. Department of National Defence, the Canadian International Trade Tribunal dealt with a bid protest that was launched over the federal government’s failure to properly manage its pre-bid addenda procedures and post-award debriefing communications.
The dispute dealt with a tender call for the purchase of “non-metallic hose”. During the pre-bid question-and-answer process, the government stated that the hose “must be shipped in full length straight pieces and the Contractor must ensure that they are not rolled, pinched or collapsed as this breaks the internal coating.” The process then proceeded through the bid and evaluation stage and culminated with a contract award. As the Tribunal summarized, during a post-award written debriefing process, the government provided a losing bidder with “a series of what appeared to be shifting explanations for the rejection of its bid”, which ultimately led the bidder to file a bid protest.
More specifically, after first notifying the bidder that it was non-compliant for failing to meet the Canadian content requirements (which were never included in the RFP), the government retracted its first explanation and then notified the bidder that its bid was compliant but did not achieve the highest ranking “under the evaluation methodology described in this solicitation.” When the bidder asked what scoring criteria were used in what appeared to be a low-bid award process, the government failed to answer the question and instead responded by stating that it could not disclose pricing information.
In that same email, the government also informed the losing bidder that shipping the item coiled “was discussed with our TA and so long as the coil is wrapped around a solid spool, without kinks – it would be acceptable.” This raised further concerns for the losing bidder since “there was an apparent discrepancy between the shipping requirements for the hose as described by the RFP, what DND was prepared to accept, and what shipping method was actually being used by the winning bidder.” Since the losing bidder had priced its bid based on shipping the hose in flat 35-foot lengths, which was more expensive than shipping the hose coiled, it was concerned that it had been put at a disadvantage if the government ultimately accepted bids based on coiled hose delivery. This led to the formal bid protest.
Turning to the fairness of the evaluation process, the Tribunal found that the government evaluators only discovered that their standard Canadian content criteria were omitted from the RFP after their initial evaluation. This required them to re-evaluate the bids without applying those unstated criteria. Further, due to an internal miscommunication during the transfer of the procurement file, the evaluators were unaware of the amendment to the delivery requirements that called for hose to be shipped flat rather than coiled. This led to the post-award miscommunication with the losing bidder regarding acceptable delivery methods. However, notwithstanding these miscommunications, the Tribunal concluded that the complainant had ranked seventh and that the award was ultimately made to the lowest compliant bidder in accordance with the amended RFP rules. It therefore found no flaws in the ultimate award decision.
Turning to the debriefing itself, the Tribunal found that “the debriefing error in this case was not narrow in scope or otherwise minor”. Rather, the “series of cascading miscommunication errors” resulted in explanations to the bidder that were “shifting and contradictory.” The Tribunal found that this lack of transparency undermined the bidders “confidence in the fairness and integrity of the procurement.” As the Tribunal concluded, “if the correspondence from DND had been more transparent, it is likely that this complaint would not have been filed.”
However, since the errors had no impact on the fairness of the bidding process or resulting contract award, the Tribunal did not order a contract cancellation or lost profits but only awarded nominal bid protest costs to the complainant.
The ruling illustrates why public institutions should adopt formal drafting and evaluation protocols to ensure that the final version of solicitation documents, including pre-bid addenda, are properly communicated to evaluators before they perform their evaluations. It also underscores the importance of adopting formal debriefing protocols to ensure accurate communications with losing bidders to avoid provoking otherwise avoidable bid protests.
This case study will be featured in the Navigating Debriefing Disclosures and Confidentiality Duties module of our new Fundamentals of Canadian Government Procurement certificate course that debuts in April 2026 and in the Co-Ordinating RFx Design-Planning and Drafting module of our new RFx Drafting in the Canadian Public Sector certificate program that runs in May and returns in November. Please see our current training schedule for more details.
