In a November 2022 bid protest ruling in Telus Communications Inc. v. Alberta, an arbiter dismissed a losing bidder’s complaint and upheld the government’s use of a rectification process under a negotiated request for proposal (NRFP). The dispute dealt with an NRFP for telecommunications services. The complainant brought a bid protest under the Canadian Free Trade Agreement (CFTA), challenging the rejection of its bid.
While the arbiter dismissed most of the grounds of complaint as time-barred due to the 10-day limitation period established under Western Canada’s bid protest mechanism, the issues that were considered on the merits remain instructive for institutions using NRFPs.
The arbiter found that the alternative pricing model proposed by the complainant fell outside of the parameters of the NRFPs pricing structure. While the complainant alleged that “Alberta failed to specify within the NRFP that alternative bid models would not be evaluated”, the arbiter disagreed, finding that any proponent reading the NRFP should have understood the pricing requirements. As the arbiter concluded, “a proponent seeking to make an alternative offering with different pricing model would need to be prepared to complete the pricing tables or defend their approach in a compliant way.” Contrary to the complainant’s assertions, the arbiter found that there was no “refusal” on the part of Alberta to understand the alternative proposal, rather “if anything there was a refusal of Telus to acknowledge the defined and transparent measurement criteria established by Alberta in the NRFP.”
The arbiter also rejected the complainant’s assertion that the government’s rectification process breached the CFTA, stating that “I disagree with Telus’ position that the simple conduct of the rectification meetings with Alberta represent offside activity contrary to the CFTA.” Rather, as the arbiter ruled, “the rectification meetings and discussions were conducted with a view to provide a best-efforts attempt to assist Telus in finding a way to express their proposal details in a way that could be comparatively and fairly scored in comparison to other proponents.”
Further, the arbiter found that “there is no evidence that Alberta provided any information to Telus or to any other shortlisted proponent to give that proponent an advantage over others.” In fact, the arbiter found “no evidence that any changes were made to the scoring formulae, pricing tables or any other aspect of the NRFP by Alberta which would have occasioned the need to provide an update to all other proponents”. The arbiter also found that “Telus was not directed as to how to fill in the numbers for their Rectified Proposal – their choice to respond to the rectification request, and how to do it, were their own.”
The arbiter therefore ruled that the government handled the rectification process appropriately under the NRFP and awarded complaint costs in the amount of approximately $13,500 against the losing complainant. As this case illustrates, NRFP rectification procedures are legally defensible when properly applied. The onus remains on bidders to cure their bid defects or face disqualification.
The ruling, which illustrates the importance of adopting formal evaluation protocols, and tendering templates including Negotiated RFPs that enable transparent and defensible rectifications, will be covered in the Dealing with Compliance Rectifications module of our new Negotiated RFPs in the Canadian Public Sector certificate program that runs in May and returns in November. Please see our current training schedule for more details.
