This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In a May 2019 Canadian Free Trade Agreement (CFTA) arbitration ruling in the matter of Parker Johnston Industries Ltd. v. The Calgary Board of Education, an arbiter determined that the complainant filed the complaint after the applicable ten-day limitation period and ruled that the complainant was time-barred from advancing the protest.
The dispute involved a British Columbia contractor’s challenge to local warranty requirements contained in a roof repair solicitation issued by The Calgary Board of Education (School Board). However, the School Board brought a procedural challenge, asserting that the complainant had failed to file a timely complaint. The arbiter agreed. After ruling that the limitation period under the bid protest mechanism begins to run from the point in which the complainant knows or ought to have known about the treaty infraction, the arbiter found that the complainant failed to file within ten days of knowing of the alleged infraction.
As a factual question, the arbiter rejected the complainant’s assertion that the parties were in ongoing “warranty discussions” and that the limitation period therefore did not begin to run during that period of uncertainty. Rather, the complainant knew of the School Board’s warranty requirements during those ongoing written communications and should have brought a challenge within ten days of first knowing about the restrictive practice.
As this case illustrates, bid protest rules are typically subject to strict limitation periods designed to encourage proactive in-process resolutions and in-process rectifications of alleged treaty infractions. While these strict limitation periods put potential complainants under strict time pressures to file complaints, they also place purchasing institutions under strict time pressures to respond to those complaints while balancing the demands of an ongoing tendering process.
