This article is an extract from the 5th edition of Government Procurement.
The application of evaluation criteria can give rise to complex legal proceedings. For example, in its November 2020 decision in Canada Forgings Inc. v. Atomic Energy of Canada Limited, the Ontario Superior Court of Justice determined that the factual, technical, and legal issues raised in a challenge to a government tendering process were too complex for a jury trial. The dispute dealt with a bidding process for the refurbishment of the Bruce “A” CANDU 9 nuclear reactor. Atomic Energy of Canada Limited (“AECL”) received three bids but failed to accept any of those bids during the 180-day bid validity period and, after that period expired, bypassed those bids and decided to deal with a different supplier for its requirements.
One of the bypassed bidders, Canada Forgings Inc. (“CanForge”), brought a legal challenge claiming nearly $20 million in damages. As the Court stated, “given the amount claimed and the nature of the damages, both liability and damages will be significant issues at trial.” In fact, as the court noted, due to the high level of damages claimed, both parties intended to call expert evidence at trial. While the plaintiff brought a motion for a jury trial, the court rejected the motion since the complexity of the issues made a jury trial inappropriate. As the court summarized:
I find that the CanForge SJ Factum provides insight into the many complex factual issues and, more importantly, the numerous and complex technical issues that will have to be addressed at trial. These include
a) whether AECL, as a federal Crown corporation, has complied with the Financial Administration Act, R.S.C. 1985, c. F-11 (the “FAA”), and with its Code of Ethics and Business Conduct;
b) whether “Contract A” relations were created when AECL received bids from three bidders, which is determined based on various factors, as identified in the Paul Emanuelli text, Government Procurement;
c) an understanding of term-of-art tendering terms, performance terms and standards used in the Amended Tender Document referenced in this action;
d) whether the conduct of AECL demonstrated that the tendering process continued beyond the 180 days set out in the tender document, including the implication of the commencement of a “Contract B”; and
e) an assessment of whether the bids submitted to AECL were “technically” compliant and/or improperly rejected or evaluated.
As the court further stated, “I have great difficulty accepting CanForge’s assertion that the evidence in this case is not technical and complex, and that the factual chain of events is straightforward.” The court raised serious concerns “that even with proper instructions, the jury would not be able to fully appreciate and understand the many technical/legal issues that must be understood to achieve justice between the parties”. The court therefore rejected a jury trial and ordered that the case be scheduled for a six-and-a-half-week trial to be heard by judge alone. As this case illustrates, government procurement bid evaluations can give rise to factual, technical, and legal issues that may be too complex for laypersons to adjudicate even with the instructions of a judge. These complexities put in plain view the challenges government institutions face in conducting legally defensible evaluation processes with the members of their evaluation teams.
