In its February 2023 determination in Chantier Davie Canada Inc. and Wärtsilä Canada Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal ordered a re-evaluation after finding latent defects in the government’s evaluation criteria.
The dispute dealt with an invitation to tender issued by the Department of Public Works and Government Services (PWGSC) on behalf of the Department of Fisheries and Oceans for repair work on a Canadian Coast Guard icebreaker. The complainant challenged the government’s evaluation of each bidder’s collective bargaining arrangements and the government’s assessment of how expiring collective agreements could impact contract performance.
The Tribunal found that the government was unreasonable in its interpretation of the criteria since the evaluators sought to eliminate all risk of work stoppages. As the ruling stated, “it is impossible to completely eliminate the risk that a workplace will be in a strike or lockout through an evaluation criterion.”
The Tribunal also found that the evaluation was biased against unionized bidders since “a non-unionized workplace can also be subject to a work stoppage (e.g. employees can refuse to work for safety reasons, workers can walk off the job, or the tight labour market may prevent a workplace from having sufficient workers on force to get the job done).” However, the government’s interpretation of the criteria “contained no possible liability for a non‑unionized workplace, which is inherently lopsided.”
The Tribunal concluded that the criteria, as interpreted by the evaluators, contained an “inherent latent ambiguity because it was evaluated as a pass or fail criterion that is potentially impossible to meet.” As the Tribunal stated, “a bidder can never guarantee that it will not be the subject of a labour disruption, and PWGSC cannot assume that labour disruptions can happen only in unionized workplaces with expired labour agreements because they can occur elsewhere, too.”
The Tribunal therefore ordered a re-evaluation. As this case illustrates, public institutions should avoid imposing unrealistic standards in their evaluation criteria and should avoid unreasonable double standards in how those criteria are applied.
