In its July 2023 determination in Newland Canada Corp. v. Canada (Department of National Defence) the Canadian International Trade Tribunal dismissed a bid protest that alleged that the government awarded a contract to a non-compliant bidder. The dispute dealt with an RFP issued by the Department of National Defence for the provision of hotel accommodations, meals and laundry services for the Canadian Armed Forces in Poland.
The complainant alleged that the contract was awarded to a non-compliant bidder that failed to meet the hotel room occupancy capacity requirements or provide rooms with alarm clocks and phones. However, the government argued that the requirements in question were post-award contract performance standards that had to be met after award, rather than pre-award evaluation criteria that had to be met at the time of bid submission. The Tribunal agreed and determined that the complaint was not valid.
This bid protest, which illustrates why public institutions should adopt formal drafting protocols that mandate precise mandatory evaluation requirements that avoid blurring the lines between pre-award evaluation criteria and post-award contract performance standards, will be featured in the Defining Mandatory Requirements 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.
