In its August 2024 determination in Chantier Davie Canada Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal dealt with a follow-up complaint brought by the losing bidder who won a re-evaluation order in a prior bid protest.
The dispute involved a tender call issued on behalf of the Department of Fisheries for maintenance work on the Canadian Coast Guard icebreaker Terry Fox. The Tribunal determined that the government’s re-revaluation was flawed since it resulted in maintaining an award to a non-compliant bidder. The Tribunal found that the winning bidder could not comply with the engine specifications called for in the solicitation and that the evaluators “ignored vital information” in the winning bid that indicated that the winning bidder did not meet the mandatory requirement. The Tribunal ruled that this effectively resulting in the government sole-sourcing the work to a non-compliant bidder.
As the Tribunal concluded, there is “nothing reasonable in accepting a non-compliant bid for contract award or deciding to maintain such an award in the face of information demonstrating non-compliance.” The Tribunal further stated that no deference is owed to evaluators “in a situation where a sole-source procurement took place under the guise of a competitive procurement” and that it was both appropriate and necessary for the Tribunal to “intervene and substitute its judgment for that of the improper evaluation conducted by the government institution.”
Since the result “compromised the integrity of the competitive procurement system” and put that system into “disrepute.” After concluding that it was too late to terminate the improperly awarded contract since the government was too deep into its performance, the Tribunal ordered conditional lost profits (based on an assessment of who should have properly won the bid) in favour of the complainant.
This bid protest, which involved no fewer than 24 lawyers representing the government and competing bidders, illustrates why public institutions should adopt formal drafting protocols that mandate precise mandatory evaluation requirements that promote clear and defensible evaluations. This case study 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.
