This article is an excerpt from Government Procurement, which is available for purchase.
In its October 2012 decision in Robert v. Canada (Attorney General), the Federal Court rejected an application for judicial review launched by an unsuccessful bidder who had competed for the provision of dental services to Correctional Services of Canada. In its decision, the court considered whether the applicant and its competitor had submitted compliant bids. It also considered whether the bidding process was only open to natural persons or whether corporate entities were eligible to bid. On the compliance issues, the court held that the more deferential “reasonableness” standard was the appropriate standard of review. However, with respect to the issue of eligibility to bid, the court held that the less deferential “correctness” standard was the appropriate standard of review since the eligibility issue involved the interpretation of the bid solicitation document. However, even on the less deferential standard the court agreed with Correctional Services of Canada’s interpretation, finding that the bidding process was open to corporate entities. The court rejected the applicant’s challenge on that issue, as well as on the other two compliance issues. As this case illustrates, while the reasonableness standard is typically applied to the judicial review of government contracting decisions, there remain instances in which the less deferential “correctness standard” may be applied by the courts, particularly when the legal interpretation of solicitation documents is concerned.
