In its February 2023 determination in Chantier Davie Canada Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal ordered a re-evaluation due to a “latently ambiguous” mandatory evaluation requirement. The dispute dealt with a tender call issued on behalf of the Department of Fisheries for maintenance work on the Canadian Coast Guard icebreaker Terry Fox. The Tribunal found that the complainant’s bid was improperly rejected based on an unreasonable and hidden compliance standard that required no labour disruptions during the performance of the contract.
The Tribunal determined that the requirement was not a proper evaluation criterion and, more specifically, that it was unreasonable to evaluate it on a pass-fail basis since “it is impossible to completely eliminate the risk that a workplace will be in a strike or lockout through an evaluation criterion.” Further, the Tribunal found that the requirement was “inherently lopsided” since it was difficult “to conceive how unionized workplaces could be scored compared to non-unionized workplaces, or how a fair and non-discriminatory scoring methodology could be structured to account for such distinctions and such typically unforeseeable events.”
After finding that the criterion should be treated as a post-award contract administration requirement, rather than an evaluation criterion, the Tribunal determined that the government had applied “latently ambiguous” evaluation criteria and ordered a re-evaluation of the complainant’s bid.
This bid protest, which involved no fewer than 18 lawyers representing the government and competing bidders, 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. This case study will be featured in the Avoiding Biased Requirements and Defining Mandatory Requirements modules of our new RFx Drafting in the Canadian Public Sector certificate program course that runs in May and returns in November. Please see our current training schedule for more details.
