In its January 2023 determination in Ramida Enterprises Ltd. v. Department of Environment, the Canadian International Trade Tribunal dismissed the complaint of a rejected low-bidder after determining that the bidder should have sought pre-bid clarifications regarding the disputed mandatory experience requirement. While the government successfully defended the bid protest, it still had to retender the contract since it received no compliant bids.
The dispute dealt with an RFP for the rehabilitation of a forestry road in British Columbia. The low bidder was disqualified for failing to meet the mandatory experience requirement that vaguely called for two prior projects of a “similar nature and value”. The rejected bidder challenged the government’s non-compliance assessment, arguing that it should have been awarded the contract as the compliant low bidder.
Since there were no clear lines defining what would or would not constitute compliance with the pass-fail requirement, the bid rejection triggered a complex interpretive and factual dispute between the parties that ultimately had to be resolved by the Tribunal through a formal bid protest.
While the Tribunal noted that the word “similar” is “somewhat malleable in terms of conveying the standard that will be used for the purposes of comparison during bid evaluation” it ultimately found that “the statement of work provided enough detail for a reader of the RFP to understand that the expected tasks required some degree of expertise and sophistication.” The Tribunal also ruled that the rejected low bidder should have sought pre-bid clarifications if it was not clear as to what was called for in the mandatory experience requirement.
While the government ultimately prevailed in defending its bid rejection, it still had to retender the project since the only other bidder was also found to be non-compliant. This dispute reflects a long-standing tendency, as evidenced in multiple bid compliance disputes at the Canadian International Trade Tribunal in recent years, for the federal government to rely on complicated and ambiguous mandatory technical requirements that leave pass-fail assessments subject to interpretive dispute and legal challenge.
The case study, which serves to illustrate why public institutions should adopt formal drafting protocols aimed at preparing precise mandatory requirements that prevent interpretive disputes, 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.
