In its January 2023 determination in Cistel Technology Inc. v. Department of Health, the Canadian International Trade Tribunal found that the government’s failure to reply to a pre-bid question was fatal to the fairness of a technology services RFP and that this omission justified the cancellation of the resulting contract award. While the winner of the flawed process brought a bid protest challenging the contract termination, the Tribunal upheld the government’s decision to cancel and retender.
The Tribunal found that during the pre-bid question-and-answer process the government failed to reply to a competing bidder’s question about technical evaluation criteria and that the government only discovered the “unfortunate oversight” during the post-award debriefing process, after which it cancelled the contract award. While the Tribunal recognized that “a cancellation clause cannot be invoked in a totally arbitrary manner” it also found that “it is incumbent on government institutions to take appropriate steps to rectify mistakes in the procurement process, in keeping with the terms of the solicitation and in a manner that preserves the integrity of the competitive procurement system.”
In this case the Tribunal agreed that the failure to answer the bidder’s question denied that bidder “an opportunity to participate in the solicitation process on the same terms as other bidders” and therefore upheld the decision to cancel the resulting contract and retender the opportunity.
This decision, which illustrates why public institutions should adopt formal evaluation and award protocols, including protocols for managing the pre-bid question-and-answer process to guard against process errors, will be featured in the Co-Ordinating RFx Design-Planning and Drafting module of our 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.
