This article is an extract from the 5th edition of Government Procurement.
In its March 2018 determination in Vantage Painting Ltd. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal ruled on one of the first cases under the new Canadian Free Trade Agreement (CFTA). In that ruling, the Tribunal upheld the government’s evaluation process but was critical of the government’s failure to inform the losing bidder of its post-process bid protest rights. The dispute dealt with a tendering process for the award of a painting services contract in Yellowknife, Northwest Territories. A losing bidder challenged the experience criteria relied on in the evaluation process, but the Tribunal ultimately ruled against the complainant after finding that its concerns should have been raised proactively when the solicitation was first posted, rather than later following the results of the evaluation. However, while the Tribunal rejected the complaint, it also criticized the government’s lack of transparency in informing the bidder of its bid protest rights:
The regret letter to Vantage dated November 14, 2017, made no mention of the recourse mechanisms available to Vantage or the applicable time lines to be mindful of the importance of properly informing bidders of the recourse mechanisms available to them, including the possibility of filing a complaint with the Tribunal Neither did the RFSO. Moreover, PWGSC acknowledged that it did not inform Vantage of the available appeal options in the phone call on November 15, 2017, because the contracting officer did not see a basis for any further review of the results. This is not an acceptable basis for withholding this type of information from bidders. The decision of whether a bidder should or should not be informed of the recourse mechanisms available to them has nothing to do with a contracting officer’s personal views about the strength of a ground of complaint or a bidder’s chances of success. Instead, information about recourse mechanisms is part and parcel of a fair, objective and transparent procurement process, as PWGSC knows full well.
In this case, as this information was not readily provided to Vantage, its ability to obtain answers about its recourse options was frustrated to the point where it felt the need to seek assistance from the local MP’s office. Although the present complaint was filed within the prescribed time limits under section 6 of the Regulations, the extra time and effort required by Vantage could have resulted in a scenario in which the Tribunal may have had no choice but to reject Vantage’s complaint on the basis of timeliness alone, given the tight timelines for filing a complaint with the Tribunal.
As this case illustrates, informing bidders of their protest rights should not be based on the subjective internal assessment by government officials as to the merits of a losing bidder’s potential bid protest claim. When bidders are unaware of the appropriate avenues of challenge, they may escalate their complaints via inappropriate channels, which, as in this case, can include the launching of complaints directly to elected officials. In the interest of safeguarding the integrity of the bidding process, it is preferable to inform bidders on how to engage in appropriate process challenges, rather than run the risk of politicizing evaluation and award decisions.
