In its December 2023 determination in Stericycle, ULC v. Correctional Service of Canada, the Canadian International Trade Tribunal urged government institutions to provide more fulsome debriefings and respond to bidder-raised concerns about winning bidders. The dispute dealt with an RFP issued by the Correctional Service of Canada (CSC) for the procurement of biomedical waste removal services for CSC sites in Alberta, Manitoba and Saskatchewan. While the Tribunal ultimately dismissed the complaint on its merits, it criticized the government for its failure to follow up on its initial debrief and respond to the losing bidder’s subsequently raised concerns about the winning bidder.
After its initial debriefing, a losing bidder raised follow-up concerns with the government regarding a news report that the winning bidder was under an enforcement order due to the allegedly improper disposal and storage of biomedical and hazardous waste. However, the government refused to entertain further discussions about its award decision, claiming that it could not discuss the news article.
The Tribunal disagreed, stating that “Stericycle wanted to know from CSC why it had lost the RFP to a competitor that was in the situation reported on by CBC News” and that this “was not an illegitimate or frivolous request.” While the Tribunal stated that “government institutions can make judgment calls to discern frivolous inquiries from issues of serious concern” it noted that “the matter raised by Stericycle clearly fell into the second category.”
The Tribunal further cautioned that when a government institution “does not address a serious concern that a bidder brings to it, either before or following contract award, the government institution fails to seize an opportunity to dialogue with its stakeholder” and that without such dialogue “situations can quickly escalate, with aggrieved bidders ultimately having no choice but to turn to the Tribunal to seek answers.”
In summary, the Tribunal found that increasing post-award dialogues with losing bidders can help resolve bidder concerns and prevent those concerns from escalating into bid protest challenges. However, from a practical perspective, the ruling creates confusion over whether government institutions are under a duty to revisit contract award decisions based on concerns raised by competing bidders during an evaluation process or during after-the-fact debriefings.
This ruling, which illustrates why public institutions should adopt formal debriefing protocols, will be covered in the Navigating Debriefing Disclosures and Confidentiality Duties module of our new Fundamentals of Canadian Government Procurement certificate program that runs in April and returns in October. Please see our current training schedule for more details.
