In its December 2023 determination in Stericycle, ULC v. Correctional Service of Canada, the Canadian International Trade Tribunal urged government institutions to improve their practices around notifying losing bidders of their bid protest rights. 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 originally misdirecting the complainant to the Office of Procurement Ombud (OPO), who did not have jurisdiction over the matter, rather than properly directing the complainant to the Tribunal.
Since the complainant was still able to meet the limitation period for filing its complaint, the Tribunal did not sanction the government for this misdirection. However, the Tribunal stressed “that it is government institutions, not OPO nor the Tribunal itself, who bear the prime responsibility of properly informing bidders with whom (and within what time frame) they must file a complaint if they have an issue with a procurement process that cannot be resolved at the government institution level.” The Tribunal also stated that “Government of Canada procurement officials should consider concertedly addressing, once and for all, the ongoing shortcomings in discharging that responsibility as regularly underscored by the Tribunal over the years.”
While the Tribunal noted that it “has never encountered overt evidence that government institutions operate with a view of depriving bidders of their recourse to the Tribunal” it cautioned that “mistakes and omissions can have the same consequence: they can leave aggrieved bidders in the dark as to what they must do and, by the time they figure things out, the time that remains for them to act has been abridged until there is little, or no, time left to file a complaint with the Tribunal.”
To address this concern, the Tribunal called for improved training of government officials, stating that it “strongly suspects that the observed deficiency is one of omission caused by insufficient effort deployed by government institutions to train their purchasing officials so that they can inform bidders of their bid-challenge recourse options, and so that this knowledge is imparted to bidders in a timely manner and at various stages from the start to the end of all procurement processes.”
This ruling, which illustrates why public institutions should adopt formal debriefing protocols that include notices to losing bidders of their bid protest rights, will be covered in the Navigating Debriefing Disclosures and Confidentiality Duties and in the Dealing with Bid Protests modules 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.
