This article is an extract from the 5th edition of Government Procurement.
In its May 2018 determination in Renaissance Aeronautics Associates Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal rejected the complainant’s allegations of unfair advantage, but criticized the government’s minimalistic approach to satisfying its debriefing duties. The case dealt with a Request for Proposals (RFP) for the Department of Defence, issued on its behalf by the Department of Public Works and Government Services (referred to below as PWGSC), regarding the provision of aircraft repair courses. The complainant challenged the process, arguing that the evaluation criteria gave an unfair advantage to a competing community college since it was publicly funded and could, among other things, outbid it on price. The Tribunal rejected these grounds of complaint, finding no evidence of bias on the part of the government evaluators and finding that the complainant failed to prove its allegations. The Tribunal did however criticize the government for its delayed and minimalistic approach to providing the complainant a debriefing:
RAA/ACT submitted that, despite its repeated requests for a debriefing throughout January and February 2018, it only received a debriefing document from PWGSC on March 2, 2018, after RAA/ACT had contacted the Procurement Ombudsman. In addition, RAA/ACT alleged that the debriefing document did not contain any explanation for the determination that RAA/ACT’s bid was non-compliant with the technical mandatory criteria identified therein.
Although RAA/ACT had to wait until March 7, 2018, to receive a further debriefing (by telephone) on the procurement from PWGSC, it nonetheless received a debriefing, and the Tribunal is satisfied that PWGSC fulfilled its duty under the applicable terms of the RFP and the CFTA in this regard.
The Tribunal notes, however, that the scope of the complaint could have potentially been narrowed significantly had PWGSC been more forthcoming in its debriefing with RAA/ACT as to the reasons its bid was determined to be non-compliant with the mandatory technical criteria of the RFP. In the absence of a detailed explanation for its non-compliance, RAA/ACT sought recourse before the Tribunal. However, once it received the GIR, RAA/ACT was ultimately satisfied with the detailed explanations provided by PWGSC for the non-compliance of its bid and only pursued its complaint regarding the remaining grounds addressed above.
While the Tribunal ultimately rejected the unfair advantage allegations and held that the government met its trade treaty debriefing duties, it also found that more proactive disclosures could have prevented the bid protest or, at minimum, reduced the scope of that protest.
As this case illustrates, purchasing institutions should carefully consider their overall debriefing strategies since properly conducted debriefings can serve as a preventative measure for reducing downstream bid protests.
