This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its March 2020 determination in Bluenose Transit Inc. v. Department of Public Works and Government Services, the Canadian International Trade Tribunal found that the government improperly awarded a contract to a non-compliant bidder. The Tribunal ordered the government to cancel that award and re-tender its requirements. The dispute dealt with a solicitation for bus transportation services for the Department of Defence in Nova Scotia. The complainant alleged the government awarded the contract to a non-compliant competitor whose base of operations fell outside the proximity zone specified in the solicitation. The complainant also alleged that its competitor’s rates fell below the minimum rates established under Nova Scotia’s Motor Carrier Act standards. The Tribunal agreed. It ordered the government to set aside its contract award, re-tender its requirements, and establish proper record-keeping for its next evaluation to better ensure a reviewable and defensible evaluation record:
The Tribunal also recommends that for the next solicitation, PWGSC adequately maintain a record of the bid evaluation process, in particular with respect to the mandatory technical criteria. PWGSC’s failure to properly document the evaluation of the bids seriously undermined the integrity and transparency of the procurement process. This is underscored by the fact that PWGSC’s evaluation error was made with respect to a relatively simple requirement, i.e. item 16 of the SOW. Without a record of the evaluation, the Tribunal’s ability to understand how the error was made and how the solicitation could be improved has been hindered.
As this case illustrates, the failure to conduct and document a proper evaluation process can undermine the validity of any resulting contract award and create a significant duplication of effort when that award is nullified and the tendering process has to be repeated. Purchasing institutions would be well advised to take the time to execute their procurements properly on the first attempt.
