When a dispute arises in the context of a federal government procurement, bidders can be forgiven for not knowing where to turn. Depending on the facts of a given case, a disgruntled bidder could potentially seek redress from the Canadian International Trade Tribunal (CITT), the Federal Court or a provincial Superior Court.
Choosing where and when to challenge the procuring entity in question can be a daunting task fraught with peril. If the wrong forum is chosen, or if a limitation period expires, a bidder may be precluded from obtaining – or even seeking – the remedy to which it might be entitled.
Among the factors that a mistreated or unsuccessful bidder must first consider is timing. The deadlines for submitting a Notice of Objection or a formal Complaint to the CITT are punishing, ten (10) working days from the date on which a bidder knew or ought to have known that there was a problem with the procurement.
(By way of contrast, one has thirty (30) days to challenge a government decision by way of an Application for Judicial Review and as many as two years to file an action for breach of contract.)
In view of this punishing timeline, a decision about how to respond to an RFP gone wrong must be made as soon as humanly (or corporately) possible. A bidder in that position should always assume that the clock is ticking, and that ‘waiting to see how it all turns out’ could mean abandoning any chance of seeking relief.
As a first step, a bidder should try to identify all of the specific grounds upon which it could challenge the procuring entity’s actions: Did they evaluate the proposals in a manner contrary to the RFP? Are the technical specifications biased in favour of a competitor? Did the evaluation team engage in bid repair or bid shopping?
Once the specific grounds have been identified, the question becomes whether the procurement provisions of the various trade agreements apply – including, but not limited to, NAFTA, the Agreement on Internal Trade, and the WTO Agreement on Government Procurement. If none of the trade agreements apply, the CITT will not have jurisdiction.
Part of this analysis involves looking to see whether the trade agreements apply to the procuring entity and the particular type of goods or services being procured. If they do, then a bidder must consider whether any of the exceptions apply, including the often used “national security” exemption or NSE.
The Tribunal has consistently held that if the government has properly invoked the NSE, it will not inquire into the matter. Worse, the debate continues as to how and when the NSE can be ‘properly’ invoked by the government – including whether it can be invoked after bid closing.
For their part, the Courts have given strong indications that they view the trade agreements as essentially political documents which do not give rise to any substantive legal rights. As such, a bid challenge based solely on a breach of a trade agreement may not succeed in a federal or provincial Court. The Courts will likely also take the position that the CITT is the only forum available for dispute if violation one of the agreements is the basis of the claim.
The Courts will, however, take violations of common law principles of equity far more seriously. Consequently, in cases where the trade agreements to do not apply – or where the actions on the part of the government also contravene a common law principle – the Courts can be a more appropriate forum for a bid challenge.
A second factor is remedy: What does the bidder want done to correct the situation? Are you looking for lost profits or lost opportunity costs? Do you want to be compensated for bid preparation costs, or compel the evaluation team to re-evaluate their bid? Do you want some form of declaratory relief?
The type of remedy sought can help determine the best forum for a bid challenge. If the CITT has jurisdiction, it can provide the types of relief set out in its regulations. The Courts, however, can sometimes offer both similar or different types of remedies depending on whether the challenge takes the form of a claim for damages or an application for judicial review.
All of which leads to the following conclusion: Choosing the appropriate time and place to commence a bid challenge is absolutely critical, and it is a decision that must be made based on a myriad of factors in an almost prohibitive period of time. And one must choose wisely, as you may not get a second chance.