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No “Do-Overs”: Even If The Government Provides Confusing Information, Bidders Remain Responsible For Meeting Bid Dispute Filing Deadlines

Fasken
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Procurement Bulletin

Two recent Canadian International Trade Tribunal (CITT) cases have once again re-emphasized to bidders that the 10-day complaint submission deadline under the Tribunal’s procurement regulations will be strictly enforced. 

In Nur Construction Ltd v PWGSC[1], Nur was unsuccessful in its bid for the provision of maintenance services for Canadian Forces housing at CFB Borden. In the Public Services and Procurement Canada (PSPC) [2] regret letter, bidders were advised:

“If you have any concerns relating to the procurement process, please refer to the Recourse Mechanisms page on the Buyandsell.gc.ca website. Please note that there are strict deadlines for filing complaints with the Canadian International Trade Tribunal (CITT) or the Office of the Procurement Ombudsman (OPO), where applicable.”

Eleven days after receiving this letter, Nur filed a complaint with the Procurement Ombudsman (within the bid dispute filing deadline for the Procurement Ombudsman). The following day, the Procurement Ombudsman informed Nur that it lacked jurisdiction to hear the complaint and suggested that Nur consider contacting the CITT as soon as possible, noting in its response that the CITT time lines were imposed by legislation. Another week passed before Nur filed its complaint with the CITT. In its complaint to the CITT, Nur attributed the delay between receiving the PSPC regret letter and filing its CITT complaint to its interactions with the Procurement Ombudsman.

A few weeks later, the CITT faced a similar situation in Expert Systèmes (148650 Canada Inc) v PWGSC[3]. In that case, PSPC had issued an RFP for conveyer maintenance services but then cancelled and immediately issued a new RFP. Expert Systèmes raised an objection to PSPC’s cancelling and retendering the opportunity, while also submitting a bid under the second RFP. Expert Systèmes’ bid for the second RFP was ultimately unsuccessful; it received a regret letter containing the same language as the Nur regret letter explaining bid recourse mechanisms[4]. Expert Systèmes first (incorrectly) filed a complaint with the Procurement Ombudsman, then filed a complaint at the CITT.

Both complaints were dismissed as they were not filed within the prescribed 10-day limit. The CITT re-emphasized its previously stated view that the language in the regret letters was short of detail and clarity and added to an already confusing situation for bidders. But, in each decision,  it maintained the general state of the law in Canada — bidders ultimately bear the responsibility for understanding all requirements, including filing disputes on time and in the correct forum.[5]

As both cases point out, understanding the limited role of the Procurement Ombudsman is critical; particularly because the CITT filing deadline is only 10 days, while the Procurement Ombudsman complaint filing deadline is 30 days.

The Limited Scope of the Procurement Ombudsman in a Bid Dispute

The Procurement Ombudsman can only address complaints  if all three of these criteria exist:

  • The complaint is by a Canadian supplier;
  • regarding the procurement process for the award of a federal contract; and
  • the awarded contract is valued below $26,400 for goods and $105,700 for services.

If the Office of the Procurement Ombudsman is the correct forum, a bidder has 30 working days after public notice of the award of the contract to file a written complaint. If there was no public notice, the bidder has 30 working days after the day on which they become aware, or should have become aware, of the award of the contract.[6]

Readers should note that, although the website for the Procurement Ombudsman indicates that it provides complaint investigations “…regarding the administration of a federal contract, regardless of dollar value” this investigative activity deals only with issues involving the administration of an awarded federal contract  and not the procurement process that resulted in the award of that contract unless it otherwise meets the three criteria listed above.

A Simple Solution for the State of Confusion

Trade agreements require that the notice of procurement and/or the solicitation documents identify which trade agreements apply to the procurement. Since the citing of trade agreements is already part of the procurement process (which means, the government has already determined that a trade agreement applies, and thus, the Procurement Ombudsman has no jurisdiction):

  • Contracting authorities could simply adjust the regret letter being issued for a procurement that is subject to trade agreements (including those designated under a national security or other exception) to identify that the CITT or the courts are the available venues, and remove any reference to the Procurement Ombudsman’s office[7].    
  • Regret letters for procurements at or below the threshold that triggers the Procurement Ombudsman’s dispute resolution authority could identify that the Procurement Ombudsman or the courts are available venues.
  • Since the Ombudsman’s investigative service for disputes involving awarded contracts would be a matter of contract administration, reference to that avenue could be limited to the resulting contract terms and clarified.

The 10-day Filing Deadline for the CITT

We have previously outlined the importance of complying with the strict 10-day time limit for CITT complaints – including when they are triggered and how they are calculated – in our bulletin: Beat the Clock - 10 Critical Days for Procurement Disputes Under the Trade Agreements and would invite readers to review this information.


[1] See Nur Construction Ltd v PWGSC (28 August 2020), PR-2020-018 (CITT).

[2] PSPC is the Canadian Government department that serves as a central purchasing agent for the federal government. Its formal legal name is Public Works and Government Services and its stylized name since 2016 has been Public Services and Procurement Canada.

[3] See Expert Systèmes (148650 Canada Inc) v PWGSC (2 September 2020), PR-2020-027 (CITT).

[4] Although Expert Systèmes never received a response to its objection to the cancellation and retendering of the first RFP, the CITT determined (as expected) that the complaint regarding the first solicitation had been constructively denied when, through the regret letter, PSPC informed Expert Systèmes that the contract had been awarded. The importance  of constructive or deemed denial is further explained in our bulletin Beat the Clock - 10 Critical Days for Procurement Disputes Under the Trade Agreements.

[5] See e.g. Nur Construction Ltd v PWGSC (28 August 2020), PR-2020-018 (CITT) at para 20.

[6] See Procurement Ombudsman Regulations, SOR/2008-143, s. 7(1).

[7] The CITT has even provided  language for PSPC to consider, as reiterated in the Nur Construction and Expert Systèmes decisions.

 

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