canadian public procurement regime

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POCKETBOOK ON THE CANADIAN PUBLIC PROCUREMENT REGIME


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THE CANADIAN PUBLIC PROCUREMENT REGIME by Gerry Stobo and Derek Leschinsky

This article is reproduced from the chapter titled Canada in the forthcoming text: R.H. Garca,ed. International Public Procurement: A Guide to Best Practice (London: Globe Law and BusinessPublishing, 2009).

The authors acknowledge Globe Business Publishing Ltd (http://www.globebusinesspublishing.com)for its support and the permission to reproduce this work.


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Borden Ladner Gervais LLPLawyers | Patent and Trade-Mark Agents

POCKETBOOK ON THE CANADIANPUBLIC PROCUREMENT REGIME


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TABLE OF CONTENT

1. Introduction ..............................................................................5

2. The Canadian Procurement Law Regime ....................................62.1 The Two-Contract Framework ....................................................62.2 Only Compliant Tenders May Be Accepted ...................................62.3 Bids Must Be Evaluated Fairly And Equally ..................................72.4 Duties To Unsuccessful Bidders ...................................................82.5 The Rights Of Subcontractors .....................................................8

3. Canadas Federal Procurement System ........................................93.1 Introduction ................................................................................9

3.2 Administrative Structures ............................................................93.3 Overview Of Bid Solicitation Procedures ................................... 103.4 Canadian Content Policies ......................................................... 11

(a) Introduction ................................................................................. 11(b) Canadian Content Policy ................................................................ 11(c) The Procurement Review Committee ................................................ 12

3.5 Applicable Trade Agreements .................................................... 13(a) The North American Free Trade Agreement ...................................... 13(b) World Trade Organization-Agreement On Government Procurement ....14(c) Agreement On Internal Trade ......................................................... 14(d) Canada-Chile Free Trade Agreement ................................................ 15

4. Provincial/Territorial And Municipal Procurement Systems ..... 164.1 Provincial/Territorial Procurement ........................................... 16

4.2 Municipal Procurement ............................................................. 164.3 Remedies .................................................................................. 17

5. Challenges To Federal Government Procurement Practices ....... 195.1 Introduction .............................................................................. 195.2 Canadas Bid Challenge Agency:The Canadian International

Trade Tribunal .......................................................................... 19


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5.3 The Bid Protest Procedure ......................................................... 21(a) The Complaint .............................................................................. 21(b) Filing A Complaint ........................................................................ 22(c) Acceptance Of A Complaint For Investigation ................................... 22(d) What Do Potential Suppliers Complain About? ................................. 23(e) Canadian International Trade Tribunals Determination ................... 24(f) Implementing The Canadian International Trade

Tribunals Recommendations .......................................................... 25

6. Judicial Review Of Canadian International TradeTribunal Determinations .......................................................... 26

7. The Procurement Ombudsman.................................................288. Best Practices ........................................................................... 28

8.1 When Submitting Bids .............................................................. 28(a) Read The Bid And Provide Exactly What Is Requested ....................... 28(b) Organise Responses And Provide Sufficient Detail To Be Responsive ......30(c) Consult Government Procurement Resources ..................................... 30

8.2 When Questioning The Award Of A Contract To Another Bidder .. 31(a) Request A Debrief With The Contracting Authority........................... 32(b) Quickly Raise Any Concerns About A Procurement Outcome .............. 32

9. Conclusion............................................................................... 33

Schedule I .................................................................................... 34Canadian International Trade TribunalProcurement Complaint Checklist .................................................. 34

Identify The Parties ........................................................................... 34Identify The General Type Of Procurement .................................... 34Provide Information Concerning Objection ToGovernment Institution ..................................................................... 35Set Out Legal Basis For The Complaint ............................................ 35Identify The Relief Requested ........................................................... 35Provide Supporting Documents ........................................................ 35Request Condential Treatment Of Condential AndProprietary Information .................................................................... 36Provide Copies To CITT ................................................................... 36


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1. INTRODUCTION 1

Governments at all levels throughout Canada annually purchase

over C$100 billion worth of goods and services. From aircraft tocomputers, from vaccines to food, from pens to missiles, governmentsat the federal, provincial and municipal levels conduct a dizzyingarray of procurement processes to acquire the things needed to keepCanadians safe and secure and to ensure the continued functioning ofgovernment itself. Public procurement law in Canada is fast developingas one of Canadas more visible areas of practice. The nancialconsequence to suppliers is frequently signicant, with governments

being the biggest purchasing group within the country. But, as will bediscussed in this chapter, the framework of public procurementin Canada is anything but straightforward.

Procurement law has developed considerably in Canada over the last30 years from a traditional common law approach to a virtually uniquedual contract conceptualisation of tendering. These very signicantreforms have arisen out of a series of decisions from the Supreme

Court of Canada articulating a new policy-based framework thatattempts to make procurements more competitive and fair. Althoughmany of these principles apply to procurements by all levels ofgovernment (federal, provincial/territorial and municipal) as well asprivate sector procurements, the regime for provincial/territorialand municipal procurement is somewhat distinct from the federalregime, most notably with respect to the applicability of the tradeagreements and enforcement mechanisms.

This chapter will rst consider some of the overarching commonlaw concepts relating to procurement law and then review howthose concepts apply to the purchasing activities of governments inCanada. The chapter will also discuss Canadas federal bid challengeregime under the jurisdiction of the Canadian International TradeTribunal (CITT). This quasi-judicial regime applies to some, but not all, of the purchasing undertaken by the federal government.

1 Gerry Stobo is a partner at Borden Ladner Gervais LLP (BLG). Gerry is head of BLGs federalgovernment contracting and public procurement group. Derek Leschinsky is an associate at BLGpractising in the rms government contracting and public procurement group. The views expressedin this article are those of the authors and not BLG.


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2. THE CANADIAN PROCUREMENT LAW REGIME

2.1 The Two-Contract Framework

Leaving aside, for the moment, the federal governments unique bidchallenge regime, all procurements in Canada are founded on theprinciples articulated in the Supreme Court of Canada decision inThe Queen (Ontario) v Ron Engineering ,2 a seminal case that fundamentallyaltered the competitive bidding framework in this country. A discussionof the federal governments bid challenge regime will follow.

The court in Ron Engineering introduced the concepts of Contract A and Contract B into Canadian procurement law. Prior to Ron Engineering , it was understood that bid solicitation documentsconstituted an invitation to treat and that a contract was only formedonce a winning bidder was selected. The court in Ron Engineering heldthat when a call for tenders is issued, this constitutes an offer, and whena bid is submitted by a potential supplier, this constitutes acceptance anda unilateral contract (Contract A) is created at that moment giving rise

to binding obligations on both parties. As such, a suppliers bid becomesirrevocable and the bidder does not have the ability to negotiate oramend the terms of the bid solicitation documents. By submitting a bid, the potential supplier is accepting the terms of the bid solicitationdocuments. Contract B is formed between the purchaser and thesuccessful supplier once the winning contractor is selected.

Subsequent Supreme Court of Canada decisions have rened and builton the two-contract framework set out in Ron Engineering .

2.2 Only Compliant Tenders May Be Accepted

In MJB Enterprises Ltd v Defence Construction (1951) Limited,3 the SupremeCourt claried that although in a competitive bidding process, a contractdoes not need to be awarded to the lowest compliant bidder, it is animplied term of Contract A that the bid of the preferred proponentmust be compliant with the requirements of the tender documents. Although the court upheld the validity of privilege clauses, 4 it restrictedhow these clauses may be applied. The court found that bids could not

2 [1981] 1 SCR 111.3 [1999] 1 SCR 619.4 A privilege clause seeks to reserve the owners rights with respect to the awarding of a contract. In

this case, the clause provided that the contract would not necessarily be awarded to thelowest bidder.


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be selected based on undisclosed criteria. MJB is also notable in thatthe court indicated that the Contract A/Contract B approach wouldnot arise from all types of bid solicitations.

In Canada, there are a number of types of bidding documents that can be used in procurement. These include the invitation to tender wherethe requirements of the purchaser are laid out in detail and mandatorycriteria are used to evaluate bids. Bids are irrevocable and bidderstend to compete primarily on price. Another form of procurementsolicitation is the request for proposal (RFP). A request for proposaldiffers from an invitation to tender in that it is used when a purchaser

is seeking to evaluate bidders on more than just the price required toperform a specic task. The requirements of a request for proposal areless detailed than in an invitation to tender. Requests for quotations(RFQs) are used to elicit the lowest price for a good or service, but mayalso be used when the procurement requirements are less dened, andsome negotiation may be necessary to obtain best value.

Governments frequently use requests for standing offers (RFSO) to

obtain goods and services as needed. These standing offers contemplatethat goods or services may be required on multiple occasions. Requestsfor expressions of interest (RFEIs) are often used in conjunction with arequest for a proposal to pre-qualify or limit the bidders who respondto the request for proposal, particularly in situations where specialisedexpertise is required. 5

2.3 Bids Must Be Evaluated Fairly And Equally

The Supreme Court further rened the two-contract approach in itsdecision in Martel Building Ltd v Canada.6 Here, the court articulateda fairness principle in procurement law, nding an implied term inContract A that purchasers be fair and consistent 7 when evaluating bids. The court found that a privilege clause in a bid solicitationdocument does not exonerate the buyer from the obligation to treat all bidders fairly. It also imposed an implied obligation to treat all bidders

fairly and equally.8

Although the court found that a duty of fairnessexists, it found that there was no duty of care owed by the purchaser

5 See Gerry Stobo and David Sherriff-Scott, Tender Legal Care, Government Purchasing(May-June 2003, Vol. 35, No. 35) .

6 [2000] 2 SCR 860.7 Ibid, at para 88.8 Ibid.


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to potential suppliers either in the drafting of tender documents or inthe conduct of negotiations. That is, while purchasers are generally freeto select their preferred evaluation criteria, they must fairly follow the

procurement criteria they select when evaluating bids.2.4 Duties To Unsuccessful Bidders

More recently, in Double N Earthmovers Ltd v Edmonton (City),9 the SupremeCourt reaffirmed the Ron Engineering principles and elaborated onthe differing duties that pertain to Contract A and Contract B. Thecourt found that Contract A ends once a purchaser undertakes a fair

evaluation of bids and selects a preferred proponent. Unlike Contract A, a purchaser does not owe duties to unsuccessful proponents whenit concludes the ultimate contract, Contract B, with a preferredproponent. The purchasers obligations to unsuccessful bidders endwith the completion of its obligations under Contract A. 10

This case is also signicant in that the court found that a purchaser doesnot have an obligation to conrm bidders abilities to perform what theyhave promised in their submissions. Accordingly, purchasers are entitledto and will take bids at face value when making their selection.

2.5 The Rights Of Subcontractors

The Supreme Court has also commented on the duties and obligationsrelating to subcontractors. In Naylor Group Inc. v Ellis-Don Construction Ltd,11 the court found that where a tender is submitted that includes bidsfrom specied subcontractors, the supplier is obligated to subcontractwith these subcontractors if its bid is successful. The court found that bid shopping was not permitted at the expense of the subcontractor.Despite this nding, the scope of this decision may be somewhatambiguous as some commentators have suggested that the applicationof this decision may be conned to cases where bids are made pursuantto a bid depository system. 12

The most recent statement from the Supreme Court came in thedecision of Design Services Ltd v Canada.13 The court again discussedduties that are owed to subcontractors. This time, the court found

9 [2007] 1 SCR 116.10 Ibid, at para 71.11 [2001] 2 SCR 943.12 Paul Emanueli , Government Procurement , (Markham: LexisNexis Canada Inc, 2005), at 580.13 [2008] 1 S.C.R. 737.


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that purchasers do not owe any duty of care to subcontractors in thecontext of a tendering process. It will therefore be for the bidder, nota subcontractor, to seek redress for irregularities in the procurement

process in Canada.

3. CANADAS FEDERAL PROCUREMENT SYSTEM

3.1 Introduction

Within Canada, federal government procurement is governed in part bythe common law principles discussed above, and in part by the federal

bid challenge regime that was created pursuant to Canadas obligationsunder three trade agreements the Agreement on Internal Trade(AIT), North American Free Trade Agreement (NAFTA), World TradeOrganization-Agreement on Government Procurement (WTO-AGP) andthe Canada-Chile Free Trade Agreement (CCFTA) along with an arrayof regulations and policies.

3.2 Administrative Structures

The broad policy framework for expenditure of federal public funds isset out in the Financial Administration Act. 14 The act provides the legalframework for the collection and the expenditure of public funds. TheGovernment Contracts Regulations, 15 which were enacted pursuantto the Financial Administration Act, also provide the conditions forentering into a contract and the general requirements for the acquisitionof goods and services.

Within the scope of this broad framework, the Treasury Board ofCanada (Treasury Board) has been delegated overall responsibilityfor establishing general expenditure policies as they pertain to thefederal procurement process. 16 In addition to setting general principlesof contracting, the Treasury Board is also responsible for approvingcontracts entered into by federal contracting agencies when suchcontracts exceed certain dollar-value thresholds as established from

time to time by the Treasury Board.17

14 R.S.C. 1985, c. F-11.15 SOR/87-402.16 The policies of the Treasury Board of Canada are contained in the contracting policy available on its

website: http://www.tbs-sct.gc.ca (date accessed: April 22 2009).17 The requirement for Treasury Board approval arises from section 34 of the Financial Administration

Act . Delegation to the board of the power to set these thresholds is permitted by section 53 of thatact and the Treasury Board Delegation of Powers Orders, SOR/86-1123.


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Public Works and Government Services Canada (PWGSC), formerlythe Departments of Supply and Services and Public Works, 18 is theprincipal purchasing agent of the federal government of Canada and

is responsible for providing procurement sources for the majority offederal departments. 19 The statutory basis and administrative frameworkof PWGSC is established by the Department of Public Works andGovernment Services Act. 20 PWGSC must act in accordance with theFinancial Administration Act, the Government Contracts Regulations,the Defence Production Act, 21 and directives issues by the TreasuryBoard. PWGSC nevertheless retains considerable discretion to setpolicies and procedures respecting the procurement process which ithas done through a series of very helpful guidance documents includingthe Supply Manual 22 and Standard Acquisition Clauses and Conditions(SACC) Manual.23

3.3 Overview Of Bid Solicitation Procedures

On April 2 1991, the federal government instituted a new open bidding policy applicable to most procurements having a value of

$25,000 or more. At that time, government procurement was governed by only the General Agreement on Tariffs and Trade (GATT) andthe Canada-US Free Trade Agreement (the FTA). The FTA was a bilateral agreement between Canada and the United States which hassubsequently been replaced by NAFTA, which brought Mexico intothe tripartite trade Agreement.

Prior to 1991, PWGSC generally invited bids only from those rms

which had registered with PWGSC and therefore appeared on officialPWGSC source lists. Now, however, under the open bidding policy,all notices with respect to Government Procurement are placed onthe Government Electronic Tendering Service (GETS). GETS is thegeneric name of the online business opportunity identication and bid documentation distribution service. This service, called MERX, 24

18 Public Works and Government Services Canada was created by the amalgamation of the Depart-ment of Supply and Services and of Public Works in June, 1993.

19 With few exceptions, PWGSC is responsible for the procurement of all goods on behalfof the federal government.

20 SC 1996, c 16.21 RSC 1985, c D-1.22 http://www.tpsgc-pwgsc.gc.ca/app-acq/ga-sm/index-eng.html (date accessed: April 22 2009).23 http://sacc.pwgsc.gc.ca/sacc/index-e.jsp (date accessed: April 22 2009).24 http://www.merx.com (date accessed: April 22 2009).


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is currently delivered on behalf of PWGSC by a private rm. 25 The bidsolicitation notices placed on MERX generally contain a descriptionof the subject matter of the proposed procurement as well as the time

limits for the submission of bids.Further, in the case of procurements covered by the AIT, NAFTAand the WTO-AGP, where PWGSC intends to contract on a sole source basis (i.e., without an open invitation for bids) it must issue an AdvanceContract Award Notice (ACAN). The ACAN is designed both to setforth the justication for the governments decision to pursue theprocurement on a sole source basis and to elicit interest from additional

potential suppliers who may not be known to the government.Following an evaluation of the bids received and the selection ofthe awardee, PWGSC will publish a contract award notice identifyingthe winning supplier, the goods or services acquired, and the valueof the contract.

3.4 Canadian Content Policies

(a) Introduction

The longstanding Canadian practice of using procurement tofurther domestic socio-economic objectives presently manifests itselfthrough the application of two procurement policies namely theCanadian Content Policy and the Procurement Review Committeemechanism. These policies have the net effect of diminishing access togovernment procurement contracts by foreign suppliers. It should benoted at the outset, however, that the rst of these policies does notapply to procurements covered by the NAFTA or WTO-AGP, whilethe application of the second policy is limited to screening ratherthan to revival. 26

(b) Canadian Content Policy

The Canadian Content Policy is designed to encourage industrial

development in Canada by limiting, in specic circumstances,competition for government procurement opportunities to suppliersof domestic goods and services. 27 The policy applies to most

25 Supply Manual, section 7B.26 Public Works and Government Services Supply Manual (Supply Manual), sections 5.070 to 5.111;

Contracting Policy, Appendix U, sections 28 and 29.27 Ibid, section 5.070.


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3.5 Applicable Trade Agreements

(a) The North American Free Trade Agreement

The NAFTA came into force in Canada on January 1 1994. 31 TheNAFTA creates a free-trade area consisting of the United States,Mexico and Canada. Broadly speaking, the agreements purpose isto eliminate tariffs and trade barriers, improve market access amongthe NAFTA countries, remove investment restrictions and protectintellectual property rights. One of the key chapters of this tradeagreement relates to the purchasing activities of the three signatories.

Chapter 10 of the NAFTA sets out protections for potential supplierswith respect to government procurement. These protections applyto most government contracts that exceed certain values. Notably, theNAFTA excludes most Department of Defence contracts, just as doesthe WTO-AGP.

The NAFTA applies to government procurements with a value equalto or greater than certain monetary thresholds. The threshold changesperiodically and, until 2010 the monetary thresholds applicable toprocurements by government departments and agencies are C$76,500for goods, services or any combination thereof and C$9.9 million forconstruction services contracts. The monetary thresholds applicableto procurements by government enterprises are C$382,000 for goods,services or any combination thereof and C$12.2 million for constructionservices contracts. As between Canada and the United States, the

monetary threshold for the procurement of goods by departmentsand agencies is C$28,200. As noted above, these thresholds are revisedperiodically in accordance with the indexation and conversionprovisions in the NAFTA.

The obligations imposed on the federal government when conductingprocurement processes are extensive. Consequently, procurements subjectto the NAFTA must be open to NAFTA-based suppliers. Procurementsmust not be designed to exclude competition. The NAFTA guaranteesnational treatment and non-discrimination to goods originating inCanada, the United States and Mexico, as well as to the suppliers ofsuch goods and services in Canada, the United States and Mexico. TheNAFTA imposes procedural disciplines aimed at promoting transparency,predictability and competition in public sector procurements.

31 32 ILM 289.


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If the provisions of the NAFTA apply to a federal procurement, apotential supplier may challenge a procurement process that it considersto have been conducted in a way that contravenes those provisions.

The challenge, as we discuss later, is before the CITT.(b) World Trade Organization-Agreement On Government Procurement

As a result of the Uruguay Round of Multilateral Trade Negotiations,Canada entered into the WTO-AGP. The WTO-AGP signicantlyexpanded a previous multilateral agreement: the GATT Agreement onGovernment Procurement. The WTO-AGP came into force in Canada

on January 1, 1996. The obligations under the WTO-AGP are owed tosuppliers whose governments are signatories to the agreement.Currently, there are 28 members to this plurilateral agreement. 32

Like the NAFTA and AIT, procurement is subject to the WTO-AGPif it meets the monetary thresholds that currently stand at C$217,400for goods and services being procured by government departments oragencies and C$8.3 million for construction services. The proceduralrequirements and obligations set out in the WTO-AGP largely mirrorthe obligations set out in NAFTA.

(c) Agreement On Internal Trade

The AIT aims to reduce trade barriers within Canada withrespect to persons, goods, services and investments. 33 The purposeof the procurement chapter of the AIT is to ensure equal access togovernment procurement for Canadian suppliers in order to contributeto a reduction in purchasing costs and the development of a strongeconomy in a context of transparency and efficiency. 34 Although thescope of coverage is limited to Canadian suppliers, just who can qualifyas a Canadian supplier is the subject of considerable debate. 35

All Canadian provinces have signed the AIT, but not all have enactedlegislation so as to make it legally binding on the province. As such it isunlikely that the AIT has much legal weight with respect to provincesand municipalities. Nonetheless, its obligations do not add much to

32 See http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm10_e.htm#govt(date accessed: April 22 2009).

33 Agreement on Internal Trade, preamble.34 See Agreement on Internal Trade, article 501.35 See Canada (Attorney General) v Northrop Grumman Overseas Service Corp (2008), 293 DLR (4th) 335

(Fed CA), leave to the Supreme Court of Canada granted 2008 CarswellNat 4216.


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what is already required by these two levels of government atcommon law.

The AIT covers contracts tendered by most provincial and territorialgovernment departments. 36 It applies to most provincial contractswhich exceed C$25,000 for goods and C$100,000 for services andconstruction. 37 For procurement by covered municipalities, municipalorganisations, school boards and publicly funded academic, healthand social services bodies (MASH entities) the agreement applies forcontracts which exceed C$100,000 for goods and services, andC$250,000 for construction. 38

Article 506 of the agreement outlines requirements for procurement,including tender call requirements, evaluation criteria anddisclosure obligations.

(d) Canada-Chile Free Trade Agreement

The CCFTA was signed on December 5 1996 and implemented on July 5, 1997, establishing a comprehensive trade regime covering goodsand services and the bilateral investment relationship. 39 On November15 2006, the governments of Canada and the Republic of Chileconcluded an agreement to amend the CCFTA to include provisionsrespecting government procurements. These provisions came into effectin Canada on September 5 2008 and are incorporated as Article K bis ofthe CCFTA. Article K bis establishes rules and procedures for federal-level procurements, including non-discrimination rules for prescribedgoods, services and construction services by listed federal governmententities. Article K bis applies to procurements by governmentdepartments and agencies for goods and services in excess of C$76,500and in excess of C$8,300,000 for construction services contracts. Theapplication thresholds for Crown corporations are higher and applyto procurements for goods and services in excess of C$382,000 and toconstruction services contracts in excess of C$12,200,000.

36 Although the Northwest Territories and the Yukon have signed the AIT, Nunavut has not.37 See Agreement on Internal Trade, article 502.38 Agreement on Internal Trade, Summary of the Agreement, online, Industry Canada:

http://www.ic.gc.ca/eic/site/ait-aci.nsf/eng/h_il00064.html#chap_5 (date accessed: April 22 2009).See also Agreement on Internal Trade, Annex 502.4.

39 Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997Can. T.S. No. 50.


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4. PROVINCIAL/TERRITORIAL AND MUNICIPALPROCUREMENT SYSTEMS

4.1 Provincial/Territorial ProcurementProvincial tendering processes in the common law provincesare governed by the case law discussed above, subject to somequalication by the provincial/territorial legislation and case lawfurther particularising the duties under the two-contract framework.For example, in Ontario, the Ministry of Government Services Act 40 requires the provincial government to follow policies and directives

established by Management Board of Cabinet when undertakingprocurements relating to construction, renovation or repair of a publicwork. 41 In Ontario, the Ministry of Government Services is responsiblefor developing the procurement policy framework for the governmentof Ontario, including guidelines. 42 Procurement policies in Ontarioinclude an electronic tendering system, no preference for localvendors and a conict of interest policy. 43

The rules surrounding provincial tendering processes differ from thoseat the federal level due, in part, to the absence of recourse to the CITT,and, in part, to the fact that trade agreements including the NAFTA,WTO-AGP and the CCFTA do not apply to provincial procurements.

4.2 Municipal Procurement

Municipal contracting processes are generally governed by the commonlaw and codied in municipal purchasing bylaws, contracting policiesand purchasing procedures. Some provincial legislation, such as theOntario Municipal Act, 44 requires municipalities to maintain policies

40 RSO 1990 cM25 at s 16.41 See, for example, the Ontario Electricity Act 1998, SO 1998, C15, Schedule A which deals with

electricity procurement in Ontario, and includes a regulation, the Ontario Power AuthorityProcurement Process, O Reg 426/04 (hereinafter OPA Regulation) under the legislation whichoutlines principles for procurement processes for the Ontario Power Authority.

42 Government of Ontario, How to do Business with the Ontario Government (2008) Toronto:Queens Printer for Ontario, online: Ministry of Government Services, http://www.doingbusiness.mgs.gov.on.ca/mbs/psb/psb.nsf/Attachments/How+to+do+Business+-+Brochure/$FILE/Doing_Business_with_Ontario-Eng_Apr2008.pdf (date accessed: April 22 2009).

43 Ibid, at 3. For further information on Ontario procurement policies and procedures, please seeMinistry of Government Services, http://www.doingbusiness.mgs.gov.on.ca/mbs/psb/psb.nsf/English/forvendors (date accessed: April 22 2009).

44 SO 2001, c 25 at s 270.


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related to procurement of goods and services. 45 Municipal procurementpolicies will however often reect federal government procurement lawand policy and mandate competitive procurement procedures open

to all suppliers.Pursuant to article 102 of the AIT, the provinces are responsible forensuring municipality compliance with the AIT. However, unlike inthe case of federal Crown contracts where recourse to the CITT isavailable, provincial and municipal procurement processes lack thesame enforcement mechanisms.

4.3 RemediesThe available remedies relating to municipal and provincial publicprocurement are those available at common law. As mentioned above,the CITT dispute resolution process, which is available for federalcontracts, is not available for provincial or municipal procurements.

As such, bidders must seek remedies in the courts of the relevantprovince or territory. The litigation processes will tend to be less nimbleand expeditious than CITT proceedings. In the case of an action fordamages, it can often take several years for a matter to proceed throughthe various stages of a proceeding and will typically require all partiesto undergo relatively extensive pre-trial discovery.

The AIT does have an enforcement mechanism albeit an ineffectiveone imbedded within it for provincial or sub-provincial levelprocurements. 46 The MASH entities (typically used to describemunicipalities, universities, health facilities), under Section M(2), Annex 502.4, are required to have a non-judicial complaint process.Pursuant to the AIT, after all other reasonable means of recourse have been exhausted (and in the case of MASH entities, once the non-judicialcomplaint process has been completed), the supplier can register acomplaint with the province of the supplier which may trigger thecreation of a review panel that will issue a report. Should the provinceof the purchaser not comply with the reports terms, then the suppliersprovince may suspend benets of the AIT or impose retaliatorymeasures against the purchasers province. As menacing a prospect as

45 The Ontario Municipal Act does not outline any particular substantive requirements to beincluded in municipal procurement policies.

46 See Agreement on Internal Trade, article 513 (for provincial bid protest procedures) and Annex 502.4 Section M (for MASH entities).


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that complaint process may seem to be, the almost complete lack ofrecourse to it underlines its ineffectiveness.

By far the most common remedy sought in provincial, territorial andmunicipal procurements is an action for damages. Such claims willtypically proceed as breach of contract claims and seek damages forthe prots a bidder would have earned if it had won the contract. Itmay also be possible for bidders to seek restitution under the rules ofequity where a bidder would seek to be put in the place it would have been in had the legal wrong not been committed. For example, a biddermight maintain that a purchaser was unjustly enriched by retaining a

bid deposit in connection with a procurement that was conducted in anunlawful manner or claim restitution for other wasted expenditures inconnection with the bid preparation process.

Bidders also occasionally seek additional common law remediesknown as the prerogative remedies. These are extraordinary remedies,rooted in the discretionary powers exercisable by Canadian courts,and are designed to rectify misuses of public powers. While there

are several prerogative remedies in the common law,47

only two,certiorari and mandamus, are likely to have any application in publicprocurement disputes. Certiorari is used to quash, or invalidate, agovernmental decision, such as a decision to award a contract toa non-compliant bidder.

Conversely, mandamus is used to compel action and, in the procurementcontext, may be used to direct that a tender be awarded to a particular

bidder. A third prerogative remedy, known as prohibition, might also be available in rare circumstances. Prohibition permits a court to stop agovernmental decision maker from committing an error of jurisdiction,for example, by awarding a contract to a non-compliant bidder. Theseremedies may also be used to seek orders requiring purchasers to altertheir conduct during a tendering process or to cancel an improperlyawarded contract.

The threshold for obtaining a prerogative remedy is relatively high. Notonly must the petitioner establish that a tendering authority has madeor is about to make a fundamental legal error, the petitioner must alsoestablish that its case would be an appropriate one for the remedy to beexercised. Prerogative remedies are discretionary, not automatic, andmay not be granted where other suitable remedies are available.

47 Perhaps the best known being habeas corpus.


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The difficulty of obtaining a prerogative remedy is similar to thedifficulties a claimant will have obtaining equitable remedies such asinjunctions or specic performance in that damages for lost prot will

typically fully compensate aggrieved parties for wrongs in procurementdisputes. Thus, in most cases, parties will litigate on the basis that theywould have been the successful proponent had a procurement beenconducted lawfully in order to obtain damages for lost prots.

Prerogative and injunctive remedies may however provide a moreexpeditious resolution to procurement disputes as parties can usually bring these matters much more quickly before the courts by way

of application.

5. CHALLENGES TO FEDERAL GOVERNMENTPROCUREMENT PRACTICES

5.1 Introduction

With the implementation of the FTA in 1989, a bid protest mechanism

was created for suppliers to the Canadian government. Article 1305of the FTA specied procedural obligations each party was to providein order to achieve the goal of non-discrimination in governmentprocurement practices.

One of the most important obligations was the requirement thateach party provide and maintain equitable, timely, transparent andeffective bid challenge procedures for procurements. 48 To achieve this

goal, the Procurement Review Board of Canada (PRB) was created tohear challenges to Canadian federal government procurement practices.The infrastructure of the PRB was modest as it only had one decisionmaker its chairman. Nevertheless, it introduced a much-needed levelof independent scrutiny of government procurement practices.

5.2 Canadas Bid Challenge Agency:The Canadian International Trade Tribunal

In 1994, with the enactment of NAFTA, a new adjudicative bodywas charged with the responsibility to deal with bid challenges.On January 1, 1994, the CITT was mandated to receive complaints

48 Article 1305.3 of the FTA.


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pertaining to any aspect of the procurement process, to conduct inquiriesand to make determinations in respect of designated contracts under theNAFTA, and shortly thereafter to contracts under the WTO-AGP and

the AIT.The CITT was granted an extensive legislative and regulatoryframework setting out its mandate and processes. Before receivingits bid protest jurisdiction, the tribunal had jurisdiction to deal withdumping, subsidy and safeguard investigations under the Special ImportMeasures Act 49 and appeals against tariff classication and value forduty decisions of the Canada Border Services Agency under the

Customs Act.50

The CITT is an independent quasi-judicial body acting in anautonomous and independent manner. 51 It has all the rights, powers andprivileges of a superior court of record, 52 giving it the authority to dowhat is necessary and proper in order to exercise its jurisdiction. Thetribunal has authority to examine witnesses, order the production ofdocuments, inspect documents and the power to enforce its orders. 53

In keeping with the administrative nature of its proceedings, the CITTis to conduct its hearings as informally and expeditiously as thecircumstances and considerations of fairness permit. 54 In order toachieve that legislative objective, the CITT has issued a user-friendlyguide to inform parties about bid challenge procedures and to facilitatethe timely disposition of cases. 55

The importance of having procedures that are both effective andexpeditious is made apparent by the requirement in the CanadianInternational Trade Tribunal Procurement Inquiry Regulations 56 thatdirects the CITT to issue its ndings and recommendations within90 days from the date of the ling of a complaint. 57 While the

49 RSC 1985, c S-15.50 RSC 1985, c 1 (2nd Supp).51 See the CITTs website: http://www.citt.gc.ca (date accessed: April 22 2009).52 Sections 17(1) to (2) of Canadian International Trade Tribunal Act , RSC 1985, c 47 (4th Supp.).53 Section 17(2) of Canadian International Trade Tribunal Act .54 Section 35 of Canadian International Trade Tribunal Act .

55 See for example Procurement Review Process: A Descriptive Guide (2009),http://www.citt.gc.ca/Publicat/guide_e.asp (date accessed: April 22 2009).

56 SOR/93-602.57 Section 12(a) of the Canadian International Trade Tribunal Procurement Inquiry Regulations ,

SOR/93-602.


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it would adjudicate complaints even when the subject matter ofthe complaint took place during the time the contract was beingperformed. The CITT noted [it] is not a simple matter of contract

administration if a mandatory term of a procurement is changed after bids are received or even after a contract is awarded. . 64

(b) Filing A Complaint

The CITT will only decide to investigate a complaint once it is properlydocumented. In order for a complaint to be properly documented,the complainant must provide information relating to the nature of the

contract in dispute, the relevant government institution involved, anexplanation as to the grounds for the complaint, a detailed statementindicating what breach of a trade agreement has been committed anda statement of the relief being requested. 65

If the complaint does not include the required information, the CITTmay direct it to correct these deciencies. 66 A complainant must be quickto respond to the CITTs direction to provide the required information because the complaint may be dismissed for a failure to be timely.

(c) Acceptance Of A Complaint For Investigation

When deciding whether to accept a complaint for inquiry, the CITTmust be satised that the following conditions have been met: 67

the complaint was led within the prescribed time limits;

the complainant is a potential supplier; the complaint is in respect of a designated contract;

the information provided by the complainant discloses a reasonableindication that the procurement process contravenes the provisions inone of the relevant trade agreements.

64 Ibid, at para 41.65 Sections 30.11(2)(a) to (h) of Canadian International Trade Tribunal Act; section 6(1) of the Canadian

International Trade Tribunal Procurement Inquiry Regulations, rule 96 of the Canadian International TradeTribunal Rules, SOR/91-499.

66 Section 30.12(2) of Canadian International Trade Tribunal Act, Rule 99 of the Canadian InternationalTrade Tribunal Rules.

67 Rule 99 of the Canadian International Trade Tribunal Rules.


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As noted above, once a complaint is properly documented, the CITTmust decide within ve days whether it discloses a reasonable indicationof a breach. 68 Since the CITT only has limited information at the time it

decides to initiate an investigation, the complainant is only required,in practice, to meet a modest evidentiary threshold. 69

(d) What Do Potential Suppliers Complain About?

The range of issues forming the basis of complaints is wide and diverse.Historically, a number of complaints have dealt with sole source,or limited tendering procurements, conducted without a competitive

tender process.70

Sole sourcing a contract by government institutionsis permitted; however, circumstances in which this is allowed arelimited. 71 For example, a government institution is entitled to solesource a contract where previous competitive tendering processes have been unsuccessful, where purchases are made under exceptionallyadvantageous conditions, where the goods purchased are additionaldeliveries or replacement parts by an original supplier, and where thegoods being procured are proprietary and thereby protected by patents,

copyrights or other exclusive rights.Potential suppliers may complain that the technical specications inthe solicitation documents are written in a way that favours one supplierover another. 72 Complainants may also claim that bid documentsdo not clearly indicate how bids submitted will in fact be assessed.The requirements of Canadas procurement regime and the mannerin which they have been interpreted by the CITT indicate that the

weighting criteria used in the evaluation process must be broadlyset out in the solicitation documents. 73 This is required in order for bidders to know what points will be given for the differentcomponents making up their bid package.

68 Sections 7(1)(c) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.69 K-Lor Contractors Services Ltd(November 23 2000), PR-2000-23; EH Industries Ltd v Canada

(Minister of Public Works & Government Services) (2001), 267 NR 173 (Fed CA).70 See Report of the Auditor General of Canada into Contracting for Professional Services:

Selected Sole-Source Contracts, Chapter 26, December 1998.71 Article 506 and Annex 502.1B AIT; Article 1016 NAFTA; Article XV WTO-AGP.72 Article 1007 NAFTA, WTO-AGP VI, Article 504 AIT.73 Article 1013 NAFTA, WTO-AGP XII; Brookeld Lepage Johnston Controls Facility Management Services

(September 6 2000), PR-2000-008/021.


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to do so, is consistent with the overall purpose and intent of the bidchallenge process. 81 In the courts opinion, the government was notpermitted to rely on the public interest exception to avoid implementing

the recommendations in the circumstances. The court stated: in taking procedural steps to circumvent the determinationmade by the Tribunal, the Ministers delegate acted contrary tothe purpose and intent of the legislative scheme, particularly thestatutory requirement in sub-section 30.18(1) of the CITT Actthat he implement the Tribunals recommendations to the greatestextent possible. Given his obvious disagreement with the Tribunals

interpretation of the impugned provision of the RFP, the Ministersdelegate ought to have challenged the determination directly byinstituting judicial review proceedings, rather than by purportingto rely on the public interest exception in Article 1015(4)(c) of the NAFTA in an attempt to avoid it. NAFTA and the Agreement onInternational Trade are important trade Agreements which imposesignicant obligations on our government institutions, and thelegislative scheme implementing them into Canadian law ought tobe rigorously respected.82

6. JUDICIAL REVIEW OF CANADIAN INTERNATIONALTRADE TRIBUNAL DETERMINATIONS

A determination made by the CITT may be challenged by a party uponling an application for judicial review with the Federal Court of Appeal. 83 Parties who can challenge a determination including the government,through the Attorney General of Canada, or anyone directly affected by the matter in respect of relief sought, which would typically includethe complainant or an intervenor in a CITT proceeding. 84 The court maygrant relief in those cases where it believes the CITT erred, in particular:

18.1(4) Grounds of Review The Trial Division may grantrelief under subsection (3) if it is satised that the federal board,commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction orrefused to exercise its jurisdiction;

81 Wang Canada Ltd v Canada (Minister of Public Works & Government Services), [1999] 1 FC 3 (TD).82 Ibid, at p 97.83 Section 28 of the Federal Courts Act , RSC 1985, c F-7.84 Sections 18.1(1) and 28(2) of the Federal Courts Act.


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government procurement, recent case law from the Ontario Court of Appeal casts doubt on that presumption. 89 As a result, disgruntled biddersmay be able to select the forum in which to challenge a federal government

procurement process, a development viewed favourably by members ofthe supplier community.

7. THE PROCUREMENT OMBUDSMAN

On May 5 2008, the federal government created a new Office of theProcurement Ombudsman that has the authority to review complaintsrespecting the award of contracts for goods valued at less than C$25,000and for services valued at less than C$100,000. The Office is designedto ll the gap and provide an administrative dispute resolution processfor disputes that do not fall within the jurisdiction of the CITT. TheProcurement Ombudsman has not been given the jurisdiction to cancelor change the terms and conditions of contracts, but does have the powerto recommend that compensation be paid in certain circumstances. Whilestill very short, the period for ling a complaint with the Ombudsman islonger than for making complaints to the CITT and is generally 30 daysfrom public notice of the contract award. 90

8. BEST PRACTICES

8.1 When Submitting Bids

(a) Read The Bid And Provide Exactly What Is Requested

The single most important piece of advice for suppliers bidding onCanadian government contracts is: Read the tender documentsand all accompanying evaluation criteria. While this precept mayappear obvious, it is of fundamental importance when respondingto government solicitations. The two-contract approach, the adoptionof the trade agreements and the resulting common law jurisprudencepermitting owners to accept only compliant bids has encouraged a

rigorous and somewhat formalistic approach to the evaluationof competing bids.

89 See for example G-Civil Inc v Canada (PWGSC), 2008 ONCA 892.90 Further information about the Office and its other functions are found online at the Offices website:

http://opo-boa.gc.ca/index-eng.html (date accessed: April 22 2009).


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Governments will typically use scoring sheets and assign ranges ofpoints to the criteria set out in the solicitation documents. Evaluatorsreviewing bids will typically consider each criterion individually,

assign points for each criterion according to set range and sum upthe total points available on scoring sheets to determine a winner.Overlooking or ignoring an evaluation criterion will put a bidder behind in points, as will non-responsive answers. Similarly, if asolicitation document instructs bidders to list their experience in aparticular manner or to calculate their price using a particularapproach, follow that approach. Depending on the nature of therequirement, a bidder will lose points or an evaluator may simplydisqualify the bid as being non-compliant. Proponents will also notadvantage themselves by providing information that is not requestedin the solicitation documents, as the evaluators are restricted toconsidering the criteria stated in the solicitation documents.Having a credential that is outside the evaluation criteria will beirrelevant for the government evaluator who will be deciding onthe points to ascribe to each of the stated criteria.

In this regard, it is important for bidders to ensure that theirproposals satisfy all mandatory requirements of a solicitation because the failure to do so may be fatal to a bid even if therequirement itself does not appear to affect the price or overallability of a bidder to perform the services being requested. 91 Notall requirements will necessarily be expressly stated in the tenderdocuments. Standard terms may be incorporated by reference,particularly in federal procurements where the governmentsprocuring department, PWGSC, has developed various standardacquisition clauses. 92 It is important to locate and satisfyconditions that are incorporated by reference.

91 For example, in Surespan Construction Ltd v Canada (Attorney General), 2008 FCA 57, the FederalCourt of Appeal upheld a decision of the CITT to not conduct an inquiry into a complaint by a bidder that was disqualied for not signing the front page of its bid. Having accepted the Tribunalsconclusion that requirement was mandatory, the Federal Court of Appeal was not inclined toconsider the bidders argument that the government could have appropriately exercised its discretionto waive minor irregularities. The court found that the characterisation of the requirement asmandatory was sufficient to avoid the subsequent inquiry.

92 See http://sacc.pwgsc.gc.ca/sacc/index-e.jsp. (date accessed: April 22 2009).


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Time expended ensuring a bid is fully responsive to the specic requestsis simply time well spent.

(b) Organise Responses And Provide Sufficient Detail To Be Responsive A corollary of the foregoing is for bidders to remember that governmentevaluators will be carefully considering how well each requirement ina solicitation document has been satised. Thus, successful bidders willnot include statements to the effect that particular requirements have been satised, but will include sufficient detail in their proposals for anevaluator to reach that conclusion based on the information included

with the bid. The Government of British Columbia has used theexample to illustrate effective bid writing technique: 93

Statementin RFP

Building should be readily accessible by people withphysical disabilities.

Insufficientresponse

Our building is readily accessible by people with disabilities.

Recommended

response

Our building was selected with our clientele in mind. We

are on a main bus route, the front door of the building isright on the sidewalk in front of the bus stop, and there isa parking lot directly beside the building with a drop-offzone and parking stalls for people with disabilities. Theoors inside the building are covered with non-slip coatingand are painted with clearly visible markings to assistpersons who are visually impaired. Although there is alarge elevator to the second level, most events take placeon the main oor, which has no steps. The information/security desk at the building entrance is staffed at all times.

The strengths of the latter approach are that it demonstrates anunderstanding of the governments objective and provides sufficientinformation for the evaluator to assess compliance.

(c) Consult Government Procurement Resources

The federal government and most provinces, territories andmajor municipalities all have online procurement resources forsuppliers. Many of these resources contain information to assist biddersand list procurement opportunities. Government Internet

93 See http://www.pc.gov.bc.ca/data/docs/ProponentRFPGuide.pdf (date accessed: April 22 2009).


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sites provide valuable resources and should be consulted whenconsidering procurement opportunities within Canada. 94

8.2 When Questioning The Award Of A Contract ToAnother Bidder

Broadly speaking, procurement challenges will focus on issues ofprocedural fairness. Courts and tribunals will be generally unwilling tosecond-guess bona de evaluations which are performed in good faith bygovernment evaluators. The CITT has, in this regard, observed:

The Tribunal periodically receives complaints alleging thatthe scoring by a government entity against individual criteriawas unfair. However, the Tribunal cannot regularly undertakea re-weighting of the points assigned by the government entitiesunless the treatment of the bid under review amounts to a denialof fair treatment and, consequently, to a breach of the relevanttrade agreements. Absent such unfair treatment, the Tribunalwill generally defer to the judgement of the officials who are best

qualied to assess the merits of the bids. Consequently, even thoughthe Tribunal may disagree with the points awarded to a bidderin respect of specic evaluation criteria, it will not substitute its judgement for that of the government officials, unless their conductamounts to a breach of one of the trade agreements.95

Successful challenges will therefore typically require the demonstrationof a more fundamental error that creates unfairness in the overall

procurement process. These more fundamental errors will includeawarding a contract to a non-compliant bidder, the failure to disclosethe evaluation criteria to bidders, a biased evaluation by government

94 See Canada: http://www.contractscanada.gc.ca/;Ontario: http://www.doingbusiness.mgs.gov.on.ca;

Quebec: http://www.tresor.gouv.qc.ca/en/marche/index.asp; Alberta: http://www.servicealberta.gov.ab.ca/Govt_BuySell.cfm andhttp://www.purchasingconnection.ca/;British Columbia: http://www.bcbid.gov.bc.ca/open.dll/welcome

Saskatchewan: http://www.sasktenders.ca/; Newfoundland and Labrador: http://www.gpa.gov.nl.ca/;Manitoba: http://www.manitoba.ca/mit/psb/index.html;

Nova Scotia: http://www.gov.ns.ca/tenders/;New Brunswick: http://www.gnb.ca/0099/tenders/index-e.asp;

Prince Edward Island: http://www.gov.pe.ca/tenders/; Yukon: http://www.gov.yk.ca/tenders/;

Northwest Territories: http://www.contractregistry.nt.ca; Nunavut: http://www.gov.nu.ca/businessguide/bg.pdf (date accessed: April 22 2009).95 Complaint by FMD International Inc, File No: PR-2000-007.


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officials and so on. The difficulty is, of course, that the morefundamental unfairness will often manifest itself in the evaluationof individual criteria.

(a) Request A Debrief With The Contracting Authority

A debrief with government officials following an unsuccessfulprocurement provides bidders with a valuable opportunity tounderstand why their proposal was not selected. A debrief with thecontracting authority will provide a bidder with an opportunity tounderstand how the procurement process was conducted and to gainsome understanding as to whether the proposal was evaluated inmanner that was consistent with the solicitation documents and theapplicable trade agreements. A bidder should leave a debrief with anunderstanding of the perceived weaknesses in its proposal and theinformation necessary to improve its standing when responding tosubsequent proposals.

A debrief also provides some opportunity for assessing whether thereis a basis for challenging the award. Depending on the circumstances,it may or may not be advisable for an unsuccessful proponent torequest the presence of legal counsel. Counsel may assist with focusingquestions, but may also lead to the government having a more guardeddiscussion. It is however always advisable to make contemporaneousnotes of a debrieng.

(b) Quickly Raise Any Concerns About A Procurement Outcome

Limitation periods, particularly in connection with federal governmentprocurements, can be short and unforgiving.

Complaints to the CITT must be made within 10 working days of the dayon which a complainant becomes aware or should reasonably be awareof the basis for a complaint. 96 By rst making a complaint to the relevantgovernment institution, a bidder can in effect extend this ling deadline, but the departmental complaint must also be made within the 10 workingdays of the day on which the bidder knew or should have known aboutthe basis for a complaint. 97 A bidder will then have 10 working days fromthe time it has actual or constructive knowledge of the denial of relief

96 See section 6(1) of the Canadian International Trade Tribunal Procurement Inquiry Regulations.97 Ibid, section 6(2).


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to raise the complaint before the CITT. Given these timing issues, it willalmost invariably be benecial to rst raise complaints with the applicablegovernment institution.

While other limitation periods may not be as short, it is alwaysimportant to consult counsel promptly when a procurement outcomeis troublesome or unexpected.

9. CONCLUSION

Public procurement in Canada is a complex web of laws and regulations

governed by common law principles and the obligations containedin trade agreements. Although tens of thousands of governmentcontracts are awarded yearly by governments from coast to coast,generally speaking, the fairness of those acquisition processes cannot bequestioned. Government officials work hard to ensure that the mannerin which they procure goods and services meets the required standardsand, as we have noted, they generally succeed. However, for thosesuppliers who feel their rights have been breached, a variety of judicialand quasi-judicial processes are available to review the governmentscontracting behaviour.


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SCHEDULE I

Canadian International Trade Tribunal

Procurement Complaint ChecklistIdentify The Parties

Name of bidder or prospective bidder and full contact information(address, telephone, fax number, etc.)

Name of lawyer with full contact information, if applicable

Name government requisitioning authority, i.e., the governmentalorganization for whom work will be done

Name of contracting authority, i.e., governmental organizationadministering the procurement process

Identify The General Type Of Procurement

Type of procurement that is to be the subject of the dispute: ( e.g.,Request for Proposal (RFP), Request for a Standing Offer (RFSO),Request for a Supply Arrangement (RFSA), Invitation to Tender (ITT),Letter of Interest (LOI), Advance Contract Award Notice (ACAN))

Government solicitation and/or contract number

Short description of the product and/or service thegovernmental organization is seeking to acquire

Estimated value of the procurement: i.e., value established bythe governmental organization in its Notice of Procurement, ifknown; if unknown, the value of the complainants bid

Date on which the governmental organization issued its solicitation(e.g., the date the solicitation was posted on MERX)

The deadline the governmental organization gave forsubmission of bids

Contract award date, if applicable

Name of the successful bidder, if applicable


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Provide Information Concerning Objection ToGovernment Institution

State whether an objection has been made to the applicablegovernmental organization

Include the date the objection was made

Briey describe the nature of the objection and the relief requested

Provide the response of the governmental organization and the dateon which the response was received

Set Out Legal Basis For The Complaint

Describe the facts giving rise to the complaint in sufficient detail forthe CITT to be able to assess whether there is a reasonable indicationthat the procurement has not been carried out in accordance withthe applicable trade agreements i.e., whichever of Chapter Ten ofNAFTA, Chapter Five of the Agreement on Internal Trade or the

World Trade Organization-Agreement on Government Procurementor Chapter K bis of the Canada- Chile Free Trade Agreement applies

Provide details of the facts and arguments supporting eachground of complaint

Make specic reference to the provisions of the applicabletrade agreements that the government institution is allegedto have breached

Identify The Relief Requested

Indicate what relief you are requesting (e.g. cancellation ofprocurement process, re-evaluation of bid, re-tendering ofprocurement, lost prots, bid preparation costs, complaint costs, etc.)

Provide Supporting Documents

List and include copies of all documents relevant to the complaint

The relevant documents will include all government tenderdocuments, the complaints proposal and may include othergovernment documents relating to the procurement,


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documents published on MERX and correspondence betweenthe supplier and the government institution concerning thesuppliers complaint

Request Condential Treatment Of Condential AndProprietary Information

Identify the information that should be kept condential, if any

Prepare a condential version of the complaint containing thecondential information and documents

Prepare a public version of the complaint that includes a summaryof the condential information that can be publicly disclosed and anexplanation as to why the condential information is being redactedfrom the public version

Request condential treatment be maintained over the condentialversion of the complaint

Provide Copies To CITT The original, plus seven copies of the complaint and the relevant

documentation, must be provided when submitting a complaint


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Calgary

Jeffrey D. Vallis403.232.9404

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Patrice Martin

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Gerry [email protected]

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Matthew R. [email protected]

Vancouver

Doug R. Sanders

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