Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Simple Currency Mistake Acceptable Reason to Reject Bid Proposal

On April 22, 2008 [posted April 30, 2008], the Canadian International Trade Tribunal (CITT) issued its decision in a bid challenge by Integrated Procurement Technologies, Inc., a U.S.-based company.  Integrated Procurement Technologies, Inc. has bid on a RFP issued by Public Works and Government Services Canada (PWGSC). The price quotation of the proposal submitted on the bid closing date was in US dollars.  A requirement of the RFP was that the price quotation be stated in Canadian dollars.  After the bid closing date, Integrated Procurement Technologies recognized the error and informed PWGSC that it had meant to indicate that the price quotation was in Canadian dollars as required.  PWGSC rejected the proposal as not technically compliant.

The CITT held that PWGSC was correct in rejecting the change to the bid proposal after the bid closing date.  The CITT issued the following moral of the story:

"The Tribunal is of the view that the responsibility for ensuring that a proposal is compliant with all essential elements of a solicitation ultimately resides with the bidder. Accordingly, it is incumbent upon the bidder to exercise due diligence in the preparation of its proposal to make sure that it is compliant in all essential respects."

It is questionable whether the CITT decision is consistent with Canada's international obligations.  If a bid is otherwise technically compliant, would a mandatory criteria that price proposals be stated in Canadian dollars give Canadian bidders an advantage over foreign bidders who do not generally quote in Canadian dollars?  It is likely that a Canadian company would normally issue invoices and price quotations in Canadian dollars.  It is less likely that  a foreign company would have computer programs that issue invoices in Canadian dollars.  It is more likely that a foreign company would make an inadvertent error.  As a result, it is more likely that a foreign technically compliant bid would be rejected  as a result of the currency error in the price proposal.

Would it not be in the interest of the Canadian taxpayer/public purse that PWGSC seek a clarification regarding currency of the price offered when there is a technically compliant bid to provide the goods and/or service required in the manner and time required?  If the clarification yields the lowest priced technically complaint bid, would it not be most appropriate to determine that bid proposal to be the winner of the competitive solicitation?  If the answer is "yes", then it would suggest that the foreign bidder's technically compliant bid proposal is being rejected in order to favour another bidder.

The CITT had determined that the currency of the price proposal is substantive in nature.  The CITT stated that:

"Given different currency values and exchange rate fluctuations, the currency in which a price quotation is denominated is not simply an issue of “form”, but rather one of “substance”, insofar as it bears directly upon the actual amount of the bid.

Is this a fair interpretation?  i can see both sides of the argument.  However, I must side on reasonableness - if all other mandatory technical criteria have been satisfied, the currency of the bid is an issue of form - the actual amount is what is substantive in nature.  if a clarification brings the best value, it should be allowed.

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