Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Potential Bidders May Go To CITT If Canadian Government Contract Is Improperly Cancelled

A potential bidder, bidder or contract awardee may have a remedy at the Canadian International Trade Tribunal (CITT) if a solicitation by the Canadian Government is improperly cancelled in order to divert the funds to another project.  There are many possible scenarios.  The Canadian Governmnet may have improperly determined that all bid proposals were not compliant with the tender documentation in order to cancel the contract and return the funds to Treasury Board.  Or, the government institiution may not respond to questions concerning the technical specifications and / or evaluation criteria because they have lost interest in the procurement.  Or, the government institution may attempt to engage in negotiations after the bid closing date in order to determine that the bids are non-compliant.  There are many other possibilities.

If htere is something not transparent or fair about a Canadian Government procurement, a potential bidder, bidder or awardee may be entitled to file a bid challenge  with the CITT. They must file a compliant and set out the facts and th ereasons for the complaint within 10 days of the government entity's actions that gave rise to the complaint.  This is a strict deadline.

The procurement must be a covered procurement under one of the following:

1) The WTO Agreement on Government Procurement;

2) Chapter 10 of NAFTA;

3) A procurement chapter of another free trade agreement to which Canada is a party (the Canada-Israel FTA, the Canada-Chile FTA and the Canada- EFTA FTA do not contain procurement chapters); or

4) Chapter Five of Canada's Agreement on Internal Trade (more broad in application than one would expect).

We recently filed a bid challenge for a client when all the bid proposals were determined to be non-compliant by the government institution and the contract was cancelled before the bidders were notified of the results of the evaluations.  This raised some concerns.

While I am not saying that this is going to be or is a widespread practice, it is possible in the current economic circumstancs that the procurement rules might not be followed.  Potential bidders and bidders will be relying on fair procurement practices and will have an opportunity to keep the opportunites alive or seek a remedy from the CITT should the solicitation not end in a fair and transparent manner.

For more information, please do not hesitate to contact Cyndee Todgham Cherniak at 416-307-4168.

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