Trade Agreement Bid Protest Strikes Down Community Benefits Criterion
Public procurement in Canada is subject to non-discrimination and transparency requirements contained in various inter-provincial, regional, national and international trade agreements. These agreements are designed to ensure equal access to significant government contracts, regardless of jurisdiction of origin of bidders.
OpenTrue Non-Compliance in B.C.
The City of Kamloops in B.C. ran a tender for construction of the Aberdeen Fire Hall. True Construction Ltd. submitted the lowest bid of $3,434,526. The True bid was rejected by the City as substantially non-compliant, and the City awarded the contract to Tri-City Contracting (B.C.) Ltd.
True challenged the award to Tri-City, alleging that its bid was capable of acceptance because any omissions were simply minor irregularities, and the RFx gave the City the express right to waive minor irregularities. In turn, the City argued that, even if the True bid was substantially compliant, the City had acted properly within its discretion to reject the bid and award to Tri-City.
OpenUnion Membership as a Prerequisite to Bid Eligibility – Did BC Overreach and Reward Political Allies?
Under a Community Benefits Framework, the BC government required pre-qualified contractors to obtain workers exclusively from a Crown Corporation - BC Infrastructure Benefits Inc. This effectively required all workers on the project to be have union affiliation. The substantive issues in the judicial review application filed by Independent Contractors and Businesses Association were referred to the Labour Relations Board.
OpenUnsuccessful Incumbent Challenges Loss of Contract
Aquatech operated water and wastewater facilities for the Alberta government in the Kananaskis region for sixteen years and submitted a response to an RFP for the same services for a further five years. Aquatech applied for judicial review of the government’s decision to issue the contract to a competitor, H20 Innovations, not then operating such facilities in Alberta, alleging that H20 had not met the mandatory requirements related to in house resources with specific certification. Aquatech asked the court to strike down the contract award, or to order a further bidding process. Claim dismissed. Discretion clauses gave government the right to waive minor defects, no unfairness or unreasonable decision found.
OpenVerification Testing Deficit or Evaluating in Good Faith - YBTJ
RFP issued by PWGSC for shelter system and support required bidders to provide testing information as the first phase of the RFP evaluation. PWGSC found CAMEC bid failed two of the required tests, so the proposal was rejected. CAMEC challenged the rejection, complaint found to be valid in part.
OpenWe Paid for It, So We Own It, Right - Spotlight on Legal Risk
Legal article on copyright ownership including illustrations.
OpenWhat Determines If a Defect In a Bid Is Material or Non-Material - YBTJ
Construction tender requiring bidders to complete a Preliminary Construction Schedule (PCS). The contract was awarded to Marwest Industries Ltd. Despite the fact that this bid did not include a PCS. Maglio, a rival bidder, challenged the award to Marwest and the Court discussed whether the owner was entitled to waive this omission as a 'minor defect'. The Court found that the omission was a material defect and therefore the Marwest bid should have been rejected as non-compliant. Discussion of the two-part test in the Graham Industrial v GVWD case.
OpenWhat Happens When the Lowest-Priced Compliant Bidder Can't Follow Through - YBTJ
A federal government RFP for diabetic test strips contained only mandatory submission criteria and a bid price submission. The contract was awarded to Medi+Sure's competitor and then was terminated by mutual consent a month later, as the company was unable to secure the product it has proposed. Medi+Sure argued that the winning proposal was non-compliant and should have been rejected, therefore the contract should now be awarded to Medi+Sure rather than retendered. The CITT found the complaint valid and that Medi+Sure would be awarded the contract at the bid price it had originally proposed.
OpenWhen are Unacceptable Operational Risks Acceptable -YBTJ
Use of trademark IP descriptors in technical specifications led to a challenge to the CITT by Enterasys of three separate federal government solicitations for computer networking equipment. These procurement processes resulted in contract awards that clearly fell within the definition of “designated contracts” under section 30.1 of the Canadian International Trade Tribunal Act, and they were subject to the provisions of the North American Free Trade Agreement (NAFTA). On the prequalified bidders list, however, Enterasys did not submit a bid for any of the three procurements it challenged.
At the heart of the Enterasys complaint was the federal government’s use of trademark information to describe its requirements for the switches, in violation of Article 1007(3) of NAFTA. The CITT found the complaint to be valid and the federal government appealed on the issue of jurisdiction of the CITT.
When can a judicial review application be converted to a trial? You be the judge!
Article discussing the legal tests and practical application of the Freedom of Information legislation in Canada, as it relates to release of information by public procuring entities. Implications for private sector bidders and contractors.
OpenWhen Does Misinterpretation Lead to a Breach of Contract A? You Be the Judge!
Engineering company hired by the municipality to conduct a tender process for sewer upgrade project issued three addenda after closing. CF Construction challenged the decision to reject its bid as non-compliant. The Court found that a misunderstanding and misinterpretation led the municipality and its consultant to incorrectly conclude that the CF Construction bid was non-compliant. Damages for loss of profits assessed at $343,745. While the Court found the contract documents ambiguous and confusing, ultimately it dismissed both the claim and the counterclaim.
OpenWhen is a Discretion Clause Not Discretionary -YBTJ
Test your understanding on interpreting a clause that gives an owner discretion to compensate contractors for an increase in certain commodity prices, if the price has escalated between when the pricing was submitted in the tender, and when the work is actually performed (and the commodity purchased).
OpenWhen is a Mistake an Actionable Wrong? YBTJ
The University issued an RFP for architectural services, and the winning bidder was Riddell Kurczaba Architects (“RKA”), along with a signature architectural firm based in Ontario, Baird Simpson. Once RKA had been selected, the process allowed for the beginning of negotiations for the specifics of the Service Agreement alongside the commencement of RKA’s work, pursuant to an ‘early-start’ letter agreement. The scope of work changed during construction and there was a dispute over the final amount owning. The contractor claimed $1.9M and the University counterclaimed for $360K.
OpenWhen is a successful bidder’s financial information to be released under FOI legislation
Shannex Inc won contract for construction and operation of nine nursing homes in NS. Pursuant to a Freedom of Information request the Province decided to release information on annual operations funding paid to Shannex, including per diem rates. Shannex appealed the proposed disclosure on grounds that the information is exempt from release under the legislation. NS court sided with Shannex in agreeing the information was protected by the exemptions in the legislation.
OpenWhen will the CITT Interfere with Evaluation Committee Decisions?
Deloitte responded to an RFP consulting services for a three-phase fleet procurement for Canadian Coast Guard Deloitte received full marks for Phase 1 and 3, but not for Phase 2. Deloitte challenged the evaluation process arguing that, but for the error scoring Phase 2 of their proposal, they would have been successful. The facts show that three of the four evaluators who initially awarded full points to Deloitte on their individual evaluations actually changed their mind at the consensus scoring stage. The criterion in question had to do with experience in simulation modelling. Providing important clarity, the CITT affirmed that tribunals interfere in evaluations only when evaluations are unreasonable, and will substitute their judgement for that of the evaluator only in one of five specific scenarios.
OpenWhen Will the Courts Interfere with a Contract Award
Aquatech operated water and wastewater facilities for the Alberta government in the Kananaskis region for sixteen years and submitted a response to an RFP for the same services for a further five years. Aquatech applied for judicial review of the government's decision to award the contract to a competitor, alleging the competitor's bid was non-compliant, and sought an order stopping the contract award. The competitor H20 Innovation was granted intervenor status. Aqutech appealed the decision granting H20 intervenor status, and sought an order delaying contract award. After reviewing the requirements for an interim order delaying contract award, the Alberta Court of Appeal dismissed the application by Aquatech.
OpenWithholding Documents from the Public
A journalist requested information from the BC government related to a contract it had awarded to Plenary Group Canada Ltd. for a correctional center construction project. The government withheld part of the information, having determined that it would harm the financial interests of Plenary Group. The BC Office of the Information and Privacy Commissioner ordered the Ministry to release that information, and the decision came before the court under a judicial review application. After a consideration of whether the information was 'supplied' as required by the exemption in section 21 of FIPPA the court quashed the decision to release, and remitted the matter back to the OIPC for re-determination.
OpenWorkplace Safety Violations Result in Jail Time
Both civil and criminal charges were brought against a construction company that ignored standard safety protocols, resulting in death of four workers. Individuals and companies fined OHSA violations, criminal convictions resulted and allegations of blacklisting whistleblowers proven true.
OpenYBTJ Addenda Withdrawals and Closing Time Blues
In this case a bidder relied on information provided by counter staff with respect to the exact closing time, and had its bid rejected as a result. The Court had to consider the various documents and addenda which differed with respect to the precise closing, as well as the issue of reasonable reliance on counter staff.
OpenYBTJ Irrelevant Information or Incumbent Advantage (includes Answer)
ACS, a bidder on an RFSO (standing offer) issued by the RCMP for ethyl alcohol standards used for testing levels of alcohol consumption, requested historical information before closing related to shipment size and locations as well as yearly usage, in order to calculate accurate bid pricing. The requested information was not provided however the RCMP did suggest a formula the help with calculation of pricing. ACS bid and was not successful as its price was not the lowest. ACS filed a compliant with the CITT alleging that the RFSO favored the incumbent who had access to the requested information.
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