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GOVERNMENT PROCUREMENT COMPLAINTS

PUTTING YOUR BEST FOOT FORWARD AT THE CITT - BEFORE JUDICIAL REVIEW

Adjudicating government procurement complaints is one of the most important functions the Canadian International Trade Tribunal (“CITT”) plays for Canadian businesses.  In these cases, the CITT serves as the referee when government contracts are handed out improperly.

As a recent decision of the Federal Court of Appeal (“FCA”) indicates, it is best to put one’s best foot forward before the CITT because the courts afford significant deference to the decisions the CITT makes, and it will be extremely difficult to have the decisions overturned on judicial review.

ADGA Group Consultants Inc. v. Canada

In ADGA Group Consultants Inc. (“ADGA”), the government awarded service contracts through a procurement process to a successful bidder.  After winning those contracts, the successful bidder proposed significant changes in how the contracts would be performed.  The losing bidder, ADGA, filed a complaint with the CITT, characterizing this as a “bait and switch”.  The CITT rejected the complaint and found that the changes constituted matters of contract administration, to which deference is owed.

On judicial review, the FCA largely upheld the CITT’s approach and emphasized that the CITT is not to re-do evaluations or substitute the judgment of procurement evaluators, even where a disappointed bidder advances a plausible alternative view.  The Court highlighted that the appropriate level of deference lies within the bailiwick of the CITT.  The FCA would not interfere with the CITT’s decision absent unreasonableness.

Practical Implications

This decision underscores how difficult it can be to succeed with procurement complaints, particularly at the judicial review stage.  While allegations such as “bait and switch” may appear compelling, the FCA reaffirmed that it will afford significant deference to the CITT

and to procurement evaluators.

This further reinforces the importance of ensuring that procurement-related arguments are properly framed and fully addressed before the CITT.

Takeaways

Government procurement is especially important to all Canadians, including Canadian businesses seeking to benefit from government contracts.  The procurement process must be followed by Canadian government entities awarding these contracts, and when it is not, complaints may be made to the CITT.

That said, appealing decisions of the CITT can be difficult, which makes it important to always put one’s best foot forward before the CITT.

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