PWGSC and bid protests

• PWGSC has promulgated a comprehensive set of supply policies that advise suppliers how the federal government manages its procurement process, and provide guidelines to government supply specialists regarding the processes they are to follow.

PWGSC has published these policies and guidelines in a Supply Manual which is available over the internet. The Manual essentially explains the nuts and bolts of how PWGSC carries out its supply activities.

• In order to ensure consistency in government contracting, PWGSC has also prescribed many standard terms and conditions which are to be used in the different categories of contracts issued by the Crown.

The government's standard terms and conditions are published in the Standard Acquisition Clauses and Conditions ("SACC") Manual, which is also available to the public over the internet.

• The Treasury Board Contracting Policy defines the objective of government procurement.

The objective is of government procurement is "… to acquire goods and services and to carry out construction in a manner that enhances access, competition and fairness and results in best value or, if appropriate, the optimal balance of overall benefits to the Crown and the Canadian people."

The Treasury Board Contracting Policy applies to all federal departments and agencies, including departmental corporations and branches designated as departments for the Financial Administration Act. However, certain transactions are excluded from the policy, such as:

1. revenue-producing contracts (sales and concession contracts, leases of Crown property) and the like;

2. contracts related to the acquisition of land (which are covered by separate statutes and regulations);

3. the transfer of goods, services or real property between departments, Crown Corporations, provinces, municipalities and the Territories;

4. grants and contributions;

5. shared cost programs in which the government is not the contracting authority;

6. any contract not funded by Parliament in which the government acts as an agent for other parties;

7. leases and contracts for the fit-up of an office or residential accommodation pursuant to the Federal Real Property Act and its Regulations; and

8. Interchange-Canada agreements.
   
   
• The most common reasons why suppliers take formal protest action include:
  
  
1. Suppliers who launch a formal bid protest have a genuine feeling of grievance, and believe they have a good case.

2. Many federal government contracts are vitally important, not only in terms of their monetary value, but also in terms of positioning the successful bidder as an industry leader for the foreseeable future. In many cases, Canadian government contracts are intended by a supplier to serve as a springboard for marketing services or products to other public and private sector customers in Canada and abroad. In addition, gaining a situation of incumbency through winning a competition confers a substantial advantage in future competitions.

3. Bidders spend a very substantial amount of money and time preparing a bid. They are not prepared to write off that large an investment if they believe they have been treated unfairly.

4. Bidders become extremely frustrated with government officials who are either not forthcoming with information, appear loath to admit error, or seem unresponsive and disinterested in the concerns that bidders raise.

5. In many cases a lack of transparency makes bidders suspicious that the government is hiding something. In many cases, officials appear reluctant to release even basic information about the evaluation to bidders because they fear the bidder will use the information to initiate a challenge. Many times, bidders are forced to resort to the Access to Information Act to obtain information about the evaluation and scoring of their own proposals. This attitude is ironic, because the lack of transparency heightens, rather than diminishes, the prospect of a challenge. If it is demonstrated to bidders that the process was carried out fairly, then they will usually accept the outcome.
   
   
• There are a number of common pitfalls for government suppliers:
  
  
1. In many cases, suppliers wait until being notified that they have not being awarded a contract before considering a complaint to the CITT that the solicitation was unfair (e.g., that the terms of the RFP were discriminatory, or biased, or that the bidding period was too short). At that point, it is usually too late to launch a protest about these types of issues, because the applicable time limits for making a complaint have expired. It is thus incumbent on suppliers to be very alert throughout the whole procurement process, and wary about sitting on their rights.
   
2. Some suppliers become involved in an ongoing debate with the government entity over alleged defects in the procurement process, trying to persuade the government of the merits of their position, and inadvertently run afoul of the time limits for filing a complaint with the CITT.

3. If a supplier decides to complain initially to the government entity rather than the CITT, then the complaint letter must include all the issues that the supplier wishes to raise. The CITT has held that the ten working day time limit will preclude that supplier from subsequently raising issues before the Tribunal that could have been included in the initial complaint to the entity, but were not (Re: A Complaint by Cougar Aviation Ltd., CITT File No. PR-98-040).