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CROWN - Contracts with Crown - Formation

Wednesday, February 20, 2019 @ 7:59 AM  


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Application by the Crown for judicial review of a decision by the Canadian International Trade Tribunal. The respondent, Valcom, bid on a Department of National Defence (DND) Request for Proposals seeking the services of a senior technician for a three-year contract. DND determined that the respondent's bid was the only compliant bid and awarded it the contract. Following complaints from two other companies that had submitted lower bids, DND reconsidered. Ultimately, DND ordered the respondent to stop work and terminated its contract, citing the integrity of the competitive process. The contract was eventually awarded to another bidder. The respondent filed a complaint in respect of the procurement process. The Crown moved for an order ceasing the inquiry on the basis the complaint did not relate to the procurement process. The Tribunal concluded that it had authority to inquire into the respondent's complaint, and that the complaint was valid based on the DND breaching several articles of the applicable trade agreements relating to the procurement process. The Tribunal recommended compensation, cancellation of the new solicitation process, and awarding the contract to the respondent. The Crown appealed.

HELD: Application dismissed. The issue of whether the respondent's complaint related to the procurement process was a question of mixed fact and law with a significant factual component. The issue was within the Tribunal's core expertise and was therefore reviewable on a standard of reasonableness. The Tribunal did not err in taking jurisdiction to inquire into the respondent's complaint based on the finding that the procurement process continued once the DND engaged in reconsideration of the bids. This was not a complaint concerned with contract administration. The Tribunal's reasons and conclusion were reasonable. The Tribunal did not err in the recommended remedies. The Tribunal's remedies appropriately and reasonably addressed the harm arising from a defective procurement process.

Valcom Consulting Group Inc. v. Canada (Department of National Defence), [2019] F.C.J. No. 3, Federal Court of Appeal, W.W. Webb and R. Boivin JJ.A. and J.M. Woods A.C.J., January 2, 2019. Digest No. TLD-February182019004