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CONTRACTS WITH CROWN - Formation - Request for proposals

Friday, October 27, 2017 @ 8:28 AM  

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Application by the Crown for judicial review of a decision by the Canadian International Trade Tribunal (Tribunal) in favour of the respondent, Springcrest. The Department of Public Works and Government Services issued a Request for Proposals (RFP) to supply seawater pumps for the Royal Canadian Navy on an urgent basis. The RFP included a shock testing certificate requirement for non-manufacturers. The respondent, a non-manufacturer, filed a complaint with the Tribunal after the Crown refused to remove the requirement. The Tribunal accepted that the shock testing certificate was a legitimate and non-discriminatory operational requirement for securing delivery of the pumps without undue delay. However, the Tribunal ruled that it was impossible for certain non-manufacturer suppliers to meet the timeline of the requirement prior to the bid closing. The Tribunal recommended cancellation and re-issuance of the RFP to either remove the requirement, or allow suppliers of equivalent products sufficient time to provide the certificate. The Crown sought judicial review.

HELD: Application dismissed. The Tribunal's determination that the shock testing certificate requirement was non-compliant was reasonable given the impossibility of meeting the requirement's timeline for non-manufacturers. The fact that no discriminatory effect was intended was immaterial to the validity of the requirement. Regardless of any legitimate operational requirement, the fact remained that it was objectively impossible for suppliers of equivalent products to meet the timeline.

Canada (Attorney General) v. Springcrest Inc., [2017] F.C.J. No. 913, Federal Court of Appeal, D.G. Near, M.J.L. Gleason and J.M. Woods JJ.A., October 5, 2017. Digest No. TLD-October232017010