Bid Protest

A bid protest is a supplier's formal challenge to a government procurement process or decision. Typical grounds include an alleged improper contract award, an unfair evaluation, or being denied the opportunity to compete. The term is used mainly in public-procurement and defence-acquisition systems in the United States and allied jurisdictions.

Canadian federal procurement does not generally use the phrase "bid protest". The equivalent official terms are bid challenge, procurement complaint and objection. A supplier reading a Canadian solicitation will find those words, and the mechanisms behind them, rather than the American label.

How Canada's bid challenge system works

The Canadian International Trade Tribunal (CITT) provides a forum where suppliers can raise issues about the conduct of certain federal procurements. Various trade agreements designate the CITT as Canada's bid-challenge authority. Its procurement inquiries guide describes a challenge as arising when a supplier believes a contract was, or is about to be, awarded improperly or illegally. A challenge can also arise when a supplier believes it was wrongfully denied a contract or an opportunity to compete.

Public Services and Procurement Canada explains that potential suppliers may challenge federal procurement decisions they believe were not made in accordance with the applicable trade-agreement requirements. Its supplier conduct guidance confirms that a formal CITT complaint can be filed where the procurement is covered by the relevant trade agreements.

What a procurement complaint can cover

A formal complaint to the CITT can concern unfair treatment at several points in a procurement:

• during the solicitation itself
• during the evaluation of bids, offers or arrangements
• at contract award

The CITT may review a procurement action up to and including contract award. Coverage depends on the procurement falling under the relevant trade agreements, so not every federal purchase can be taken to the Tribunal.

Deadlines and the first step in a federal challenge

Federal solicitations published on CanadaBuys state that several mechanisms are available to challenge the procurement process up to and including contract award. They direct suppliers to raise concerns with the contracting authority first. They also name the Office of the Procurement Ombudsman (OPO) and the CITT as possible complaint bodies. You can see this language in solicitations such as a Canadian Institutes of Health Research request for proposal and a second federal request for proposal. The same language appears in defence-related solicitations, including a Department of National Defence bid solicitation.

The solicitation clauses warn that complaint deadlines vary by complaint body and that suppliers must act quickly. The CITT's procurement complaint form generally allows 10 working days to file an objection with the government institution or a complaint with the Tribunal. The clock starts when the supplier became, or reasonably should have become, aware of the basis of the complaint. If the institution denies relief, the supplier generally has 10 working days from that denial to file with the CITT.

What a bid challenge means for a supplier

If you believe a federal procurement was run unfairly, read the challenge clause in the solicitation straight away. Note which complaint bodies it names and when each deadline begins. Raise the concern with the contracting authority first, and keep the 10 working day filing period in mind while you do. Confirm whether the procurement is covered by the relevant trade agreements, since that determines whether the CITT can hear a complaint.

Bid teams should record the date they learned of each issue, whether in a debrief, an amendment or an award notice. That date is what the filing period is measured from.