Our first note on bid disputes, found here, focused on federal government contracts.   This second note examines the process involved in disputing contract awards made by the Ontario government.

The major difference between bid protests involving the Ontario government and those involving the Federal government is the absence of a specific tribunal to deal with these disputes at the provincial level.   As noted in Part 1, the CITT is the independent bid challenge authority established by the Federal government to hear complaints regarding procurement by Federal entities.   There is no similar provincial authority in Ontario.

The benefit of having no tribunal is that the strict time limits for lodging complaints at the federal level will not apply to disputes involving entities of the Ontario government.   However, the absence of a tribunal often results in confusion and uncertainty regarding how to proceed with a complaint and where to turn when something unfair has occurred in the bidding process.

So what should you do when faced with a situation where a bid protest is necessary?

The first thing to do is to review the bid materials.   It is common for a dispute procedure to be set out in the procurement materials, or in the Vendor of Record Agreement.   If this is the case, then that procedure is binding and should be followed.

If there is no dispute procedure, the next step is to send a formal written protest to the contracting officer, and then to the director responsible for the procurement. Often a properly worded letter demonstrating that you are serious about the complaint is sufficient to get the ball rolling towards a resolution of the issues or some form of compromise.   There is no set time limit for filing a written protest, but for practical reasons this should be done as soon as possible.   There is less of an opportunity to reach an acceptable outcome once the procuring entity has placed purchase orders and moved on to deal with other bids.  

If the complaint is not resolved through a formal letter, the option to turn to the courts for assistance is available.   However, prior to taking that step, and incurring the expenses involved with doing so, there are two options that should be taken advantage of in order to ensure that the complaint is valid.

The first of these options is the debriefing.   The provincial entity in charge of the procurement will, depending on the value of the contract involved, offer debriefings to bidders in order to discuss with them the reasons that their bids were not successful.   These meetings provide clarification as to whether or not there was unfairness in the procurement process, and offer the contracting authority an opportunity to provide an explanation for anything questionable that may have occurred during the process.

The second option relates to the Freedom of Information and Protection of Privacy Act.   This Act provides access to information regarding the successful bids and information relating to the procurement process.   This option is often underutilized, but can be an important and inexpensive means of gathering information regarding a potential complaint.   It can also serve as a guide to determining if it is worth it to push the complaint to the point of a legal action.  

If you have any thoughts about the above or any questions about bidding on contracts with the Ontario government, we’d love to hear from you.   You can reach the writer at  gary.graham@gowlings.com or you can visit our website at  www.gowlings.com/industry/md.asp.