Information Note On Recourse Mechanisms For Contracting In Support Of International Development Assistance

August 2018

This Information Note on Recourse Mechanisms for Contracting in Support of International Development Assistance, effective August 2018, is intended primarily for the use of BiddersFootnote 1 involved in a competitive solicitation process and ConsultantsFootnote 2 under a contract with the Department of Foreign Affairs, Trade and Development.

Some information in this document is reproduced from or adapted from information provided by other entities such as the Canadian International Trade Tribunal, the Federal Court of Appeal, and the Office of the Procurement Ombudsman.

1. Purpose

Global Affairs Canada (“the Department”) has developed a Quality Control (QC) Processes for Request for Proposals (RFP) and robust proposal evaluation protocols to ensure the integrity of any procurement process. Nonetheless, the Department has internal recourse mechanisms that:

  • allow Bidders to make a complaint regarding the conduct of a procurement process or to express their disagreement towards a process, should debriefings and informal discussions not provide sufficient reassurances to address a Bidder’s issues and concerns; and
  • allow Consultants under contract with the Department to raise issues post contract award.

The purpose of this information note is to provide information to Bidders or Consultants who wish to submit a complaint through official recourse mechanisms. This information note also provides an overview of the roles and responsibilities of the individuals involved in each mechanism:

  • The Department’s Internal Review Mechanism (Level 1 and Level 2)
  • The Canadian International Trade Tribunal (CITT)
  • Office of the Procurement Ombudsman (OPO)
  • Federal Court of Appeal

Often, issues or complaints can be resolved through discussions between the parties involved in the procurement process or the management of a contract. These discussions can provide more information to the Bidder or Consultant and address most of their questions and concerns.  Every reasonable effort should be made to settle amicably all disputes or claims. Nonetheless, in the event that a resolution cannot be reached, recourse mechanisms are available as further described in the Information Note.

2. Recourse Mechanisms

Bidding Process Recourse Mechanisms

2.1 Internal Review Mechanism

The Department has established an Internal Review Mechanism (IRM) consisting of two levels. The IRM involves senior departmental management in the resolution of bid protests, particularly but not limited to times when the impartiality of the procurement process is in question.

The Department’s IRM is a post-debriefing process with two distinct levels that is available to Bidders to use as a first step before going through external challenge processes (Canadian International Trade Tribunal (CITT) or Office of the Procurement Ombudsman (OPO)). Upon submitting their complaint for review, Bidders should use Internal Review Mechanism Enquiry Form (.pdf). Should a Bidder decide to directly contact the CITT and forego the IRM, the IRM is no longer an option. However, should the complaint be filed to the OPO, there is a high likelihood that OPO will redirect the Bidder to the department’s internal process. During the review process, complainants are asked to limit their interactions with departmental personnel.

A. LEVEL 1 – Operations Review

If dissatisfied with a particular procurement process and previous discussions with the Department, a Bidder may make a written request for a review to the Director General (DG) or Assistant Deputy Minister (ADM) of the Branch responsible for the RFP. PTL/Lead OfficerFootnote 3 and Contracting Officers (CO) are jointly responsible for compiling all information relevant to the Bidder’s request, completing an analysis of the case at hand and drafting a response. The DG or ADM of the Branch responsible for the RFP will respond to the Bidder’s request once a review and analysis has been completed.

B. LEVEL 2 – Independent Corporate Review

If unsatisfied with the response resulting from the Level 1 review, the Bidder may make a written request to the Deputy Minister (DM) of International Development who will, with the support of the Chief Financial Officer (CFO) through the Director General, Grants and Contributions Management Bureau (DG-SGD) review the procurement process. This IRM should be followed prior to a Bidder taking any action with the Canadian International Trade Tribunal (CITT); however, it does not prevent the Bidder from taking such an action. The DM will respond to the Bidder’s request once a complete review and analysis has been completed.

Level 2 is an independent corporate review and analysis of a Bidder’s request, led by individuals who were not directly involved in the procurement process.

In the event that a Bidder is not satisfied with the Department’s final decision resulting from the IRM, they may file a formal complaint with the CITT, the Office of the Procurement Ombudsman (OPO) or traditional tribunals, as applicable, who will review the procurement process and render their decision or determination.

2.2 Canadian International Trade Tribunal (CITT)Footnote 4

a) Jurisdiction and Mandate

The CITT provides Canadian and international businesses with access to fair, transparent and timely processes for the investigation of trade remedy cases and complaints concerning federal government procurement covered by any applicable trade agreement. A potential supplier may file a complaint concerning a procurement action to the CITT, on grounds that any aspect of the procurement process relating to a requirement covered by a trade agreement is unfair or discriminatory.

The CITT’s mandate authorizes it to receive complaints pertaining to any aspect of the procurement process up to and including contract award, to conduct inquiries and to make determinations. In dealing with a complaint, the Tribunal must determine whether the government institution responsible for the procurement under review has complied with the requirements of the trade agreements and such other procedural requirements as prescribed in the CITT Procurement Inquiry Regulations (the “Regulations”).

b) Basis of Complaint

The Tribunal considers complaints against solicitations and awards or proposed awards on a designated contract. Under the Regulations, the designated contracts are those described in the procurement chapters of the trade agreements. A complaint may relate to any aspect of the procurement process and concern one or more of the procedural requirements contained in the procurement chapters of the trade agreements.

c) Time Limits

Although CITT processes allow for exceptions to its time limits (express option or extended option for the tribunal inquiry process), the filing of a complaint typically follows the following time limits:

  1. Filing of complaint with the Tribunal by supplier/Bidder:  no later than ten (10) working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier/Bidder.
  2. Filing of complaint with the Tribunal if a potential supplier has made an objection to the relevant government institution: within ten (10) working days after the day on which it has actual or constructive knowledge of the denial of relief by that government institution, provided that the objection was made to the government institution within the ten (10) working day period mentioned before.
  3. CITT determines whether to conduct an inquiry or not: within five (5) working days of filing of complaint.
  4. If CITT determines that no inquiry will be done pursuant to a complaint: notifies complainant with reasons for decision within fifteen (15) days of decision to not pursue.
  5. Government Institution (Department) response to complaint: within twenty-five (25) days of receiving a copy of a complaint accepted for inquiry, the Department files a Government Institution Report (GIR) with the Tribunal through an assigned Justice Canada resource, including a statement which fully responds to all the issues forming the basis of the complaint.
  6. Complainant response to GIR received: within seven (7) days of being sent the GIR.
  7. Tribunal issues its determination and recommendations: within ninety (90) days of the filing of the complaint.

The Tribunal usually decides the case on the basis of written submissions. However, if the information is insufficient or disputed, the Tribunal may, on its own initiative or at the request of a party, schedule a public hearing at which the parties and counsel appear before the Tribunal. A hearing involves more formal procedures. Witnesses may be called upon to testify under oath or by affirmation, and a transcript of the proceedings is made. A hearing may be held for various reasons, including the need to resolve a specific factual dispute that is essential to the resolution of the complaint and that cannot be otherwise resolved on the written record. A hearing should be requested as early as possible during the review process.Footnote 5

2.3 Office of the Procurement Ombudsman (OPO)

In cases where the CITT mandate does not apply, the OPO may review any complaint with respect to the award of a contract for the acquisition of goods below the value of $25,000 and for services below the value of $100,000. While the OPO cannot review complaints that fall within the CITT mandate or that are the subject of a proceeding in court, it can be informed of matters that could identify some systemic issues and form part of the OPO plans to review the procurement practices of a department. In any case, prior to making a complaint, Bidders are encouraged to try to resolve the issue with the relevant government organization. The OPO also has jurisdiction to review complaints concerning the administration of a contract regardless of its value and to provide suppliers and government departments with Alternative Dispute Resolution (ADR) services for contractual disputes regarding the interpretation or application of a contract’s terms and conditions. Those two mandates will be detailed further in the Contract Award section of this Information Note.

a) Objective and Functions

The OPO is an independent organization with a government-wide mandate. OPO’s overall objective is to strengthen the fairness, openness, and transparency of federal procurement.

The Procurement Ombudsman has four primary functionsFootnote 6:

  1. Review the practices of departments for acquiring materiel and services to assess their fairness, openness and transparency and make any appropriate recommendations to the relevant department and for the improvement of those practices;
  2. Review any complaint respecting the award of a contract for the acquisition of goods below the value of $25,000 and services below the value of $100,000;
  3. Review any complaint respecting the administration of a contract for the acquisition of materiel or services by a department, regardless of dollar value;
  4. Ensure that an alternate dispute resolution process is provided, if both parties agree to participate;

The OPO’s business model encourages suppliers and departments to discuss issues in an open and straightforward manner. A major role of the OPO is to guide suppliers and departments through issues based on an understanding of their respective requirements and concerns in an aim to facilitate effective resolution of issues in a quick and cost-effective manner.

The OPO’s investigation into complaints involves the review of documents submitted by the complainant and the Department and do not include interviews or witness statements. A determination on the complaint is rendered strictly on the basis of the information submitted to the office.

The OPO does not have the authority to cancel or modify contracts, impose sanctions, penalties or remedies, but can recommend a department compensate a supplier for complaints regarding the award of a contract.

b) Time Limits
  1. Filing of complaint with OPO by Bidder: thirty (30) working days after public notice of the award of the contract or after the day on which the bidder becomes aware, or should have become aware of the award of the contract.
  2. Filing of complaint with OPO by Bidder, if Department was previously contacted: thirty (30) working days after the day on which the Department denied the objection.
  3. OPO determines whether to review a complaint: within ten (10) working days after the filing of the complaint and shall notify the complainant and the Department of its decision and provide the Department a copy of the complaint.
  4. Government department responds to complaint: within fifteen (15) working days after receipt of the OPO notice.
  5. OPO issues its findings or recommendations: within one hundred and twenty (120) working days after the day on which the complaint was filed.

Generally, the OPO tries to help resolve issues informally and amicably before they are escalated. To that effect, when an issue about the award of a contract is brought to the OPO’s attention, standard procedure is to contact the person identified in the Department’s solicitation document. When the informal approach isn’t successful, the Deputy Minister of International Development is contacted by the OPO in order to address in a more formal manner such cases as providing copy of written supplier complaints or informing the Department of the launch of a complaint review.

2.4 Federal Court of AppealFootnote 7

As a last resort to address Bidder complaints, determinations made by the CITT are subject to judicial review by the Federal Court of Appeal.

a) Jurisdiction and Mandate

The basic role of the Federal Court of Appeal is to ensure that federal law is interpreted and applied consistently throughout Canada  by the federal government and its agents, to supervise the legality of the decisions of federal decision makers, and to provide a national appellate or review forum over the Federal Court, the Tax Court of Canada and federal boards, commissions, tribunals and administrative decision makers..

A central part of the jurisdiction of the Federal Court of Appeal involves judicial review of the decisions of federal boards, commissions, tribunals (including the CITT), and administrative decision makers, including ministers of the federal government.

Applications for review by the Federal Court of Appeal must be based on the grounds that the board, commission or tribunal:

  1. Acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
  2. Failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
  3. Erred in law in making a decision or an order, whether or not the error appears on the face of the record;
  4. Based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
  5. Acted, or failed to act, by reason of fraud or perjured evidence; or
  6. Acted in any other way that was contrary to law.Footnote 8
b) Time Limits
  1. Notice of Application (application for judicial review): Applicant must file with the Federal Court of Appeals within thirty (30) days after the decision/order that is being challenged is first communicated to applicant.
  2. Service of notice of application: Applicant must serve the Notice of Application to the respondents whose decision is being challenged within ten (10) days after issuance of Notice. This includes respondents, the tribunal involved, any other person who participated before the tribunal and the Attorney General of Canada.
  3. Proof of service: Applicant must file with Court Registry a proof of service within 10 days after the Notice of Application was served.
  4. Notice of Appearance: Respondents who intend to oppose an application must serve and file a Notice of Appearance within ten (10) days following service of notice of application.
  5. Applicant’s affidavits: Served within thirty (30) days after issuance of Notice of Application (Affidavits introduces evidence).
  6. Respondent’s affidavits: Served within thirty (30) days after service of Applicant’s affidavits.
  7. Cross-examination: Completed by all parties within twenty (20) days after filing of Respondent’s affidavits (or expiration of the time for doing so).
  8. Applicant’s record: Served and filed within twenty (20) days after the completion of all parties’ cross-examinations.
  9. Respondent’s record: Served and filed within twenty (20) days after the service of the applicant’s record.
  10. Requisition for hearing: Applicant must serve and file a requisition for a hearing date within ten (10) days of service of the respondent’s record or the expiration of the time for doing so.

The Court will set the date; time and place for the hearing of the judicial review application, and the appropriate Registry will communicate this information to all parties.

Contract Recourse Mechanisms

2.5 Internal Dispute Resolution

Following contract award, and in an effort to settle amicably all disputes and claims, the Internal Review Mechanism (IRM) is available to facilitate dispute resolution.  This dispute resolution process is integrated into the terms of the international development assistance contracts.

a) Objective and Timelines

The contractual clause entitled “Alternate dispute resolution” ensures that upon signing of the contract, both parties agree to make every reasonable effort, in good faith, to settle amicably all disputes or claims relating to the Contract, through negotiations between the parties’ representatives authorized to settle. Nonetheless, should an agreement not be reached, a post-contract award internal dispute resolutions mechanism has been established which consists of two Levels following the description detailed under paragraph 2.1. Therefore, as a first Level, Consultants can implicate the DG or ADM of the Program Branch responsible for the contract to pursue discussions to reach a settlement. If no settlement is reached, Consultants can then move on to Level II of the process by submitting their complaint to the DM of International Development who will undertake an independent corporate review.

In the event that no settlement is reached through this process, each party consents to fully participate in, and bear the cost of any dispute resolution process proposed by the OPO, as detailed in paragraph 2.6 below and as described in contract provisions.

2.6 Office of the Procurement Ombudsman (OPO)

a) Objective and Functions

The OPO provides alternative dispute resolution services for disputes relating to the interpretation or application of the terms and conditions of a contract. The Alternate Dispute Resolution (ADR) is a confidential and voluntary process involving a third party to assist the parties to a contract in resolving issues.

The OPO holds the role of reviewing complaints regarding contract administration, regardless of the value of the contract. Under this role, the OPO may not make recommendations that a) alter the terms and conditions of a contract or b) provide remedy other than as specified in the contract.

b) Time Limits

i. Alternate Dispute Resolution (ADR)

Following a request made by a party to a contract:

  1. OPO communicates with the other party to ask for their agreement to participate: within ten (10) working days after the initial request is made.
  2. Other party responds to OPO with their intention to accept or not to participate: within ten (10) working days of the initial OPO communication.
  3. Launching of ADR process or Cancellation of initial request, as applicable: within ten (10) working days after receiving last of other parties’ response. If all agree to participate and bear cost, if any, the OPO submits a proposal for ADR. If no agreement is received, the OPO notifies the requesting party that their request cannot be granted.

ii. Contract administration

  1. Filing of complaint with OPO by Consultant: within thirty (30) working days following the day on which the complainant became aware or reasonably should have become aware of the basis of the complaint.
  2. Filing of complaint with OPO by Consultant, if Department was previously contacted: within thirty (30) working days after the day on which the Department denied the objection made by the Consultant.
  3. OPO determines whether to review the complaint: within ten (10) working days after the filing of the complaint and shall notify the complainant of its decision and provide the Department with a copy of the complaint.
  4. OPO issues its findings and any recommendations: within 120 working days after the day on which the complaint is filed.

3. Conclusion

The obligation to use a fair, transparent and open procurement process is set out in the Treasury Board Contracting Policy, the trade agreements and the prevailing legal framework. Departments must ensure that adequate management controls are in place to protect the integrity of the procurement process. Internally, the Department has established many measures to ensure the integrity of the procurement process, such as the Evaluation Review Board (ERB) and independent quality control as well as to ensure proper management of contracts. In addition, the Department has also put in place bidding process and contract recourse mechanisms with the view of developing and maintaining positive relationships with suppliers, and to ensure that concerns are heard and dealt with in an efficient and effective manner.

Recourse Mechanisms Mapping

Bidding Process Recourse Mechanisms

The above graphic maps the escalation of recourse mechanisms for the bidding process from the first steps available up to the involvement of the Federal Court system. As a first step, individuals resorting to bidding process recourse mechanisms must rely on internal review mechanisms which consist of two levels. As a first step, Level 1 involves a written request to the DG or ADM of the Branch responsible for the RFP to review the procurement process. If the results of Level I are unsatisfactory, Level II involves a written request to the DM to review the procurement process. Following Level II, an enquiry may then escalate if required. For requirements subject to trade agreements, the Canadian International Trade Tribunal (CITT) may investigate. For requirements for services under $100,000, the Office of the Procurement Ombudsman (OPO) applies. Any further escalation would then go to the Federal Court of Appeal.

Contract Recourse Mechanisms

The above graphic maps the escalation of recourse mechanisms when a contract has been issued from the first steps available up to the involvement of courts of competent jurisdiction. As a first step, individuals resorting to contract recourse mechanisms must rely on an internal dispute resolution process which consists of two levels. As a first step, Level 1 involves a written request to the DG or ADM of the Program to review the complaint. If the results of Level I are unsatisfactory, Level II involves a written request to the DM to review the complaint. Following Level II, a complaint may then escalate as required to the Office of the Procurement Ombudsman (OPO). The OPO can be involved for matters relating to dispute resolutions, through the Alternative Dispute Resolution (ADR) process or to the administration of the contract. Any further escalation would then go to a Court of competent jurisdiction.

Footnotes

Footnote 1

For competitive services contracts, the term “Bidder” is used up until contract award.

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Footnote 2

“Consultant” means the person or entity or, in the case of a consortium or joint venture, the Members whose name(s) appears on the signature page of any Contract (including call-ups and requisitions) and who is responsible to provide the Services to the Department under the Contract.

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Footnote 3

“PTL/Lead Officer” denotes the individual principally responsible for leading an initiative, without reference to the individual’s functional grade or position. In the Development Portfolio, the actual position held by the Project Team Leader/Lead Officer may include (but not be limited to) Project Manager, Program Officer, Call Manager/Officer, Development Officer or Senior Officer.

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Footnote 4

CITT Procurement Review Process : A Descriptive Guide, www.citt.gc.ca/en/Procurement_Review_Process_e

Supply Manual, section 1.35.1 “Canadian International Trade Tribunal”

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Footnote 5

CITT, « Procurement Review Process : A Descriptive Guide », http://www.citt.gc.ca/en/Procurement_Review_Process_e

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Footnote 6

A possible fifth function is that the Federal Accountability Act also specified that the Procurement Ombudsman can also perform any other duty or function respecting the practices of departments for acquiring materiel and services that may be assigned to the Procurement Ombudsman by order of the Governor in Council or the Minister of Public Works and Government Services Canada.

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Footnote 7

http://cas-cdc-www02.cas-satj.gc.ca/portal/page/portal/fca-caf_eng/role_eng

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Footnote 8

“Judicial Review in the Federal Court and the Federal Court of Appeal”, May 2007

http://cas-cdc-www02.cas-satj.gc.ca/fct-cf/pdf/judicial_review_e.pdf

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