What is the bid protest mechanism?
Why is the bid protest mechanism being introduced?
Who can use the bid protest mechanism?
What government entities are subject to the bid protest mechanism?
What are the procurement value thresholds?
What are some of the exceptions?
What are some of the differences between the bid protest mechanism and the general dispute resolution mechanism)?
When and how is a complaint to be filed?
Is use of the bid protest mechanism mandatory?
What kind of complaints can be made?
What factors can be considered in evaluating a bid?
When and how is an arbiter chosen?
What are the potential outcomes of the arbiter’s decision?
Are bid protest mechanism awards legally binding?
What are the grounds for judicial review of an arbiter’s decision?
What happens is another supplier has a similar complaint at the same time over the same bid?  

What is the bid protest mechanism?

The bid protest mechanism is an administrative review process which provides suppliers in British Columbia, Alberta, Saskatchewan and Manitoba with a fast and simple way to resolve complaints that specific procurements by government entities were not conducted in compliance with the Agreement (i.e., in an open, transparent and non-discriminatory manner).

The bid protest mechanism process involves two stages. The first is formal consultations between the supplier and the procuring entity.  If the complaint is not resolved through consultations, the process moves to the second stage, in which an arbiter is selected to adjudicate the matter based on written submissions provided by the supplier and the procuring entity.

When will the bid protest mechanism be introduced?

The bid protest mechanism takes effect on July 1, 2015 so as to allow procuring entities and suppliers time to familiarize themselves with the process.

Who can use the bid protest mechanism?

The bid protest mechanism is accessible to Alberta, British Columbia, Saskatchewan or Manitoba suppliers that provide or could provide goods or services for a specific procurement covered by the NWPTA.

What government entities are subject to the bid protest mechanism?

British Columbia, Alberta and Saskatchewan:

  • departments, ministries, agencies, boards, councils, committees and commissions
  • Crown corporations, government-owned commercial enterprises and other entities that are owned or controlled by the NWPTA Parties
  • municipalities, school divisions, publicly-funded academic, health and social service entities as well as any corporation or entity owned or controlled by one of the preceding

Manitoba:

  • January 1, 2017 -- government entities, including departments, ministries, agencies, boards, councils, committees and commissions
  • January 1, 2019 -- Crown corporations, government owned commercial enterprises and other entities that are owned or controlled by the provincial government
  • January 1, 2019 -- municipalities, school divisions, publicly-funded academic, health and social service entities as well as any corporation or entity owned or controlled by one of the preceding

Until January 1, 2019, British Columbia, Alberta, and Saskatchewan suppliers will not be able to challenge procurements by those Manitoba entities noted above.  Manitoba suppliers will not be able to challenge procurements by those same entities in the other provinces until January 1, 2019.  

What are the procurement value thresholds?

  • Departments, ministries, agencies, boards, councils, committees, commissions and similar agencies:
    • $10,000 or greater for goods
    • $75,000 or greater for services
    • $100,000 or greater for construction
  • Crown corporations, government owned commercial enterprises, and other entities that are owned or controlled by the Parties:
    • $25,000 or greater for goods
    • $100,000 or greater for services
    • $100,000 or greater for construction
  • Regional, local, district or other forms of municipal government, school boards, publicly-funded academic, health and social service entities, as well as any corporation or entity owned or controlled by one or more of the preceding entities:
    • $75,000 or greater for goods
    • $75,000 or greater for services
    • $200,000 or greater for construction

What are some of the exceptions?

Procurement:

  • for or from Aboriginal peoples
  • from not-for-profit organizations or from persons with disabilities
  • in emergency situations
  • where it can be demonstrated only one business can meet requirements
  • of goods intended for resale to the public
  • of health services and social services

What are some differences between the bid protest mechanism and the general NWTPA dispute resolution mechanism?

  • Bid protest mechanism applies to specific procurements while the dispute resolution mechanism applies to all other complaints under the NWPTA.
  • Bid protest mechanism is much faster: about 75 days to reach decision versus at least six months for the dispute resolution mechanism
  • Bid protest mechanism uses written submissions only versus written and oral submissions in the dispute resolution mechanism
  • Bid protest mechanism uses a single arbiter versus a three person panel in the dispute resolution mechanism
  • Bid protest mechanism allows an arbiter to make a cost award to cover the cost of the arbitration (up to $50,000) as well as a recoupment award (up to $50,000) to help a successful complainant recoup the costs spent in preparing a bid for the specific procurement in question. 
  • The dispute resolution mechanism allows for cost awards as well as a monetary penalty of up to $5,000,000.

When and how is a complaint to be filed? 

If a supplier wishes to file a complaint, the supplier must do so within 10 calendar days after the day the supplier first knew (or reasonably should have known) that a procurement was inconsistent with a procuring entity’s obligations under the NWPTA. The complaint is initiated by sending a written request for consultations to the procuring entity responsible for the procurement in question with a copy to the NWPTA administrator. The request must include a summary of the supplier’s complaint. The government entity and the supplier then have 20 days following delivery of the supplier’s request in which to resolve the issue through consultations.

If the complaint is not resolved through consultations, the supplier has 14 days following the conclusion of the consultations to deliver a written request to the NWPTA administrator for the appointment of an arbiter to rule on the issue (see Article 37(4) of the NWPTA for more details on what must be included in an arbitration request).

Is use of the bid protest mechanism mandatory?

No. A supplier may use either the dispute mechanism available under the Agreement on Internal Trade (AIT) or that available under the NWPTA, but cannot use both. If the dispute is related to a specific procurement and brought forward under the NWPTA, then the bid protest mechanism is used.

Suppliers may also choose processes outside either agreement, such as litigation or a generally available government complaint process.

What kind of complaints can be made?

A supplier should use the bid protest mechanism if it believes a particular procurement was not conducted according to the NWPTA procurement rules.

If the complaint relates to the overall, systemic practices of a procuring entity, and not to a specific procurement, then the regular dispute resolution mechanism must be used. 

For more information on trade agreement procurement obligations, please see the Guidelines to the Procurement Obligations of Domestic and International Trade Agreements This document was jointly created by the Governments of Alberta, British Columbia, and Saskatchewan to assist their procuring entities in understanding their procurement-related obligations under the trade agreements to which they are a party. 

When and how is an arbiter chosen?

If the disputing parties cannot reach an agreement following the 20 day consultation period, the supplier may request arbitration by submitting a request to the administrator along with a list of five preferred arbiters chosen from the list of arbiters established by the NWPTA Parties. The procuring entity then chooses one of the five candidates selected by the supplier.

What are the potential outcomes of the arbiter’s decision?

The arbiter may report on findings of fact, make a determination as to whether the procurement was consistent with the Agreement, or make recommendations as to how a procuring entity can bring itself in compliance with the Agreement.

The arbiter may also issue cost awards not exceeding $50,000 for fees, expenses, and the cost of legal representation for the bid protest and a recoupment award of up to $50,000 for demonstrable and reasonable costs incurred by the supplier in preparing a response to a procurement opportunity.

The costs are usually levied against the unsuccessful disputant. The arbiter may apportion costs where reasonable.

Are bid protest mechanism awards legally binding?

The arbiters’ decision is binding on the parties and enforceable in the same manner as an order issued by a superior court of the NWPTA Parties.

What are the grounds for judicial review of an arbiter’s decision?

Within 15 days of the release of the arbiter’s final report, a disputant may go to the courts and request a judicial review of the arbiter’s report.

The judicial review may examine procedural fairness, whether the arbiter exceeded its jurisdiction or failed to exercise it, or evidence of fraud.

Any cost or recoupment award is suspended during a judicial review.

What happens if another supplier has a similar complaint at the same time over the same bid?

If additional complaints are filed on the same dispute prior to the arbiter’s final report, they are consolidated into one proceeding.

The arbiter will notify the disputants and request additional submissions.


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