By: Lise Patry, LXM LAW LLP
Public procurement professionals know the heartbreak all too well: disqualifying a perfectly good bid over what often amounts to a bidder’s innocent oversight. A missing insurance certificate. An unverified bid bond. A checkbox left unticked.
As someone who has spent years in public procurement, I still remember the sting of rejecting a high-quality, competitive proposal—submitted by an incumbent supplier no less—simply because it didn’t include a proof of insurance document. Weeks of effort, pages of pricing and technical data, wiped away in a moment because of a missing attachment. For me it begged the question: how does this serve the public interest? Is rigid formal compliance really the hill we need to die on to protect procurement integrity?
Traditionally, the courts and tribunals have answered that question with a resounding “yes.” The sanctity of the RFP rules—especially those considered “mandatory”—has reigned supreme. Allowing any flexibility was seen as undermining fairness, transparency, and the level playing field. And so, we’ve left a trail of disqualified bids behind us.
But a recent decision from the Canadian International Trade Tribunal (CITT) may mark the beginning of a new era—one that makes space for fairness and practicality without sacrificing integrity.
The Case That Could Change Everything
In EBC Inc. v. Department of Public Works and Government Services (CITT File PR-2023-053), or PWGSC, the Tribunal considered a challenge from a bidder disqualified for submitting a bid bond that, while provided on time, was not in the verifiable format required by the RFP. Here’s the twist: PWGSC requested a corrected version after the bid deadline—under its Phased Bid Compliance Process (PBCP)—and EBC promptly complied.
Months later, however, PWGSC disqualified the bid, stating that the original bid bond was non-compliant and disregarding the corrected version it had asked for. EBC challenged the decision, arguing that once PWGSC invoked the PBCP and requested the corrected bid bond, it had a duty to consider it.
The Tribunal agreed with EBC. The CITT found that PWGSC’s failure to evaluate the corrected bond—after requesting it—was a violation of both the RFP terms and the applicable trade agreements, particularly the Canadian Free Trade Agreement (CFTA). Importantly, the Tribunal noted that there was no unfair advantage conferred to EBC and that the refusal to consider the updated bond ran contrary to the principles of fairness and competition.
What This Means for Procurement Professionals
The implications in my view are significant. This decision doesn’t throw mandatory requirements out the window, but it opens the door to a more nuanced and pragmatic approach. Where an RFP includes a structured bid repair mechanism like the PBCP, judicial decision-makers under a trade agreement analysis appear willing to uphold it.
That’s a big deal.
For years, procurement leaders have struggled with the tension between strict compliance and good value. Now, there’s legal precedent suggesting that if your RFP clearly allows for bid corrections under certain conditions—and you follow the process—you may be able to avoid rejecting bids that fail on a technicality.
A Word of Caution
It’s worth noting that this procurement used the Contract A / Contract B model, which typically invokes strict common law rules around bid compliance. The CITT’s support for bid repair came from a trade agreement compliance perspective. Whether the same approach would survive a pure common law challenge remains uncertain.
However, for organizations using non-binding RFP models, or those structuring solicitations with clear bid repair provisions (like the PBCP), this decision appears to be a green light. With the right language in your RFP, you can build flexibility into your process—without compromising legal defensibility.
Conclusion: A Win for Fairness and Value
The EBC decision signals a welcome shift—perhaps a rebalancing of integrity and practicality in public procurement. It reinforces the idea that fairness doesn’t always mean rigidity and that thoughtful flexibility, when properly documented and transparently applied, can still protect the public purse.
For procurement professionals, taxpayers, and suppliers alike, that’s good news.