Procurement Ombudsman Regulations (SOR/2008-143)

Regulations are current to 2016-08-01 and last amended on 2008-05-05. Previous Versions

Procedures

  •  (1) Subject to subsection (2), the Procurement Ombudsman shall review complaints under a simple process and allow the contracting department 15 working days after the receipt of the notice referred to in section 8 to provide its comments on the complaint.

  • (2) The Procurement Ombudsman shall review a complaint under an expanded process on the request of the complainant or the contracting department, or if the Procurement Ombudsman determines that the circumstances warrant an expanded process, taking into consideration any relevant factors, including the following:

    • (a) the nature of the complaint;

    • (b) the value of the contract;

    • (c) the complexity of the bid requirements or the procurement process; and

    • (d) the potential impact that the findings and any recommendations could have on the government’s operations or resources.

  • (3) The Procurement Ombudsman shall without delay notify the complainant and the contracting department that a complaint is to be reviewed under an expanded process.

  • (4) Under an expanded process, the Procurement Ombudsman shall

    • (a) provide the contracting department with a period of at least 25 working days after the receipt of the notice referred to in subsection (3) to provide comments with respect to the complaint and may, on the request of that department, allow it to provide its comments after that period, having regard to the complexity of the bid requirements or the procurement process;

    • (b) provide the complainant with a copy of the department’s comments and an opportunity to respond within 10 working days after the receipt of the copy and may, on the request of the complainant, allow it to provide its response after that period, having regard to the complexity of the bid requirements or the procurement process; and

    • (c) provide the department with a copy of the complainant’s response and an opportunity to respond within 10 working days after the receipt of the copy if the complainant raises new arguments or evidence in its response and may, on the request of the department, allow the department to provide its response after that period, having regard to the complexity of the bid requirements or the procurement process.

Findings

  •  (1) For the purpose of his or her review, the Procurement Ombudsman shall take into consideration any relevant factors, including the following:

    • (a) whether the complainant would have had a reasonable prospect of being awarded the contract, but for the actions of the contracting department;

    • (b) the seriousness of any deficiency in complying with the regulations made under the Financial Administration Act;

    • (c) the failure or refusal of the complainant to provide information about its goods and services at the request of the contracting department;

    • (d) the degree to which the complainant was prejudiced;

    • (e) the degree to which the fairness, openness or transparency of the procurement process was prejudiced; and

    • (f) whether any of the parties acted in bad faith.

  • (2) The Procurement Ombudsman shall not substitute his or her opinion for the judgment of the persons involved in the acquisition process for the contract in relation to the assessment of any bid, unless there is insufficient written evidence to support that assessment or the assessment is unreasonable.

Recommendations

Compensation

  •  (1) Subject to subsection (2), the Procurement Ombudsman may recommend payment of

    • (a) compensation in respect of the profit that the complainant would have realized if, but for the actions of the contracting department, it had been awarded the contract, which compensation may not exceed the lesser of

      • (i) the net profit that the complainant would have realized, had it been awarded the contract, at the lower of the amount that it bid, if any, and the amount at which the contract was awarded, without including the value of any options or any extensions of the contract, less the cost of submitting the bid, if any; and

      • (ii) 10% of the value of the contract awarded without including the value of any options or any extensions of the contract, less the cost of submitting the bid, if any; or

    • (b) compensation equal to the costs of submitting the bid but that compensation may not exceed 10% of the value of the contract awarded, without including the value of any options or any extensions of the contract.

  • (2) If a competitive process was held, the complainant must have submitted a bid in respect of the contract to which the complaint relates, unless it was prevented from doing so because of the actions of the contracting department.

Findings and Recommendations

 The Procurement Ombudsman shall provide his or her findings or any recommendations under subsection 22.2(3) of the Act within 120 working days after the day on which the complaint is filed.

Review of a Complaint Under Paragraph 22.1(3)(c) of the Act

Filing of a Complaint Under Paragraph 22.1(3)(c) of the Act

 A person may file a complaint under paragraph 22.1(3)(c) of the Act only if, in addition to meeting the requirement set out in subsection 22.2(1) of the Act, the person has been awarded the contract to which the complaint relates.

  •  (1) A complaint under paragraph 22.1(3)(c) of the Act shall be filed in writing with the Procurement Ombudsman within 30 working days after the day on which the complainant became aware, or reasonably should have become aware, of the grounds on which the complaint is based.

  • (2) If, for reasons beyond the control of the complainant, the complainant is not able to file a complaint with the Procurement Ombudsman within the period set out in subsection (1), the Procurement Ombudsman may, at the request of the complainant, extend that period to a maximum of 90 working days.

  • (3) If a complainant has previously contacted the contracting department to object to the administration of a contract within the period set out in subsection (1), a complaint under that subsection shall be filed in writing with the Procurement Ombudsman within 30 working days after day on which the contracting department denied the objection.

  • (4) The complaint is filed when the following information and documents are submitted to the Procurement Ombudsman:

    • (a) the name and address of the complainant;

    • (b) information identifying the contract to which the complaint relates and, on the request of the Procurement Ombudsman, a copy of that contract;

    • (c) the name of the contracting department and, if applicable, the department for which the materiel or services are intended under the contract to which the complaint relates;

    • (d) information and documents establishing that the complainant meets the requirements set out in subsection 22.2(1) of the Act and in section 15; and

    • (e) a statement of the complaint, setting out the facts and grounds on which the complaint is based.

Review

 The Procurement Ombudsman shall determine whether to review a complaint referred to in subsection 16(1) within 10 working days after the filing of the complaint, and shall, without delay, notify the complainant and the contracting department of his or her decision, and provide that department with a copy of the complaint.

  •  (1) The Procurement Ombudsman shall review a complaint referred to in subsection 16(1), if the requirements set out in subsection 22.2(1) of the Act and in sections 15 and 16 have been met and the interpretation and application of the terms and conditions or the scope of the work of the contract are not in dispute between the parties.

  • (2) If the Procurement Ombudsman reviews the complaint under subsection (1), he or she may request that the complainant or the contracting department provide any document or information necessary for the review.

 The Procurement Ombudsman shall end the review and notify the complainant and the contracting department of that fact and the reasons for it, if

  • (a) the complainant withdraws the complaint;

  • (b) one or more of the requirements set out in subsection 22.2(1) of the Act, section 15 or 16 have not been met; or

  • (c) the Procurement Ombudsman determines that the complaint is frivolous or vexatious.

Findings and Recommendations

 For the purpose of the review, the Procurement Ombudsman shall take into consideration any relevant factors, including the following:

  • (a) whether the administration of the relevant contract was conducted in a reasonable manner in the circumstances; and

  • (b) whether any of the parties acted in bad faith.

 The Procurement Ombudsman may not make recommendations

  • (a) altering the terms and conditions of a contract; or

  • (b) providing a remedy other than as specified in the contract.

 The Procurement Ombudsman shall provide, in accordance with subsection 22.2(3) of the Act, his or her findings and any recommendations within 120 working days after the day on which the complaint is filed.

 
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