Procurement Ombudsman Regulations (SOR/2008-143)

Regulations are current to 2014-09-29 and last amended on 2008-05-05. Previous Versions

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.