Bidding Infrastructure Ontario Contracts: A Practical Guide

The Ontario Infrastructure and Lands Corporation (“Infrastructure Ontario” or “IO”) is a Crown agent responsible for procuring many of Ontario’s major infrastructure projects. Its procurement process is designed to promote transparency, fairness and accountability while ensuring public funds are spent responsibly.

Understanding the remedies available under IO’s procurement process, administrative review and the common law can help contractors identify potential issues early and respond appropriately if concerns arise during the procurement process.

Categories of Procurement Disputes

The remedies available to challenge an Infrastructure Ontario procurement decision depend on when the issue arose. Before a contract is awarded, disputes generally fall into one of three categories:

• Qualification disputes: Did IO properly evaluate your qualifications to participate in the procurement process?
• Policy disputes: Did IO reasonably interpret and apply its procurement policies, and was the decision-making process procedurally fair?
• Bid evaluation disputes: Did IO fairly evaluate your compliant bid against competing submissions?

Understanding which category applies is an important first step because different remedies become available at different stages of the procurement process.

What to Do If You Are Not Qualified

Infrastructure Ontario often begins the procurement process with a Request for Qualifications (“RFQ”) to identify qualified bidders for a future procurement opportunity. The evaluation criteria are published in advance, allowing bidders to understand how their submissions will be assessed.

Unsuccessful bidders may request a debrief. During the debrief, IO explains the submission’s strengths, areas for improvement and how it was evaluated. Although a debrief will not change the outcome, it can help determine whether there are grounds to challenge the decision or improve future submissions.

If concerns remain, bidders may formally challenge the procurement process. Under IO’s Procurement Policy, a vendor may submit a written complaint to IO’s General Counsel outlining the basis of the complaint and providing any supporting documentation.

What If Infrastructure Ontario Does Not Resolve Your Complaint?

If Infrastructure Ontario does not resolve a complaint, bidders may apply to the Divisional Court for judicial review.  The Court considers two questions: whether IO’s decision was reasonable and whether the decision-making process was procedurally fair.

Whether judicial review is available will depend on the circumstances. The law in this area continues to evolve, and courts have not always agreed on its availability in public procurement disputes. A court may also decline judicial review where it determines the decision is commercial rather than an exercise of statutory or public authority. Factors that may influence the analysis include:

• the size, significance and public importance of the project;
• the availability of contractual or tort remedies; and
• the extent to which the decision is governed by statute rather than ordinary commercial or contractual considerations.

Because strict timelines apply to judicial review (generally 30 days from the decision under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1) and other available remedies, contractors should seek legal advice promptly. Waiting too long may significantly limit the remedies available.

What to Do After You Submit a Bid

In a traditional fixed-price procurement, submitting a compliant bid in response to a Request for Proposals (“RFP”) creates certain legal rights and obligations. A bidder may have a claim where Infrastructure Ontario:

• accepted a substantially non-compliant bid;
• evaluated bids using undisclosed criteria; or
• failed to follow the express terms of its solicitation documents.

Infrastructure Ontario increasingly uses progressive procurement models for large, complex projects, so contractors should not assume that the same legal principles apply to every procurement. IO’s solicitation documents may also contain privilege clauses and limitations of liability that restrict the remedies available to unsuccessful bidders.

In limited circumstances, bidders may also have a claim for the tort of misfeasance in public office where a public official knowingly exercised public authority unlawfully, causing compensable harm to the bidder.

After the Contract Is Awarded

The remedies described above apply before a contract is awarded. Once a project agreement is signed, disputes are instead governed by the contract's own dispute resolution procedures, including its claims and notice requirements for delay, compensation and other project issues.

Ontario’s Construction Act also provides important statutory remedies during construction, including prompt payment and interim adjudication. These regimes generally apply to Infrastructure Ontario projects, subject to modifications for public-private (AFP) arrangements.

The Bottom Line

Infrastructure Ontario’s procurement process provides different remedies at different stages of the bidding process. Recognizing concerns early and understanding which options are available can make the difference between preserving and losing your ability to challenge a procurement decision.

Before participating in an Infrastructure Ontario procurement, bidders should carefully review IO’s Procurement Policy and the applicable tender documents to understand the process, their rights and the remedies available.

HOW WE CAN HELP

RAR Litigation advises owners, contractors, subcontractors and suppliers on procurement disputes, tendering issues and construction-related litigation.

Contact us for strategic advice, risk assessment and litigation representation.