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Ontario Finance - Bidding. A-1 Credit Recovery v. Ministry of Finance
In A-1 Credit Recovery v. Ministry of Finance (Div Court, 2023) the Divisional Court considered a JR against a decision by two Ontario Ministries to disqualify the applicant from an 'RFB' (request for bid) process.
These quotes illustrate some aspects of the RFB process:The Request for Bids
[5] On January 9, 2023, Supply Chain Ontario, a part of the Ministry of Public and Business Service Delivery (“MPBSD”) issued the RFB on behalf of the Ministry of Finance (“MOF”), seeking bidders to provide debt collection services regarding non-tax accounts receivable for the Province of Ontario. The RFB process had four stages:a. Evaluation of Qualification Response and Mandatory Requirements (the “Evaluation Stage”);
b. Technical Response (“Bidder Capabilities”);
c. Technical Response (“Collections”); and
d. Systems Integration Testing (“Testing”). [6] At the Evaluation Stage, the Ministries required bidders to demonstrate that they were currently registered under the Ontario Collection and Debt Settlement Services Act, R.S.O. 1990, c. C.14 (the “Act”) to carry on business as a collection agency in Ontario. Subsection 4(1) of the Act provides that “No person shall carry on the business of a collection agency unless the person is registered by the Registrar under this Act.” The question on the tender form was as follows:“Are you, or the collection agency you represent, currently registered under the Ontario Collection and Debt Settlement Services Act to carry on business as a collection agency in Ontario?” [7] If bidders could not demonstrate compliance with this requirement, they would be disqualified and their bid would not proceed through the remaining steps in the RFB process.
[8] The expiry of a registration and renewal process is addressed under the s. 13(1) of the Regulation under the Act:13(1) Every registration expires on the date shown on the certificate of registration unless an application for renewal of registration in a form approved by the Registrar, together with the fee established by the Minister, is filed with the Registrar prior to the date of expiry: General Regulation R.R.O. 1990, Reg. 74 under the Collection and Debt Settlement Services Act. A-1 Credit Recovery’s Bid and the Disqualification Decision
[9] A-1 is a collections agency that recovers debts on behalf of its clients. On February 8, 2023, A-1 submitted a bid in response to the Ministries’ RFB. A-1 was later informed that it was disqualified at the Evaluation Stage for failing to demonstrate that it was registered under the Act.
[10] In its bid, A-1 had stated that it was validly registered under the Act and submitted two documents that together purported to show that it was “currently registered”. The first document was a Business Registration Certificate which expired on February 6, 2023, three days before the bid submission deadline.
[11] The second document was an email exchange in December of 2022 between A-1 and another branch of MPBSD. The exchange included an email from A-1 explaining how the timing of its year-end meant that A-1 could not fulfill the renewal requirements by the expiry date shown on its certificate. The registrar responded to the email, granting A-1 an extension of time to March 30, 2023 to submit its financial statements, as required to renew its registration (the “Email Extension”). In its bid submission, A-1 representatives had typed at the top of the Email Extension, “Please see below email whereby Ontario Collection License has been extended to March 31, 2023 (due to timing of year-end and financial statements).”
[12] The wording of the Email Extension from the registrar referred only to an extension for A-1 to file its financial statements, and an invitation for A-1 to arrange to pay its fee. The Email Extension was silent as to whether the fee had been paid and the status of A-1’s certificate pending delivery of its financial statements.
A-1 Attends a Debriefing Meeting
[13] On May 30, 2023, MPBSD advised A-1 in writing that its bid was unsuccessful and named the four successful bidders to whom contracts had been awarded. The letter did not give reasons but advised that A-1 could request a debriefing meeting to receive feedback on its submission.
[14] As provided in the letter, and s. 1.5.4 of the RFB, A-1 requested a debriefing meeting. MPBSD provided A-1 with a “Debriefing Document” which stated that at the Evaluation Stage, A-1 had failed the mandatory requirement to show that it was registered under the Act because, “[T]he evidence provided showed that the license had expired with the Registrar.”
[15] On June 6, 20203, staff from the Ministries held a debriefing meeting with representatives from A-1. A-1 representatives recorded the meeting, which was held by videoconference, without giving notice to the other participants.
....
[36] A-1 also submits that the Ministries adopted a procedurally unfair process by arbitrarily revising the registration criteria and requiring that A-1 submit a valid certificate of registration. A-1 submits that this amounts to adopting a “non-existent” requirement about which A-1 did not have notice. In doing so, A-1 submits that the Ministries breached their duty of fairness in tendering for procurement contracts as recognized in Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services), 2000 CanLII 16572 (FCA) at para. 27.
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