Procedural fairness

When a government contracting decision goes sideways, procedural fairness is often what determines whether that decision survives legal challenge. It's the foundational principle requiring that all participants in a procurement process are treated equitably and given a genuine opportunity to be heard before decisions affecting their interests are finalized. For anyone working in federal procurement, understanding this concept isn't optional—it's what keeps your procurement defensible.

How It Works

Procedural fairness operates on two essential components: the duty to act fairly in how you conduct the procurement, and the duty to provide affected parties with an opportunity to respond to concerns before making final decisions. While the Supply Manual doesn't dedicate a specific chapter to procedural fairness per se, the principle runs through the entire framework. Chapter 3 on Methods of Supply and Chapter 4 on Competitive Contracting Process outline how PSPC must ensure competitive processes are conducted impartially.

In practice, this means several things. First, you must treat all compliant bidders consistently according to the terms established in your solicitation—what procurement lawyers call "Contract A." The Canadian Free Trade Agreement reinforces this in Article 515, requiring that tenders be "received, opened, and treated under procedures that guarantee the fairness and impartiality of the procurement process." Second, when you identify an issue with a bid—say, a missing certification or ambiguous pricing—you can't simply disqualify without considering whether clarification is appropriate under your stated evaluation rules.

Here's where it gets interesting: procedural fairness doesn't mean treating everyone identically in every situation. It means treating similar situations similarly and different situations appropriately. If one bidder submits a compliant proposal and another is missing mandatory requirements, different treatment is not only acceptable but required. The Treasury Board procurement policy emphasizes that processes must be "open, fair, and transparent" to achieve best value—but fairness doesn't override your evaluation criteria.

Key Considerations

• Document everything. Your evaluation records need to show that you followed your stated process consistently. If a bidder later alleges unfair treatment, your contemporaneous notes are your best defense.

• The debriefing matters more than you think. Providing unsuccessful bidders with meaningful feedback isn't just good practice—it's part of giving them a fair opportunity to understand your decision. Vague or defensive debriefings often trigger complaints to the Procurement Ombudsman.

• Contract A terms bind you, not just bidders. If your RFP says you'll evaluate in a certain way, you must follow that approach. Changing evaluation criteria mid-stream or applying unstated preferences violates procedural fairness even if you think it leads to a better outcome.

• Non-discrimination extends beyond Canadian suppliers. Trade agreements require that you treat suppliers from partner jurisdictions the same as domestic ones. Your fairness obligations operate within this international framework.

Related Terms

Contract A, Competitive Process, Debriefing, Evaluation Criteria

Sources

• PSPC Supply Manual - Chapters 3 & 4

• Canadian Free Trade Agreement - Chapter Five: Government Procurement

• Treasury Board of Canada Secretariat - Policy on Government Contracts

The bottom line? Procedural fairness isn't about being nice—it's about being defensible. Follow your stated process, document your decisions, and give affected parties a genuine hearing when their interests are at stake.