Procedural fairness

Procedural fairness in procurement means that a buyer applies its stated rules consistently, treats bidders equally and without discrimination, and makes decisions impartially on the basis of relevant information. It is a test of how a competition is run, not of who wins it.

The term is used in public administration and procurement law. In Canadian federal procurement, the Office of the Procurement Ombud treats fairness as a central principle. In NATO procurement, the same ideas appear as formal evaluation procedures, objectivity, non-discrimination, equal treatment and protection against unfair advantage.

How the Procurement Ombud describes fairness

The Office of the Procurement Ombud, in its 2023-2024 annual report, describes fairness as the consistent application of procedural rules and the equitable treatment of bidders. It adds that procurement decisions should be made by impartial actors and based on relevant information.

The Ombud's mandate covers federal procurement, so these principles are the yardstick for how federal departments and agencies run their competitions.

Practices the Ombud links to unfairness

The Ombud's report names specific practices that can signal favouritism or unfairness:

• Overly restrictive selection criteria that narrow the field without a real requirement behind them.
• Choosing a procurement method to benefit a particular supplier rather than to meet the need.
• Failing to follow the published evaluation methodology, so that bids are scored on something other than what the solicitation announced.

Each one breaks a core element of procedural fairness: the rules stated at the outset must be the rules actually applied.

How NATO procurement rules express the principle

NATO applies procedural fairness to common-funded procurement through its Procurement Policy for NATO Common Funding and its Procedure for NATO Competitive Procurement. Canadian suppliers who bid on NATO opportunities work within these documents.

• The procurement policy requires open and fair competitive bidding whenever possible, including non-discrimination and equal treatment of eligible vendors.
• The competitive procurement procedure requires procurement authorities to develop and follow formalized bid-evaluation procedures that ensure complete objectivity and non-discrimination. It also states that negotiations or refinements must not distort fair competition or give one bidder an unfair advantage over another.
• The NATO procurement manual says procurement staff must maintain fairness in NATO's treatment of suppliers and apply the same evaluation standards to all suppliers.

The NATO Communications and Information Agency states on its procurement process page that its process is structured to ensure fairness to industry and integrity of competitions, with different obligations for the agency and for industry across the procurement phases.

Challenge routes tied to fairness

Procedural fairness is backed by formal routes for raising concerns. The NCI Agency's terms and conditions page identifies a protest clause for Budget Committee-funded procurements above EFL Level D. Suppliers should read the clause that applies to a given solicitation before relying on it.

What procedural fairness means for a supplier

Fairness runs in both directions. Buyers must follow their own rules, and suppliers must follow the solicitation's procedures and evaluation requirements. In practice, a bid team should:

• Submit all the information the solicitation requests, in the form requested.
• Write the response to the stated evaluation criteria, since those are the criteria the buyer is bound to apply.
• Use the designated communication or challenge process. Some NATO solicitations, such as this request for proposal, restrict bidder communications to the contracting officer to preserve equal competitive footing.
• Measure any concern against the Ombud's examples: restrictive criteria, a method chosen to favour one supplier, or a departure from the published evaluation methodology.

A supplier that documents its compliance and raises concerns through the proper channel is in the strongest position if a competition is questioned.