23.1 Purpose
The purpose of the supplier complaint and review process is to provide suppliers with an effective, consistent and timely review mechanism where a supplier has an opportunity to register a complaint with a public body, respecting a procurement process in which the supplier participated and after they have received a supplier debriefing, where they feel they have been aggrieved. The intent of this process is to assist public bodies in identifying and responding to potential problem areas in the application of public procurement policy, procedures and legislation.
The supplier complaint and review process is applicable to all public bodies as defined in the Act for the acquisition of all commodities under an open call for bids. It is limited to the application of legislation, established procurement policies, procedures in the solicitation of bids and proposals, evaluation of responses and contract award stages of the procurement process. A supplier complaint is to be registered in writing with the head of the public body responsible for the procurement within 15 business days of the supplier debriefing in accordance with Section 25 of the Regulations.
The supplier complaint and review process is intended to provide an opportunity for suppliers to voice complaints and to assist public bodies in identifying any gaps or shortcomings in procurement policy or practices. The process is intended to help resolve issues that involve no significant factual or interpretive disagreement between the parties. Fundamental disputes over facts or legal rights and obligations are not intended to be addressed by this process and should be adjudicated by other means.
The complaint process will under no circumstances result in any contract award being set aside by the public body or the Public Procurement Agency. Additionally, no compensation will be awarded to any complainant as a result of this process.
The complaint process set out in this protocol shall not be used to challenge a procurement process in respect of which the supplier has commenced legal proceedings against a public body.
Filing a complaint does not affect the supplier’s ability to participate in an ongoing or future procurement.
23.2 Objectives
Supplier complaints and protests originate for any number of reasons, real or perceived; however, all of these reasons have a potential to negatively reflect on the integrity of the procurement process. Common complaints include:
- rejection of bid submission;
- inconsistent application of procurement procedures;
- contravention of an applicable trade agreement; or,
- contravention of the framework.
The objectives of a supplier complaint and review process to effectively address these instances are:
- To define a process that is accessible, fair and transparent;
- To ensure consistency, impartiality and timeliness of process;
- To identify improvements to the procurement process; and
- To ensure accountability in the procurement process.
23.3 Policy/Procedure
1. Complaint Submission
Suppliers shall submit their complaints in writing to the head of the public body responsible for the procurement. A complaint is to be registered with the head of the public body within 15 business days of the supplier debriefing. A Supplier Complaint Review Process Form template may be viewed at www.gpa.gov.nl.ca. A supplier complaint may also be forwarded to the head of the public body in a format other than this template provided all required information has been included in the complaint.
In the case of a group procurement, suppliers shall issue their complaint with the public body responsible for administering the procurement and all issues will be dealt with through that body. That public body may involve any other public body involved in the group procurement in the process, however all correspondence shall be through the procurement administrator.
Only complaints from suppliers that participated in the specific procurement shall be reviewed.
A complaint shall contain the following information:
- supplier’s name and business contact information;
- reference information respecting the open call for bids; and
- a description of the supplier’s complaint.
2. Processing the Complaint
All public bodies shall have the primary responsibility to review and respond to any supplier complaint regarding their procurement process. The public body shall acknowledge receipt of such complaint in writing to the supplier. The head of the public body shall review the complaint and respond to the supplier within 15 days of receiving the complaint and shall provide the chief procurement officer with a copy of the response in accordance with Section 25 of the Regulations.
Upon preliminary review the head of the public body shall consider the complaint and may, in its discretion, dismiss a complaint on grounds including that:
- A debriefing has not yet taken place in accordance with the framework;
- The request was not made within the requirements of Section 25 of the Regulations;
- The supplier was not a participant in the procurement process; and
- The complainant has initiated legal action or has addressed the issue in another manner.
If the head of the public body dismisses a complaint, the head of the public body shall respond to the supplier in writing of the dismissal, including the reason(s) for such dismissal. The Chief Procurement Officer shall be copied on the response.
3. Public Body Review
If the complaint is not dismissed following preliminary review, the head of the public body shall review the complaint and procurement file in detail and:
- Discuss the issues with officials of the public body involved in the procurement;
- Seek further information and clarification from the supplier where required;
- Conclude the investigation and respond to the supplier in writing within 15 business days of receiving the complaint and copy the Chief Procurement Officer on the response; and
- Maintain a copy of the results and the response to the supplier for the procurement file.
23.4 Records, Documentation and Reports
Public bodies shall ensure that complete documentation and records on each complaint, including a record of all communications with complainants, are maintained in order to allow later verification to determine whether or not the supplier complaint was handled in accordance with the process framework.
The records on each complaint reviewed by public bodies shall contain a copy of the following:
- The complaint identifying the complainant’s name, address and the nature of the complaint;
- The competition documents, including the specifications or portions thereof relevant to the complaint;
- Any other documents that are relevant to the complaint, including the bids received, if judged appropriate;
- A statement setting out the facts, actions and recommendations, and response to the allegations of the complaint; and
- Any additional evidence or information that was necessary to review the complaint.