By: Chad Eggerman, Janelle Anderson, and Taylor Moroz

This article is the first in a three-part series examining public procurement in Canada from the perspective of private contractors and suppliers. This first article outlines the core principles of public procurement law in Canada. The second article will focus on Indigenous procurement in Canada. The third article will focus on public defence procurement and the Government of Canada’s recently released federal strategy to procure defence-related goods and services.

Public procurement in Canada refers to the structured competitive processes through which municipal, provincial, and federal governments purchase goods and services from the private sector. These processes are governed by enforceable legal principles. For private contractors who wish to sell goods and services to governments in Canada, understanding these principles is essential. They shape how your submission is evaluated, how competitors are treated, and whether you have recourse against the government if a key principle is breached. Below are five key principles that define public procurement across Canada and that every contractor should understand before submitting a bid, proposal, or submission to any competitive public procurement process.

Fairness is the foundation of Canadian public procurement law. Once a public owner issues a tender, or more commonly a Request for Proposals (“RFP”), or other originating public procurement document, the public entity assumes legal duties toward respondents, particularly compliant bidders. Those duties require the public owner to evaluate submissions in accordance with the rules it established at the outset. Although less common, traditional tender processes establish a binding “Contract A” governing the tender process, requiring the public owner to both follows its rules and ultimately award the procurement (“Contract B”) to a compliant bidder.

1. Fairness

For contractors, this means the procurement documentation is the rulebook. If the owner states that proposals will be evaluated based on price, experience, and methodology, the public entity must evaluate submissions based on those stated criteria. The public entity cannot introduce undisclosed considerations or apply hidden preferences, as this would be unfair.

Of course, maintaining fairness in a competitive public procurement process does not guarantee that a contractor will win the contract. It ensures that a contractor will be assessed according to the disclosed framework. Where that framework is not followed, legal remedies may be available, depending on the structure of the process and the governing law.

2. Transparency

Transparency requires public owners to clearly communicate how the competition will operate. This includes identifying mandatory requirements, setting out evaluation criteria, explaining the selection methodology, and providing key commercial terms such as the form of contract.

For contractors, when a public owner is fully transparent, practical considerations result:

• You must clearly distinguish between mandatory requirements and evaluation criteria;
• You must submit a fully compliant bid in accordance with all mandatory requirements;
• You should scrutinize vague or undefined evaluation language and obtain feedback through the Q&A process (if applicable);
• You should review and propose amendments to the draft contract appended to the procurement documentation during and in compliance with the procurement process—not only if you are the successful respondent.

In traditional tenders, non-compliance with mandatory requirements can result in automatic disqualification. More flexible RFP processes may permit clarification or negotiation, but only expressly allowed. Transparency limits discretion and reduces the risk of arbitrary decision-making.

3. Equal Treatment

Equal treatment requires that all compliant respondents be treated consistently throughout the process. This principle frequently becomes central in procurement disputes.

If one respondent is disqualified for failing to include a required form, another respondent with the same deficiency should not be permitted to correct it unless the procurement document allows that flexibility and it is applied uniformly. Similarly, clarification opportunities, deadline extensions, and communications must be managed consistently.

For contractors, unequal treatment can be a warning sign. Pay attention to:

• Whether addenda are issued to all bidders simultaneously;
• Whether mandatory criteria are enforced consistently;
• Whether post-closing communications appear selective;
• Whether scoring aligns with disclosed criteria.

Public owners may retain discretion in certain RFP formats, but that discretion must be exercised fairly and consistently. Selective forgiveness or inconsistent enforcement exposes a process to challenge by contractors.

4. Non-Discrimination

Many public procurements are subject to binding trade agreements. Where applicable, these agreements frequently prohibit discriminatory practices.

Where applicable trade agreements govern, public owners are generally restricted from:

• Applying exclusive local preference scoring in the evaluation process;
• Restricting participation in a procurement process only to local or regional suppliers;
• Drafting specifications designed to exclude out-of-province or foreign respondents.

For contractors operating across provincial or national boundaries, these protections are significant. Trade agreements include formal complaint mechanisms, but timelines are strict and procedural requirements must be followed carefully. Early legal assessment is often critical if a trade-based challenge is being considered.

5. Procedural Integrity

Procedural integrity requires the owner to follow the process it designed. Once a procurement is launched, the owner must adhere to its stated evaluation method, respect closing deadlines, and apply the disclosed scoring or selection framework.

From a contractor’s perspective, this principle highlights the importance of vigilance during the process. Contractors should monitor:

• Changes to scope or evaluation criteria through addenda;
• Extensions or modifications to deadlines;
• Deviations from the stated evaluation method;
• Irregularities in post-closing negotiations or issues identified during a debrief.

Procurement challenges are often time sensitive. Waiting until after contract execution can significantly limit available remedies. Courts and review bodies place substantial weight on documentation, including evaluation records and correspondence. Identifying potential issues early allows for strategic decisions about whether to seek clarification, submit a complaint, or preserve rights.

Practical Considerations Before You Bid

Understanding these five principles should influence how you approach public procurement opportunities. Before submitting a proposal, consider:

• Is this a strict traditional tender or a more flexible and common RFP?
• Which requirements are truly mandatory?
• Does a trade agreement apply?
• Does the draft contract allocate risk in a commercially reasonable way? Is the draft contract commercially acceptable in its standard form, or are amendments required? Are clarifications necessary to understand the contract?
• Are there ambiguities in the procurement process that should be clarified before closing?

How Procido LLP’s Construction Group Can Assist

Public procurement is not merely about technical capability or price competitiveness. It is a regulated process governed by these defined key legal principles. Contractors who understand these principles are better positioned to submit compliant bids, manage risk, respond effectively if a process falls astray, and ultimately win competitive public procurements.

Participating in competitive public procurement requires managing legal risk before, during, and after the procurement process. For contractors operating in Saskatchewan and across the Prairies, disciplined strategy can be the difference between a successful award and an avoidable dispute.

Procido LLP’s Construction Group advises private contractors, subcontractors, and suppliers at every stage of the procurement lifecycle, including:

• Bid review and strategy before submission, including analysis of mandatory criteria, trade agreement applicability, and risk allocation in draft contracts;
• Procurement fairness assessments, where irregularities arise during evaluation or award, including representation in a debrief;
• Trade agreement and administrative law challenges, where appropriate and time sensitive remedies are required;
• Contract negotiation and structuring, ensuring contract terms, including indemnities, limitation of liability clauses, insurance requirements, termination provisions, etc. align with your commercial risk tolerance and available resources;
• Construction litigation and dispute resolution, including resolution of procurement disputes, injunctions, damages claims, arbitration, mediation, and court action.

If you are preparing a response to a public competitive procurement process, assessing concerns about a recent award, or looking to strengthen your internal procurement strategy, we invite you to connect directly with our team. Chad Eggerman, Founding Partner of Procido LLP can be reached at chad.eggerman@procido.com or +1 306 380 7664. Janelle Anderson, Senior Associate at Procido LLP can be reached at janelle.anderson@procido.com or +1 306 380 9316. Taylor Moroz, Associate at Procido LLP can be reached at taylor.moroz@procido.com or +1 306 380 5946.

In the second article in this series on public procurement, we will examine Indigenous procurement in Canada and focus on what industry needs to know about working together with Indigenous groups on the procurement of goods and services.