ATTORNEY GENERAL OF CANADA V RAPISCAN SYSTEMS INC.: REFLECTIONS ON THE CHALLENGE OF JUDICIAL REVIEW IN GOVERNMENT PROCUREMENT.

Attorney General of Canada v Rapiscan Systems Inc., 2014 FC 68, rev'd 2015 FCA 96, has raised the following question: when should unsuccessful participants or non-participants in government tendering processes be entitled to administrative law remedies against a government agency? This is a vexing question to which Canadian courts have given various (and contradictory) answers. No clear or consistent answer can be found in the jurisprudence of the Supreme Court. An answer, however, is clearly needed. Indeterminacy in this arena - and the complex and protracted litigation associated with it - is costly for all involved. This comment argues Canadian courts have lost their way in using administrative law to review government tendering. The principles of contract law - and only those principles - should govern public procurement disputes except in very particular and limited circumstances. This result is preferable both doctrinally and as a matter of policy. [ABSTRACT FROM AUTHOR]