3/7/2012

Obligations for Owners (US!)

1. The Duty of Full Disclosure - must fully disclose the nature of work, hidden dangers of work, rules of competition and final contract terms prior to the close of bidding 2. The Duty of Procedural Fairness - must treat all bidders procedurally fairly and equally in evaluation under disclosed rules 3. The Duty to Abide by the Terms - must abide by declared and implied rules throughout the competition

Jarlian Construction v. City of Waterloo (2007 OnSC)

- waiver clause - error clause - price adjustment
By awarding Xterra a contract at a price different than what was contained in its offer in the Bid Form, the City amended Xterras stipulated price.this it cannot do

3/7/2012

Canadian Competitive Bid Law CBL

Competitive Bidding and the Courts 1,800 competitive bidding lawsuits filed in Cdn courts per year, 300+ go to trial mostly construction related, often involving a public sector agency as defendant hot economy resulted in more lawsuits has become a specialized practice for some law firms

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The tendering law duty of fairness tends to divide into five general implied duties:
the duty to provide proper disclosure*; the duty to reject unqualified tenders; the duty to conduct a fair evaluation process; the duty to award to the winning bidder; and the duty to award the contract as tendered.
*Can also apply outside of Contract A as a tort duty (e.g. negligent misrepresentation)

The Clean Tender Doctrine (The Three Heads of Clean Tender Doctrine)

The clean tender doctrine has had a widespread effect on the rights of both purchasers and bidders, manifesting itself in the following ways:
Non-Compliance as Bidder Sword: Unsuccessful bidders launching successful claims against purchasers on the grounds that the contract was improperly awarded to a non-compliant competing bidder. Non-Compliance as Purchaser Shield: Defendant purchasers successfully shifting the issue by showing that the plaintiff bidders tender was non-compliant and the bidder was therefore ineligible for tendering law remedies. Non-Compliance as Bidder Shield: Defendant bidders successfully relying on their own non-compliance, asserting that they cannot be liable for failing to honour a tender that was never legally capable of acceptance.