$25 Million Claim for Damages in Competitive Dialogue Process
City of Brampton chose a competitive dialogue process for construction of office space. The RFP required respondents to sign a Confidentiality Agreement and commit to not make public announcements and have contact only with City's purchasing department. One respondent, Inzola, was disqualified for refusing to sign the Agreement and subsequently gave an interview to a local paper. Inzola challenged its disqualification, which was based on advice from the Fairness Advisor for the City. No unfairness proven, claim dismissed. This decision was subsequently confirmed on Appeal.
OpenA Glitch in Time Costs Cash
An RFT for a water main replacement in Ontario included a tender form, a page for each bidder to complete, sign and submit to the municipality. A closing time of 1:00 on a July afternoon was specified in the Information for Tenderers, but a closing time of 2:00 p.m. was specified in the tender form. Murphy's Law reared its head and litigation ensued.
OpenAcceptable Innovation or Breach of Contract
Contract for collection, hauling, storage of biosolids. Non-incumbent proposed a new methodology, and the tender anticipated this option, so award made to non-incumbent Entec. New technology led owner to terminate contract for purchase of storage as no longer needed. Dispute over right to terminate clause, challenge of award to alleged non-compliant bidder. Consideration of entitlement to damages where owner had right to cancel.
OpenAnalyzing FOI Disclosure Obligations in Procurement
Two decisions examining the tests for exemption from disclosure. The first related to an RFP for supplying computer hardware, and the second related to contracts to act as agents for PEI Provincial Nominee Program. In both cases there was detailed discussion about the application of exemptions, and in both cases the decisions of the public bodies were upheld. Not all business records are confidential or exempt from disclosure, there must be evidence that disclosure could reasonably harm the commercial interests of the third party resisting disclosure.
OpenAre Municipalities Bound under CFTA?
Discussion and review of municipal obligations under the CFTA, including section citations and references.
OpenBattle of the Forums – Which Court Governs? You Be The Judge
Proposal for leak detection services in Alberta had a clause giving Swiss courts jurisdiction. Subsequent purchase orders and contracts unclear. Court held that Alberta had jurisdiction to hear the case, as the contract was formed in Alberta and part performed and breached in Alberta.
OpenBC Courts To Revisit ‘Reprisal’ Clauses
J. Cote is an excavation contractor bidding on City of Burnaby tenders. In 2014 the City inserted a 'reprisal clause' essentially prohibiting bids from companies in litigation with the City. Because J.Cote was at the time involved in litigation on a matter related to a workplace accident, it was prohibited from bidding and challenged the validity and constitutionality of the clause. This BC Court decision concludes that the constitution and public policy claims should be heard along with the claim for compensation, not as separate matters. See also "Reprisal Clauses Revisited Repeatedly".
OpenBid Disrepair Invites Courtroom Despair
This article analyzes to concept of 'bid disrepair' whereby an initially compliant bid becomes non-compliant through concessions made during negotiations. Whether conducting a binding process or not, this is a subtle trap that can wreak havoc for even seasoned professionals.
OpenBidder Awarded $684,713 After Site Visit Confusion
Olympic was the low bidder on a tender for construction of a hospital extension in St. John's Newfoundland. Olympic challenged the contract award to a competitor, primarily due Olympic's alleged non-compliance with the requirement to attend a mandatory site visit. Olympic had missed the first site visit and the owner held a second site visit for Olympic. Ultimately Olympic's bid was rejected for missing the first site visit which was deemed mandatory. The winning company had attended both site visits. All this took place before closing.
OpenBreach of Contract A Costs Yukon First Nation
How would you define “local hire”? When and how might you take this into account in your competitive procurement (RFX) evaluations? And under what circumstances can an owner award a tendered contract to its own development corporation? Those are among the questions addressed in this case out of the Yukon related to a solicitation for the construction and engineering of local road upgrades.
OpenCan a Commercial Contract be Perpetual - Spotlight on Legal Risk
A group purchasing contract provided for automatic renewal unless option to renew not exercised by Gestion. Uniprix tried to terminate the contract, and Gestion objected. The Supreme Court of Canada found that Uniprix was bound in perpetuity because of the lack of specific termination rights for both sides. This emphasizes the importance of express termination rights in contracts.
OpenCan a Non Binding RFP Still Bind -YBTJ
A 2006 RFP, which specifically stated it would not result in a contract, was cancelled due to unsuccessful negotiations with the frontrunner, Everything Kosher. The Campus invited Everything Kosher to participate in the new RFP, issued on June 12, 2011. The 2011 RFP contained significant differences from the 2006 RFP, including downsized food service requirements and kitchen facilities. Everything Kosher submitted a proposal to the 2011 RFP, but it was not the successful proponent. It sued the Campus and CHAT for damages for breach of what it alleges was a 10-year, exclusive contract to provide food services and the use of kitchen facilities, per its response to the 2006 RFP.
OpenCan Copyright be Mentally Assigned -YBTJ
An action for copyright infringement was dismissed, as there was no evidence of copyright having been assigned in writing, as required by the Copyright Act. A good discussion of the elements of a claim for copyright infringement in the context of a software license agreement.
OpenCan Rectification Information be Used to Evaluate Rated Criteria? You Be the Judge
An unsuccessful bidder on a federal contract challenged the evaluation process, alleging the application of hidden criteria and improper rectification procedures.
OpenCase Comment Privilege Clauses Cause Confusion
Can owners lawfully accept (materially) non-compliant bids, or not? What is ‘the law’? This article reviews the pivotal cases on this issue, including MJB, Tercon, and Double N. Exclusion and 'no claims' clauses considered.
OpenCITT Finds DND Changed RFP Specs After Award
The federal government issued an RFP for stainless steel USB drives and then, after awarding the contract, changed the deliverables to plastic USB drives. Challenge by a rival bidder to the CITT was defended by the owner alleging it was a matter of contract administration and therefore out of the jurisdiction of the CITT. The CITT disagreed, finding that procurement of the plastic USB drives was in fact a sole source contract, and was not conducted in accordance with the procedures specified in the trade agreements.
OpenClearing Obstacles to Successful Projects - The Importance of Disclosure in Creating Tender Documents
North Pacific Roadbuilders Ltd. submitted a successful bid for construction of an ore haul road in Saskatchewan. The specs and technical information in the tender documents were prepared by UMA Engineering Ltd, which was later bought out by AECOM Canada Ltd. After contract award North Pacific alleged UMA had misrepresented the conditions of the terrain on which the road was to built, causing North Pacific to incur unanticipated costs. After considering the evidence and testimony the judge determined that some but not all of the information was in fact misleading, and awarded North Pacific $2 million in damages.
OpenCommas Continue to Confuse
This article reviews a number of cases where a single misplaced comma has created litigation and millions of dollars in damages. The O'Connor case involved a dispute over the payment of overtime for dairy truck drivers in Maine. The absence of a comma in the Maine law produced enough uncertainty for the court to rule in favor of the drivers and cost the dairy company and estimated $10 million.
OpenConstruction Compliance - Form Over Substance
This article discusses two cases related to non-compliance. The Pomerleau case was a summary judgment application related to the bidding process for construction of the second phase of the Royal Newfoundland Constabulary campus building and related work in St. John’s. Pomerleau challenged the government’s rejection of its bid as non-complaint due to an allegedly incomplete tender form. The second case discussed relates to a construction contract for a sewer system upgrade in which a rejected bid was submitted on an outdated form. In both cases the courts looked first to the tender documents for guidance, and reviewed the line of cases related to substantial compliance including Ron Engineering and Double N Earthmovers.
OpenContract Renewal vs. Extension: Understanding the Difference
We often hear the terms "contract renewal" and "contract extension" used interchangeably. However, it may surprise you to learn that these expressions can carry different legal implications.
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