Guilty Plea and $425,000 Fine for Bid-Rigging
The federal Competition Bureau announced in July that Les Enterprises Promécanic Ltée pled guilty in Quebec Superior Court to three criminal charges of rigging bids on three calls for tenders issued by general contractors in 2004 and 2005 to install ventilation systems in residential high-rise buildings in the Montreal area.
OpenHow Late is Too Late- YBTJ
Test your understanding of substantial compliance with mandatory requirements, with this recent case from B.C. The tender included mandatory attendance at a site visit. One bidder was late to the site visit and the court had to determine whether in fact that company had submitted a compliant bid.
OpenHow Precise Does Language Need to be in Software Licences YBTJ
This 2014 case from Quebec is a cautionary tale about ensuring that you include accurate wording about the scope of any licence, and consider and address the issue of revocability. Can the licence be revoked? If so, under what circumstances?
OpenImprove Supplier Assessment Protocols to Skirt Procurement Challenges
It is often said that the best defence is a good offence. This proactive thinking is prevalent throughout our public procurement training, emphasizing the importance of carving out adequate time to do effective procurement planning. Part of that planning should include considering strategies for selection of the ‘best value’ supplier – which will vary depending on the specifics of the procurement - as well as consideration of contract provisions that enable your organization to monitor, track and manage the promised deliverables to ensure that the expected value is received.
OpenInformation and Privacy Commissioner Upholds Refusal to Release Notes
Applicant requested access to information concerning a contract to install an Offender Telephone Call Control and Video Visitation System. A number of documents were withheld and others were redacted before release. The Applicant requested a review of the Department’s decisions. Analysis of two-step process for decision to withhold information related to notes of Department's decision.
OpenIs "Information Supplied in Confidence" in a Public-Sector Bid Protected?
All contract managers have seen the “Supplied in Confidence” (or similar) tag on bids and proposals. It’s a standard way for suppliers to protect what they believe is confidential, sensitive and/or proprietary information from public disclosure. Especially from disclosure to their competitors. But what exactly does that mean? In the landscape of our current access to information and protection of privacy legislation, does it in fact obligate a public organization to refuse to disclose the information if it receives a formal request for it?
The Supreme Court of Newfoundland and Labrador Trial Division (General) recently dealt with that question. Test your own understanding of access to information with this two-part You Be the Judge.
Judicial Review Adds Layer of Reasonableness
An RFP from the City of Kamloops for residential water meters included an upset score evaluation methodology where proponents had to meet a threshold score on the technical components before price would be considered. On a judicial review application, the BC Supreme Court found that the process was fair and transparently conducted, but the result was 'unreasonable'. Under a judicial review application the Court must not only be convinced that the competitive process was fair but that the outcome was reasonable. As this case shows, an organization can have one without the other – a perhaps troubling spectre for public-sector organizations exercising statutory decision-making authority.
OpenJudicial Review Expands Reach
Rapiscan felt it had been unfairly treated in a procurement process for screening technology for CATSA, to be used in airports across the country. Because the process was non-binding Rapiscan could not launch a common law challenge for breach of Contract A, so they proceeded by way of Judicial Review. The Courts discussed the expansion of this remedy to essentially fill the void in remedies left by non-binding procurements.
OpenJudicial Review in the Public Sector
In this case, the Ministry of Transportation (MTO) had awarded a contract to Thomas Cavanagh Construction Limited for highway work northeast of Toronto. Bot was an unsuccessful bidder on the project. Rather than proceeding under a claim for breach of Contract A, Bot chose instead to apply for a judicial review of the reasonableness of the MTO decision in awarding the construction contract to Cavanagh, based on the argument that Cavanagh was non-compliant because it failed to accurately declare the value of imported steel required for the project. This is one of the first cases to consider commercial procurement decisions under judicial review.
OpenLiquidated Damages or Penalty Clauses
An article discussing Liquidated Damages clauses in contracts. Often referred to as 'penalty clauses' these provisions should reflect reasonable losses anticipated and are not to be used to penalize a contractor beyond the extent of actual losses.
OpenLiquidated Damages or Unenforceable Penalty Clause
Does a $500,000 damages clause constitute an unenforceable penalty, or a reasonable pre-estimate of liquidated damages? How do the courts actually approach this analysis when losses cannot be precisely quantified, and how does the principle of freedom of contract play into it? These were some of the important questions addressed by the B.C. Supreme Court in this decision.
OpenManipulation of Contracts Results in Fraud Convictions
Criminal convictions resulted from contract awards for heating plant repairs over a four year period at the Shearwater military base, managed by the Department of National Defence (“DND”). A civilian employee and a contractor were convicted of fraud committed against the federal government, an offence under section 380(1) of the Criminal Code, after extensive internal reviews and a lengthy criminal trial. The contractor was also convicted of conferring an advantage on a government employee, contrary to section 121(1)(b) of the Criminal Code.
OpenNavigating Substantial Compliance
In this case article the B.C. Supreme Court provided significant guidance on the issue of determining compliance with mandatory requirements, particularly in the face of the ever-expanding discretion and privilege clauses we are now seeing in major procurement documents. At issue was whether the bids were non-compliant, and therefore free of Contract a obligations.
OpenNew Supreme Court of Canada Ruling Emphasizes the Importance of RFP Planning
The Supreme Court of Canada refused leave to appeal filed by Mega Reporting Inc. without giving reasons. This case emphasizes the importance of balancing limitation of liability and exclusion clauses in the RFx with clear evaluation process. For lower court decisions see "Deficient Documentation Leads to Mega Lawsuit".
OpenNS Supreme Court Finds No Contract A Obligations
A municipality bidding on a tire recycling contract was unsuccessful, and challenged for breach of Contract A obligations. The Court reviewed the RFP terms, in addition to the 13 factors outlined in the Tercon decision, and concluded that no Contract A had been formed, therefore no implied obligations were in issue. A good review of the case law principles related to non-binding procurements.
OpenOwner Pays $3.8 Million for Its Own Defective Pipe Design
BC Supreme Court decision finding the owner liable for the cost of repairing steel pipe used in two water main projects. The owner had provided flawed specifications for the pipe in its tender package, and the successful contractor built the pipe to this custom spec. The pipe failed causing nearly $4M in damages. This case was overturned by the Court of Appeal which held the contractor liable for not bringing the defective specs to the attention of the owner, partly due to a warranty provision in the supply contract.
OpenOwner’s Misrepresentation Causes Friction
Owner misrepresented the sub-surface soil conditions as part of the information to bidders. As a result, the foundation had to be redesigned prior to construction by the winning bidder. Winning bidder was awarded $500K for extra work required.
OpenPart 1 BIDDER BARRING BOUNDARIES
Discussion of legitimate and defensible ground for bidder debarment, including persistent performance problems. Review of common law and trade agreement requirements. Length of debarment and scope of application of such provisions, along with sample clause.
OpenPart Two BIDDER BARRING BOUNDARIES: Defensible Debarment
Second article on ways to establish defensible debarment procedures in public sector. Strategies include proactive establishment of debarment policy, include legitimate reasons for debarment, notify bidders in advance in the RFx, and allow for due process before rendering final decision.
OpenPoor Evaluation Process Costs Federal Government More than $100,000
Federal Court of Appeal review of a CITT ruling finding in favor of Almon, related to a procurement for aircraft de-icing services. After reviewing the four purposes of the regulatory regime: fairness to competitors in the procurement system, ensuring competition among bidders, efficiency, and integrity, the FCA found that the CITT had committed reviewable errors.
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