Privilege Clause Again Under Scrutiny in Nova Scotia – You be the Judge
After a mandatory site visit the owner was contacted by a bidder who hadn't seen the original notice, and arranged a second site visit for that bidder. The second site visit was not deemed mandatory, as other bidders had attended the original visit. The bidder attending the second site visit submitted the lowest bid and was awarded the contract. Other bidders contested the compliance of that bid, and the matter proceeded to court. The article includes a discussion of the court's examination of privilege clauses in the tender document and an analysis of the three-part test in Tercon with respect to the enforceability of exclusion and privilege clauses.
OpenProcurement And Trade Agreements - A practical perspective on CFTA and CETA
This article offers practical considerations for compliance with CFTA and CETA, including a discussion of limited tendering, the use of prior experience, technical standards, notices and posting, prequalification and debriefing.
OpenProcurement Law Meets the Criminal Realm with Incumbent Discussions
Criminal charges against a federal employee related to the supply of information technology services to Library and Archives Canada were dismissed. The employee shared information with one of the bidders giving an unfair advantage, and had other inappropriate interactions, however the element of 'making opportunity for any person to defraud Her Majesty" was not proven. Judicial discussion of this element.
OpenProject Owners Liability for OHS Violations
In a recent decisionk te Supreme Court of Canada in R. v. Greater Sudbury, 2023 SCC 28 confirmed that project owners are now stricktly liable for occupational health and safety (OHS) violations on construction sites, even when a contractor assumes exclusive control over OHS matters as the contructor.
This decision is groundbreaking. The traditional belief that a hands-off approach to jobsite health and safety by project owners protected them from liability no longer holds true. Instead, keeping a hands-off approach may increase the project owner's exposure to OHS violations.
OpenPump Procurement Prompts Protest - YBTJ
PWGSC issued a solicitation for multiple frigate pumps, cancelled the solicitation after closing and the re-issued it with modifications Springcrest had submitted a compliant bid to the original solicitation and objected to the modified requirements in the re-issued process, alleging the requirements were biased in favor of the OEM suppliers and the process provided insufficient time for any other company to meet the requirements. Although the CITT found no deliberate discrimination, the timing of events made it impossible for non-OEM suppliers to meet the amended bid's requirements. CITT ruled the government must cancel the existing process and re-issue, either removing the requirement or allowing suppliers more time before closing. Springcrest was also awarded costs.
OpenReport Release Revisited
Have you ever wondered whether that Memo to Council or other briefing note would have to be produced in the course of a lawsuit? When might the claim of privilege apply to protect such information from disclosure, and what is the legal test? Does it matter whether the document contains elements of legal advice? See also the article True Non-Compliance in BC for more discussion on this case.
OpenReprisals Clauses Revisited Repeatedly.
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. The BC Supreme Court found that, in the absence of evidence of 'undue hardship'. the clause was not unconstitutional and therefore unenforceable. The claim was dismissed and the decision was upheld by the BC Court of Appeal. (See also "BC Courts to Revisit Reprisal Clauses")
OpenSocial Media Sparks Bias Allegations, CITT Orders Disclosure of Individual Evaluator’s Notes
PWGSC issued an RFP on behalf of the Coast Guard for the provision of 2 emergency towing vessels and awarded the contract to Atlantic Services Limited (“ATL”). Another bidder, Heiltsuk Horizon (“Horizon”), filed a complaint with the CITT alleging that ATL’s bid was non-compliant because its vessels did not meet one of the mandatory requirements, and that PWGSC had demonstrated bias in favour of ATL in the structuring of the RFP. CITT granted ATL intervener status in Horizon’s complaint because ATL had a vested interest in the outcome. The tribunal ruled that PWGSC acted unreasonably in concluding that ATL’s bid was compliant, but rejected the argument that PWGSC had shown bias in ATL’s favour.
OpenSubstantial Compliance Revisited
Lowest bidder on a construction tender notified the owner after closing of a substantial error in their bid price, asking to withdraw. The error was not obvious, so the owner refused to allow withdrawal, awarded to another bidder and sought damages from the original low bidder who argued that their bid was non-compliant. A good discussion of the Ron Engineering case, the Tercon case and the issue of substantial compliance.
OpenSupreme Court of Canada Upholds Reprisal Clause in Municipal Tender
Supreme Court of Canada refused to hear the appeal from a BCCA decision dismissing a claim by a construction contractor against the City of Burnaby. The City had inserted a reprisal clause - tenders not accepted if prior litigation - approximately three months after bidder had filed litigation on an unrelated matter. Bidder argued such a clause denied the bidder access to the courts, and resulted in possible business losses. BCCA and BCSC characterized reprisal clauses as a matter of contract, not legislation.
OpenThe CITT Emphasizes the Critical Importance of Plain Language in RFX Drafting
RFP issued by PWGSC for air traffic control radio systems was ambiguous about whether UHF, UVF or both, were required. CITT comments on the importance of having crystal clear requirements to ensure fair treatment. Meaning of 'preference' discussed.
OpenThe Need for Extra Caution when Incumbents are Involved
Criminal proceeding against a Director of IT for Library Archives Canada for 'making an opportunity' for an incumbent vendor to defraud the Crown were dismissed. Discussion of the element of fraud and Mr. Shum's communications and interactions with the incumbent vendor. Inappropriate information was shared with the incumbent vendor, but the criminal elements of the offence were not proven.
OpenThe Supreme Court of Canada Imposes a Duty of Good Faith
This pivotal Supreme Court of Canada decision has extended the duty of good faith to all commercial contracts in Canada, providing one more avenue for legal challenge of a performance contract (Contract B) or of any contract that may arise from a non-binding procurement process. The facts of this case revolve around negotiation related to contract renewal.
OpenThe Trinity of Risk Allocation in Contracts
Discussion of the interplay between limitation of liability clauses, indemnities and insurance provisions as a way to allocate and mitigate risk. Sample clauses are discussed, as well as potential enforceability issues with respect to limitation of liability. In the absence of such clauses, the common law applies. The article includes caution about over-use, and ensuring that they don't contradict each other. Not every contract needs all three.
OpenThumbs Up South West v Achter Land
The Canadian case of South west Teminals Ltd. v. Achter Land, 2023 SKKB 1.16 (CanLil) captured the world's attention, meriting an article in the New York times on July 7, 2023 and Forbes magazine on July 13 of that same year.
The case involves a contract disput between the buyer South West from the seller, Achter Land for flax. When Achter failed to deliver the flax, South West claimed breach of contract. Achter claimed there was never a binding contract due to uncertainty of terms and the manner in which Achter had communicated - namely by using a thumbs up emoji.
OpenTo Contract A or Not to Contract A - Part 1
This first installment of a three part article examines Contract A procurement obligations created by common law in Canada, as well as some of the factors that go into a decision to draft an RFx that does not create binding obligations.
OpenTo Contract A or Not to Contract A Part 3
This third installment of a three part article considers how to draft an RFx that excludes the application of common law Contract A obligations, and introduces the concept of drafting a 'Contract A Lite' inviting respondents to agree to be bound, but not requiring it.
OpenTo Contract A or Not: Part 2
The second installment of a three part article examines why an owner would want to create a Contract A binding RFx. Believe it or not, there are a few good reasons why you may want to consider it.
OpenTopsail Navigates the Murky Waters of Contract A
This case, which involved an inaformal select invite with no written RFx, is one of the first to consider the 13 indicators for Contract A set out in the Tercon Contractors case. Even though the process was informal, the Court found that enough of the indicators were present to constitute a procurement process attracting the common law obligations.
OpenTPG Update
Appeal from TPG Technology Consulting Ltd. v. Canada, 2014 FC 933was dismissed. The litigation involved allegations of conspiracy, bias and other improper conduct related to a federal government award of a $427 million contract for engineering and technical services. The lower courts had determined that, although there was a breach of fairness in the application of several evaluation criteria, TPG would still not have won the contract. The dismissal of the claim by lower courts was upheld by the Federal Court of Appeal. Referring to the Martel v Canada SCC case, the FCA confirmed that even if there was a breach of Contract A, a bidder is not entitled to damages if its' bid would still not have been successful had the breach not occurred.
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