OVERVIEW OF THE LAW OF BIDDING AND TENDERING

Abstract

The Contract A/Contract B analysis used by the Supreme Court of Canada in the seminal case of R. v. Ron Engineering was not the innovation that many commentators believe it to have been; collateral contracts have long been recognized by the courts. The law of bidding and tendering is no more than a set of presumptions, generally capable of being rebutted by careful drafting by the Owner in a Call for Tenders. The integrity of the bidding process can be protected in ways other than requiring a Bidder whose Bid price is too low due to a mistake to honour its price. The Owner’s duty of “fairness” in bidding and tendering should be more precisely defined as an implied term that an Owner will not base its decision on criteria which are neither expressly disclosed nor inferable from the Call for tenders.