It’s useful to remember that before she was appointed to the Supreme Court of Canada in 1989 and developed a reputation in legal circles for her Charter decisions, Chief Justice Beverley McLachlin researched and wrote in the area of construction law.

Revisiting these past interests, McLachlin CJC wrote an article for an ADR newsletter not too long ago which has also recently reappeared in the US law journal Faulkner Law Review: “Judging the ‘Vanishing Trial’ in the Construction Industry” (2011) 2 Faulkner L Rev 315.

In her reflective piece McLachlin CJC begins by recounting the benefits of alternative dispute mechanisms and the reasons why commercial parties are increasingly abandoning courts in favour of ADR processes, including: (i) the technical and legal complexity of matters being disputed and the consequent desirability of adjudicators with special expertise, (ii) speedier resolution, (iii) preservation of business relationships, (iv) flexibility in processes and outcomes, and (v) confidentiality. Acknowledging the benefits often realized through ADR, as well as the overarching goal of justice systems to facilitate justice, she concludes that: “ADR is here to stay, and that is a good thing.” A further benefit of ADR processes that is often omitted from accounts of its benefits is the fact that it is good for taxpayers because they reduce the burden on courts’ resources.

But she goes on to cite a body of literature which has cautioned of the broader implications of the wholesale relocation of dispute resolution from public courtrooms to private settings and the loss of the “collateral benefits” of resolving disputes by trial, and notes a number of things that ADR generally can’t or doesn’t or won’t do, namely:

• In terms of broader public interests:
  • Allowing opportunities for intervention by persons not party to lawsuits,
  • Allowing the discovery and publication of important facts,
  • Aiding/facilitating the structural transformation of public and private institutions,
  • Satisfying public interests by providing checks on government power, and
  • Catharsis in dealing with events of public importance.
• And in terms of the practical concerns of the process of law-making:
  • The continued development of operative legal principles and “norm-setting”,
  • The interpretation of laws so standards for behavior are set, known and enforced, and
  • The furnishing of rules and precedents to guide bargaining outside the courts and the settlement of future disputes.

Primarily concerned with the nature of ADR settlements as either completely confidential or, if they are not secret, as “little more than an announcement of how much money changed hands”, McLachlin CJC expresses concern for a future world where the development of law is stunted by a lack of “reasoned and transparent” adjudication or any record of such. Formal ADR processes themselves, which still depend heavily on knowledge of the state of the law, would eventually suffer themselves as a result of dwindling authorities, and in a nightmare scenario bargaining power would tend to pass from parties with the best legal position and (back to) parties able to muster the most threat. This vision echoes the Hobbesian nightmare.

I myself have pointed out the benefits of ADR processes like mediation in the past (www.adambaker.net/mediation-is-good-business/), and, like McLachlin CJC, I think it is hard to deny them and would personally recommend ADR to any client if was apparent that it was in their best interests. But I am also inclined to agree that there is a downside and share her concern for the long term development of the common law.

Benefits of Alternative Dispute Resolution and its use in the construction industry

I won’t rehearse in detail the relative costs and benefits of alternative dispute resolution here, as they are now well known and have been discussed at length by other, more learned writers and practitioners. Some good American blogs on the subject include Ron White’s The Critical Path which is focused on ADR in the context of construction disputes, and Victoria Pynchon’s Negotiation Law Blog, which deals with negotiation and mediation more broadly (both are professional mediators). Another site worth a spot in your RSS feed is Virginia attorney Christopher Hill’s Construction Law Musings, which deals with construction issues generally but which frequently includes posts on ADR.

Suffice it to say that ADR has become widely used in the construction industry in Canada and the United States. It has yet to become as popular in Newfoundland and Labrador but ADR generally is still gaining traction as a method of settling commercial disputes (arbitration in this province is still predominantly labour arbitration). But it is gaining ground and sophisticated commercial contracts, including construction contracts, will include provisions for arbitration or other ADR.

And because of ADR it is possible that the courts may be losing touch with the evolving commercial practices and customs of the construction industry, since they have less contact with it.

A Construction Court?

While it is generally understood that as a matter of public policy encouraging parties to settle their differences out of court is a good thing, one silver lining to a construction industry with a litigious culture was that judges got well-acquainted with the issues and developed a body of jurisprudence understood to be responsive to the issues.

In the United Kingdom, the Queen’s Bench division of the High Court of England and Wales actually has a specialized sub-division called the Technology and Construction Court, which deals primarily with, as one might expect, disputes in the context of technology and construction. As an aside, decisions from the TCC can be found at BAILII here. Construction litigators in Newfoundland and Labrador or elsewhere in Canada might find it worthwhile to pay attention to judicial reasons from the Construction Court.

So, the TCC is a division of the High Court and has all the powers of a court, but also has the advantage of specialization, often touted as an advantage of ADR vehicles, and tends to render decisions of very good quality.

Canada already has some specialized courts. For example, the Tax Court of Canada, and the provincial superior court divisions which have been created to deal with family law matters (in Newfoundland and Labrador the Supreme Court – Family Division).

Can and should Canada have a specialized construction court? The answer may well be no, given that Canada does not have a centralized court system comparable to that of England and Wales – the provincial superior courts will generally have jurisdiction in construction disputes – and any particular province may not have enough construction (and technology) disputes to warrant the creation of a separate division (this said, some provinces, and I am thinking of Alberta and British Columbia, where many of our decisions come from these days, very well might).

But given that sophisticated arbitrations may often involve a level of time, expense and preparation comparable to litigation, if the expertise element were also a non-issue then parties might well want to litigate from the outset.

So, Newfoundland and Labrador Supreme Court – Technology and Construction Division?

Tercon Contractors Ltd. v British Columbia (Transportation and Highways), 2006 BCSC 499, revd 2007 BCCA 592, revd 2010 SCC 4, [2010] 1 SCR 69, online: LexUM http://scc.lexum.umontreal.ca/en/2010/2010scc4/2010scc4.html

This case, similar the earlier case of M.J.B., considered the effect of an exclusion clause in the context of an acceptance of a non-compliant bid. The exclusion clause in this case was more broadly worded than the privilege clause in M.J.B.

Facts

In 2000, the British Columbia Ministry of Transportation and Highways (the “Ministry”) issued a request for expression of interest (“RFEI”) for a major highway design-build project. Six teams of interested contractors made submissions, including Tercon Contractors (“Tercon”) and Brentwood Enterprises (“Brentwood”). After receiving the submissions the Ministry changed its mind and decided to perform the design function itself and issued a request for proposals (“RFP”) for the construction contract only.

The RFP was issued in January 2001 and included among its terms a provision that only participants in the original RFEI process were pre-qualified to bid. The RFP also included a broadly worded exclusion clause excluding liability on the part of the Province for any damage claims arising “as a result of participating in this RFP”. It was specifically worded as follows:

Except as expressly and specifically permited in these Instructions to Proponents, no Proponent shall have and claim for compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a Proposal each Proponent shall be deemed to have agreed that it has no claim (para 60).

Brentwood found itself unable to submit a competitive bid on its own in part as a result of a lack of experience in drilling and blasting and engaged Emil Anderson Construction (“EAC”) to work with it on the bid. Brentwood sent a preliminary submission to the Ministry’s project manager to advise them that it had changed its team structure and wished to form a joint venture with EAC. The Ministry never responded to this preliminary submission, although it fact it should have pursuant to the provincial Ministry of Transportation and Highways Act then in force. Unlike Brentwood, EAC was not a participant in the original RFEI process and was not on its own an eligible bidder. Brentwood and EAC submitted a bid in Brentwood’s name. Although it understood that the Brentwood/EAC joint venture submission did not constitute an eligible bid, the Ministry nonetheless accepted it and took steps to obscure the reality of the situation. Brentwood and Tercon’s bids were shortlisted and of the two Brentwood was selected for the project.

Tercon sued the Ministry for damages on the basis that acceptance of an ineligible bid constituted a breach of contract, and that the breach had cost it an award of the project.

Procedural history

The trial judge accepted Tercon’s arguments and awarded expectation damages. On the issue of the application of the exclusion clause, she found that it was ambiguously worded and applied the contra proerentem rule to resolve the ambiguity in favour of Tercon, and she also held that the Ministry’s breach was fundamental and thus that it was not fair or reasonable to enforce the clause in light of such a breach. The Court of Appeal reversed the trial decision on the basis that the exclusion clause did cover the Ministry’s default.

Issues to be determined

1. Did the province breach the tender contract by accepting a bid from an ineligible bidder?
2. Does the exclusion clause bar a claim for damages for breach of the tendering contract?

Holding

1. Yes
2. No, on an interpretation of the clause that found that it did not apply to the circumstances of the breach.

Rule of law

On the issue of the enforceability of exclusion clauses, courts must undertake a three-part inquiry for enforceability:

1. As a matter of interpretation, does the clause apply to the circumstances established in evidence?
2. If it applies, was it unconscionable at the time the contract was made?
3. If it applies and is valid, should the court nonetheless refuse enforcement based on an overriding issue of public policy?

Minority reasons

In a five to four split, the majority reasons for decision were delivered by Justice Cromwell (Justices LeBel, Deschamps, Fish and Charron concurring), while dissenting reasons were written by Justice Binne (Chief Justice McLachlin and Justices Abella and Rothstein concurring in dissent).

In his majority reasons for decision Cromwell J adopted a test put forward by Binnie J in the minority reasons, and so it makes sense to discuss the dissenting reasons first.

Before launching into his dissent, Binne J prefaced them with a statement that sets the tone for the minority reasons:

The important legal issue raised by this appeal is whether, and in what circumstances, a court will deny a defendant contract breaker the benefit of an exclusion of liability clause to which the innocent party, not being under any sort of disability, has agreed. (para 81)

Binnie J did not spend much time on the question of whether the Ministry had breached their obligations to Tercon under the RFP, being satisfied with the finding at trial that they had, and his dissent focuses on the issue of the enforceability of exclusion clauses such as the one contained in the RFP. He noted that:

The appeal thus brings into conflict the public policy that favours a fair, open and transparent bid process, and the freedom of contract of sophisticated and experienced parties in a commercial environment to craft their own contractual relations. I agree with Tercon that the public interest favours an orderly and fair scheme for tendering in the construction industry, but there is also a public interest in leaving knowledgeable parties free to order their own commercial affairs. In my view, on the facts of this case, the Court should not rewrite – nor should the Court refuse to give effect to – the terms agreed to by the parties.” (para 85)

Reviewing Supreme Court jurisprudence on bidding and tendering since its decision in Ron Engineering, Binne J emphasized the contractual nature of the Contract A/Contract B construct, concluding that “contract A continues to be based not on some abstract externally imposed rule of law but based on the presumed (and occasionally implied) intent of the parties. Only in rare circumstances will the Court relieve a party from the bargain it has made.” (para 93).

Turning to the exclusion clause Binnie J stated that there were two separate questions to answer in addressing the clause’s applicability, (i) whether there were a statutory or other legal reason why the parties would not have been free to negotiate the exclusion clause, and (ii) if there were any other reasons why the clause should not be enforced in the circumstances (such as fundamental breach).

On the first question, Tercon had argued that the statute under which the RFP had been undertaken communicated a policy that the Ministry should be accountable for its actions and thus that an exclusion clause was incompatible with the statute. Binnie J gave short shrift to this argument stating that the statute “no where prohibits the parties from negotiating a ‘no claims’ clause” (para 101).

Turning to the second question Binnie J reviewed what was then the leading Canadian case on fundamental breach: Hunter Engineering Co. v Syncrude Canada Ltd. [1989] 1 SCR 426. In that case the Supreme Court had unanimously upheld a contested exclusion clause, but diverged in their assessments of when a court could properly refuse to enforce an exclusion clause. In Hunter, Dickson CJ favoured a pre-breach analysis of whether the clause was unconscionable at the time the contract was made. Wilson J favoured a post-breach analysis considering whether, in the event of a fundamental breach, it were still fair in the circumstances to allow enforcement of an exclusion clause:

Wilson J. considered it more desirable to develop through the common law a post-breach analysis seeking a “balance between the obvious desirability of allowing the parties to make their own bargains . . . and the obvious undesirability of having the courts used to enforce bargains in favour of parties who are totally repudiating such bargains themselves” (p. 510) (para 109)

Binnie J then turned to other more recent cases on the issue of fundamental breach, focusing on considerations of public policy. He was generally of the view that no rule of law needed to be explicitly stated that that a court could resort to public policy to reuse to enforce a contract, but that such discretion on the part of the court went without saying. “Freedom of contract, like any freedom, may be abused” he stated, giving examples of such abuses which would clearly justify refusal to uphold an exclusion clause on grounds of public policy.

Based on his survey of the jurisprudence on the enforcement of exclusion clauses, Binnie J thus stated a three part inquiry for assessing enforceability:

1. As a matter of interpretation, does the clause apply to the circumstances established in evidence?
2. If it applies, was it unconscionable at the time the contract was made?
3. If it applies and is valid, should the court nonetheless refuse enforcement based on an overriding issue of public policy?

The onus of proof of this last inquiry lies on the party seeking to avoid enforcement. (paras 122-123)

Applying this three-part inquiry to the case, Binnie J found that the exclusion clause did apply, holding that Tercon did “participate” in the RFP process, whether or not the process was compromised. (para 128)

On the question of whether the clause was unconscionable, Binnie J held that that while “Tercon is not on the same level of power and authority as the Ministry”, is was nonetheless a major contractor and well able to look after itself, so there was no “relevant” imbalance of bargaining power. (para 131)
On the question of an overriding concern of public policy, Binnie J stated that while “there is a public interest in a fair and transparent bidding process, it cannot be ratcheted up to defeat the enforcement of Contract A in this case.” (para 135) He acknowledged the clear validity of Tercon’s complaints about the Ministry’s handling of the RFP, having no real issue with the trial judge’s “condemnation” of the Ministry’s lack of fairness and transparency, but held simply that that the “Ministry’s misconduct did not rise to the level” required for a court to refuse enforcement on grounds of public policy. (para 140).

Binnie J would have dismissed the appeal.

Majority reasons

Like Binne J, before rehearsing the facts and formally framing the issues Cromwell J prefaced his reasons with a summary paragraph whose wording set the tone for the majority reasons:

The Province accepted a bid from a bidder who was not eligible to participate in the tender and then took steps to ensure that this fact was not disclosed. The main question on appeal, as I see it, is whether the Province succeeded in excluding its liability for damages flowing from this conduct through an exclusion clause inserted into the contract. I share the view of the trial judge that it did not (para 1).

1. Did Brentwood submit an eligible bid?

Cromwell J began by reviewing the authorities for the formation of Contract A in the bidding process and on the nature of implied terms. While the Ministry did not contest the existence of Contract A on Appeal as they had at trial, Cromwell J thought it prudent to review the reasons for the trial finding that Contract A had formed.

The Ministry had not in fact issued a call for tenders, but, as mentioned, a “request for proposals”.

Note: RFP processes are typically used where a project has a significant design element or where for some other reason it makes sense to entertain feedback from prospective bidders with competing solutions prior to negotiating a final contract with one of them. In a definitional sense, they are distinct from a classic call for tenders; but in practice it is sometimes hard to tell the difference.

The terms of the RFP included among other things a period of irrevocability, a requirement of bid security, significant formalities surround the submission of documents, and a set of detailed evaluation criteria. As a result, despite the fact that some details of the main contract were left to be negotiated with the successful bidder, the trial found that the parties had actually agreed to enter a contractual agreement governing the bidding process; i.e. that Contract A had formed.

Cromwell J noted that this model is a little more complicated than the simpler Ron Engineering-style Contract A/Contract B model, where the terms of Contract B are fully articulated from the outset. But, he noted that this did not impact the analysis of the case at hand, and further, it was not necessary to explore in full detail all the terms and conditions of Contract A. The question was merely whether it was a term of Contract A that the Ministry accept bids only from eligible bidders (para 21).

Cromwell J agreed with the trial finding of fact that the bid was ineligible and that the Ministry well knew it:

[The Ministry] had a bid which it knew to be on behalf of a joint venture. Permitting the bid to proceed in this way gave the joint venture a competitive advantage in the bidding process, and the record could not be clearer that the joint venture nature of the bid was one of its attractions during the selection process. The Province nonetheless submits that so long as only the name of Brentwood appears on the bid and ultimate Contract B, all is well. If ever a submission advocated placing form over substance, this is it” (para 49).

Cromwell J further found that the Ministry’s conduct “not only breached the eligibility provision of the tender documents, but also the implied duty to act fairly towards all bidders.” (para 59).

2. Does the exclusion clause successfully exclude the Ministry’s liability for the breach?

Cromwell J first turned briefly to the question of fundamental breach in relation to exclusion clauses, saying that he felt it was time to “lay this doctrine to rest”, although he subsequently said little else about it (para 62).

Cromwell J did state that he agreed with Binne J’s analytical approach to the applicability of an exclusion clause, but disagreed with Binnie J on the interpretation of the clause. As a consequence he did move beyond the first part of the three-part inquiry. Rehearsing some of the legal principles applicable to interpretation of contractual terms, Cromwell J emphasized the principle that terms be read in the context of the entire agreement and highlighted the decision taken by the Court in past cases to carefully “consider the special commercial context of tendering”, and reiterated the view that “[e]ffective tendering ultimately depends on the integrity and business efficacy of the tendering process” (para 67). He went on:

The closed list of bidders was the foundation of this RFP and there were important competitive advantages to a bidder who could side-step that limitation. Thus, it seems to me that both the integrity and the business efficacy of the tendering process support an interpretation that would allow the exclusion clause to operate compatibly with the eligibility limitations that were at the very root of the RFP.

The same may be said with respect to the implied duty of fairness. As Iacobucci and Major JJ, who wrote for the Court in Martel at para. 88, “[i]mplying an obligation to treat all bidders fairly and equally is consistent with the goal of protecting and promoting the integrity of the bidding process.” It seems to me that clear language is necessary to exclude liability for breach of such a basic requirement of the tendering process, particularly in the case of public procurement. (paras 70-71)

Cromwell J asserted that interpreting the exclusion clause this way did not rob it of meaning, but merely that it could not have been intended to operate when the Ministry’s failure to adhere to the RFP process was such as to be completely outside the process altogether. (para 76)

Cromwell J finally stated that in any event if his interpretation of the clause was incorrect, he agreed also with the trial judge’s reasons on the ambiguity of the clause and that it should be read in favour of Tercon. (para 79) Cromwell J restored the trial judgment.

Double N Earthmovers Ltd. v Edmonton (City), 213 AR 81 (ABQB), affd [2005] AJ No 221 (ABCA), affd 2007 SCC 3, [2007] 1 SCR 116, online: LexUM http://scc.lexum.umontreal.ca/en/2007/2007scc3/2007scc3.html

This case is addresses the issue of compliance with the terms of a call for tenders. It was a five-four split at the level of the Supreme Court of Canada.

Facts

In 1986 the City of Edmonton (the ‘City’) issued a call for tenders for a 30-month contract to supply heavy equipment and operators (in particular some bulldozers and a motor scraper) at the city’s landfill.

Not surprisingly for a contract concerned entirely with the supply of equipment, the tender documents included three pages of equipment requirements in addition to the main tender form. The tender form itself included a number of requirements including a requirement that each item of equipment had to be 1980 or newer. The tender also required that bidders be local to the City of Edmonton and that they supply a bid bond.

The equipment spec sheets required provision of detailed information about the particular pieces that a bidder was proposing to supply, including make, model, serial number, date of manufacture, and hourly billing rate.
Other tender conditions of note were Condition 17, which stated that tender conditions “must be strictly complied with and failure to do so either in whole or in part may invalidate the bid in question” (para 38), as well as Condition 7, a privilege clause:

The City reserves the right to reject any and all Tenders, and to waive any informality therein, to award by item or class. The lowest or any Tender may not necessarily be accepted (para 39) (emphasis added).

Tender Condition 25 also proved important to the outcome: “Changes in Tenders will not be permitted after the Tenders have been opened, unless negotiated with the lowest evaluated Tenderer” (para 58).

Six bids were submitted and subsequently opened on 25 June 1986. The City assessed the value of each bid by multiplying the per hour rate of each piece of equipment by the estimated number of hours a particular piece was expected to be used in the 30-month period. Under this formula Sureway Construction (“Sureway”) was the third lowest bidder and Double N Earthmovers (“Double N”) was the fourth lowest bidder. The lowest bidder was disqualified because it was not a local contractor.

Around 7 July, the City entered into separate negotiations with the second lowest bidder, Sureway, and Double N, but the second lowest bidder was also then disqualified because it had not submitted a bid bond. With only Sureway and Double N remaining, the City told Sureway that if it could reduce its rate for one of the pieces of equipment it “would probably” get the contract (para 18). Double N also revised its bid but still came in higher than Sureway’s prices. At this meeting Double N complained to the City that Sureway’s equipment was not actually 1980 or better, but the City took no action on this.

In fact, although Sureway had listed one of its dozers as 1980 it was actually a 1979. Further, the second dozer was listed as a “1977 or 1980 rental unit”, presumably meaning that if the 1977 described was not accepted then Sureway would rent a 1980 unit to meet their obligations (para 13).

Sureway was awarded the contract on 18 August with work to commence on 1 September. Before they could start work Sureway had to “register” their equipment with the City for billing purposes, and at that point it became clear that the equipment was older than the tender requirements specified. The City called a meeting on 29 August and insisted that Sureway comply with the 1980 requirement and Sureway agreed to upgrade within 30 days. A week later, Sureway sent a letter saying that it could not comply and would continue to supply the 1979 dozer. The City decided not to push the matter any further.

Double N sued the City for breach of contract and the City brought in Sureway as a third party.

Procedural history

Double N’s claim was dismissed at trial. The trial judge found that Sureway’s bid was compliant, and that the City had no duty to investigate it. He was also of the view that all of the tender contracts came to an end once the City entered Contract B with one bidder, and that the City could not be liable to unsuccessful bidders for post-Contract B dealings.

The Alberta Court of Appeal unanimously dismissed the appeal, agreeing that Sureway’s bid was compliant on its face and that the City had no obligation to investigate suspicions of non-compliance.

Issues to be determined

1. Did the City accept a non-compliant bid?
2. Does an owner have a duty to investigate suspicions of non-compliance?
3. Did the City engage in bid shopping?
4. Did the City award based on terms different from those in the tender?
5. Do Contract A obligations survive the formation of Contract B?

Holding

1. No, since the terms of the tender included discretion to waive informalities.
2. No.
3. No, since the tender documents reserved a right to negotiate with the low bidder after opening.
4. No.
5. No.

Reasoning

In a five to four split, the majority decision was delivered by Justices Abella and Rothstein (Justices LeBel, Deschamps and Fish concurring), while dissenting reasons were written by Justice Charron (Chief Justice McLachlin and Justices Bastarache and Binnie concurring in dissent).

Before discussing the particular issues the majority restated the authorities for the formation and terms of Contract A, and noted the implied obligation to accept only compliant bids found in M.J.B., and the implied obligation to treat bidders “fairly and equally” found in Martel (para 32).

Issue 1: Did the City accept a non-compliant bid?

Concerning the first dozer, the majority said that since it was listed as a 1980 on the face of the bid then Sureway could be taken to have promised to supply a 1980 machine and so was compliant on this point. Concerning the second dozer, where Sureway has promised to supply a “1977 or 1980 rental unit”, Double N conceded that the tender did not prohibit bidders from offering alternative pieces of equipment, but that the 1977 piece was non-compliant because it was older than 1980 and the “1980 rental unit” was non-compliant because no other information was included for it. The majority stated that it was apparent that the make, model and hourly rate were to apply to the proposed rental unit and that only the serial number requirement and a City of Edmonton license number requirement would be unmet.

The majority held that the serial and license numbers were “informalities” of the sort contemplated by the privilege clause, stating that “an informality would generally be something that did not materially affect the price or performance of Contract B” (para 41).

Issue 2: Does an owner have a duty to investigate suspicions of non-compliance?

In the absence of any provision in the tender documents expressly creating an obligation to do so, the majority considered whether such an obligation should be implied.

The majority stated simply that “[t]here is no reason why the parties would expect an owner would investigate whether a bidder will comply, when each bidder is legally obliged to comply in the event its bid is accepted” (para 51).

Issue 3: Did the City engage in bid shopping?

Double N never raised this issue in the lower court proceedings.

The majority first cited some judicial definitions of bid shopping. But, in response to Double N’s argument that the post-tender negotiations violated the tender process as defined by Iaocobucci J in M.J.B., the majority stated that Condition 25 of this particular tender clearly contemplates the possibility of “some measure of negotiation” (para 58). Exercising their right to negotiate with Sureway under Condition 25 could not constitute a breach on the part of the City.

Issue 4: Did the City award the contract on terms different from those of the original tender?

This issue is raised as a consequence of Sureway’s bid of a 1980 dozer which in reality was a 1979 dozer. The majority held that since the City did not know that the dozer was not in fact a 1980 until after they had accepted the tender then they had not awarded the contract on different terms (para 66).

Issue 5: Do Contract A obligations survive the formation of Contract B?

The majority held that when “an owner undertakes a fair evaluation and enters in Contract B on the terms set out in the tender documents, Contract A is fully performed” (para 71). An unsuccessful bidder would not be privy to Contract B and cannot require the cancellation of that contract based on rights which existed under a tender contract which had been completed.

For a bidder to sue on Contract A, an owner would have had to engage in conduct that amounted to breach while Contract A was still in effect.

Minority reasons

In her minority reasons for decision Charron J took a position significantly at odds with that of the majority, contending that the City had in fact breached its implied obligations of accepting only compliant bids and of treating all bidders equally and fairly. In particular, the minority were especially offended by the fact that Sureway had in the end managed to profit from essentially deceitful conduct in the course of the tender process.

In their own review of the facts, the minority paid particular attention to the repeated attempts of Double N to bring to the City’s attention Sureway’s likely non-compliance, which the City could have easily checked simply by checking the license numbers Sureway provided against their own municipal database. The majority addressed this issue and dismissed it saying that allegations by rival bidders cannot be taken to compel owners to investigate those allegations, since encouraging “unwarranted and unfair attacks” would work to the detriment of the bidding process (para 52).

Charron J disagreed with the majority that the specifications not included by Sureway were mere informalities said that “given the circumstances of the case, it was not open to the City ignore these specifications.” She went on:

The City’s casual approach to Sureway’s bid, particularly in light of the warning it received about the bid’s likely non-compliance, was unfair to other bidders who provided accurate information in accordance with the tender specifications. The obligation to accept only a compliant bid would be meaningless if it did not include the duty to take reasonable steps to ensure that the bid is compliant (para 116) (emphasis added).

So, Charron J would have actually extended the obligation of owners beyond merely ensuring that bids are compliant “on their face” but to take “reasonable steps” to ensure compliance – in this case by checking information in the bids against their own records.

In addition to the issues of informalities and a duty to take reasonable steps to investigate bids for compliance, Charron J also addressed the issue of ambiguity in bidding. She characterized the “1977 or 1980 rental unit” component of Sureway’s bid as “ambiguous at best”, and that since the ambiguity “related to an essential term of the contract” it could not be said to be a “mere irregularity” (para 120). The City argued that, although the ambiguity made it unclear whether Sureway was promising to comply or not, it had a right to insist on ultimate compliance. Charron J took issue with this position, stating:

The right to insist on compliance cannot turn what it on its face a non-compliant bid into a compliant one. Furthermore, I fail to see how the integrity of the bidding process is protected by allowing a bidder to get rid of the competition unfairly and then hash it out with the owner after it has been awarded the contract. Approaching the tendering process in this manner encourages precisely the sort of duplicity seen in the present appeal. . . . This approach is not consistent with a fair and open process (para 123).

Charron J also, in assessing the liabilities, would have found Sureway liable for a significant portion of the costs as a consequence of their deliberate inducement of the City to accept a non-compliant tender (para 129).

Note Bene

On bid shopping: While the majority concluded that the City had not breached any Contract A obligations by negotiating with Sureway after the opening of tenders, it did note that its port-tender negotiations with Double N probably did constitute a breach on the part of the City in respect of its Contract A obligations to the other bidders (para 61).

Naylor Group Inc. v Ellis-Don Construction Ltd., [1996] OJ No 3247, 31 CLR (2d) 195 (ON Gen Div), revd [1999] 119 OAC 182 (ONCA), vard 2001 SCC 58, [2001] 2 SCR 943, online: LexUM http://scc.lexum.umontreal.ca/en/2001/2001scc58/2001scc58.html

This is not a tender dispute between an owner and a bidder, but between a general contractor and a subcontractor whose prices were used to secure a low bid.

Facts

In 1991 an Ontario hospital corporation issued a call for tenders for renovations to its hospital. It used a bid depository in place in Ontario.

Note: A bid depository is an institution independent from both owners and bidders which is sometimes used as a vehicle for a tender process for complex projects where a number of subcontractors and suppliers will be submitting bids alongside those of the general contractors. The purpose of a depository is to help provide structure and fairness to the process. Bid depositories operate pursuant to a set of rules which have to be observed by all parties using a particular depository.

Ellis-Don Construction (“ED”) intended to bid on the hospital project as a general contractor. In early November 1991 ED approached Naylor Group (“Naylor”), a contractor with expertise in electrical work, about submitting a bid as an electrical subtrade. Subcontractors’ bids were to be submitted by 12 December. Naylor raised the issue of union affiliation. Its employees were members of an “in-house” union, and were not affiliated with the International Brotherhood of Electrical Workers (“IBEW”). ED told Naylor that this would not be a problem in carrying them as a subcontractor.

But, ED was involved in a long-standing dispute with IBEW over exclusivity of bargaining rights, which dispute had culminated in an 18-day hearing before the Ontario Labour Relations Board (“OLRB”) the previous year; a decision from the OLRB was pending at the time of ED’s communications with Naylor.

Naylor spent six weeks preparing a detailed bid and on opening of the subtrade bids was the lowest at $5.5 million, a significant $400,000 lower than the next lowest bidder, Comstock Canada (“Comstock”). Comstock was an IBEW-affiliated subcontractor.

ED carried Naylor’s bid and was the lowest bidding general contractor for the hospital project at a total bid price of $38.1 million. The trial judge found as a fact that if ED had carried Comstock’s price for the electrical work then they would not have been the lowest overall bidder might very well have lost the prime contract on that account.

Because of delays in receiving funding from the Ontario provincial government, the owner hospital corporation asked ED for a delay in accepting the tender until May 1992; ED in turn asked Naylor and the other subcontractors for similar extensions. Naylor requested a letter from ED to confirm its intent to subcontract with it for the electrical work if and when ED’s tender for the prime contract was accepted. ED refused on the basis of a stated practice not to sign letters of intent prior to the award of a prime contract.

Meanwhile, on 28 February 1992 the OLRB released a decision in the matter of ED and IBEW confirming that ED had a standing collective bargaining commitment to using only electrical subcontractors affiliated with IBEW. By 10 March ED’s project manager for the hospital project knew about the adverse OLRB decision.

As well, while the foregoing events were unfolding the owner hospital corporation issued revisions to the project documents notwithstanding the fact that the tenders had closed; such revisions are a common occurrence in the context of large or complex construction projects. But, despite now having knowledge of the OLRB ruling on its obligations to IBEW, ED asked Naylor, together with other subcontractors, for price revisions to reflect the changes in the project. Naylor’s revised quote was carried by the ED in its revised tender.

In April, Naylor was made aware by some of their suppliers that ED had been shopping their bid to other electrical contractors for the purpose of finding a replacement for Naylor who could contract at a price comparable to Naylor’s. Naylor complained to the owner hospital corporation to no avail, who finally awarded the project to ED in May, the awarded contract still ostensibly contemplating Naylor as a participating subcontractor. ED at first attempted to convince Naylor to move from its own union and align with IBEW. When Naylor declined to do so ED wrote to Naylor to say that the OLRB decision prevented them from entering into a subcontract with them. ED subsequently provided a letter of intent to enter a subcontract with a different electrical subcontractor – which subcontractor had not originally submitted a bid for the project – at a price nearly identical to Naylor’s.

Naylor sued for breach of contract and unjust enrichment.

Procedural history

The trial judge dismissed Naylor’s contractual claim on that basis that no contract had ever come into existence between the parties and if it had it was frustrated by the OLRB decision. But, as damages for unjust enrichment the trial judge awarded Naylor the costs incurred through the process of preparing their bid.

Naylor appealed and the Court of Appeal did award some damages for breach of contract. Weiler JA applied the analysis deployed in Ron Engineering to find that all bidders using the bid depository necessarily agreed to its rules and those rules formed a part of the “preliminary contract or Contract A”. While a subcontractor was not automatically entitled to an award the rules of the bid depository stated that they must get the award unless either the prime contractor or the owner had a “reasonable objection”. She held that ED’s objection was not reasonable.

ED appealed to the Supreme Court of Canada on the issue of liability and Naylor cross-appealed on the issue of the amount of the award.

Issues to be determined

If, pursuant to rules of bid depository, a general contractor uses a sub-contractor’s prices in securing an award for a tendered contract, does it have any legal obligations in respect of that sub-contractor?

Holding

Yes, the nature of those obligations being informed by the particular rules of the depository.

Rule of law

Tender or process contracts as arise by way of the operation of the ordinary principles of contracts. There nothing barring the formation of tender contracts between general contracts and subcontractors if those parties have agreed to terms and conditions for such.

Reasoning

The unanimous judgment of the court of delivered by Justice Binnie (Chief Justice McLachlin and Justices Iacobucci, Major, Bastarache, Arbour and LeBel also sat for the appeal).

Binnie J, after briefly discussing the purpose and function of bid depositories, began by reiterating the Contract A/Contract B analysis as set out in Ron Engineering and M.J.B. Although those cases dealt with the formation of tender contracts between owners and prime contractors, Binnie J reasoned that the Ron Engineering approach was founded on “ordinary principles of contract formation” and so there was no reason why that approach should not apply to prime contractors and subcontractors (para 36).

Binnie J found that the particular bid depository rules under which the prime contractors’ and subtrades’ bids had been submitted were inconsistent with any automatic right of a subcontractor to enter Contract B with a prime contractor if the prime contractor’s bid was successful. But, Binnie J nonetheless held that a prime contractors still have Contract A obligations to subtrades whose bids they have carried, noting that the “Bid Depository does not operate simply for the prime contractor’s convenience” (para 41).

Binnie J noted that the rules and procedures of the bid depository itself referenced the need for respecting the “sanctity” of bids and assuring bidders that their bids would not be shopped. He agreed with Weiler JA that while there was no automatic right on the part of a subcontractor whose bid was carried to enter into a subcontract, the general assurance that they would in fact be given the subcontract subject only to a “reasonable” objection “was for subcontractors the most important term of Contract A” (para 45). He further stated that this term was not one that he was attempting to imply, but one that arose directly from the rules of the depository (para 49).

Before moving on to consider whether ED had breached its obligations, so defined, under Contract A, Binnie J first consider the issue of whether the tender contract was frustrated by the OLRB decision. He held that under neither the traditional “implied term” approach to frustration nor under the preferred modern “supervening event” approach could the doctrine of frustration apply for two separate reasons. First, an adverse OLRB decision was foreseeable for ED; and, further, the OLRB decision did not create an obligation for ED to give electrical work only to IBEW workers, it merely recognized an already existing obligation to do so (para 57). Second, the terms of the tender contract itself created a “reasonable objection” discretionary mechanism for refusal to carry a bid. This exit option could clearly be used to deal with any “supervening circumstances” and so there was no need to consider a court-imposed remedy (para 59). Instead, the question was more appropriately whether ED had breached its obligations under the tender contract by “unreasonably” objecting to entering a subcontract with Naylor.

Binnie J held that ED’s Contract A obligations to Naylor were assumed at a time when they knew that they were inconsistent with obligations that they might have in respect of IBEW. EDs subsequent non-performance under Contract A was not rendered non-compensable by the fact of ED having assumed competing obligations (para 63). They failed to show, after using Naylor’s bid to secure the prime contract and reassuring Naylor that their non-IBEW union affiliation would not be a problem, that their rejection of Naylor was reasonable for the purposes of discharging their obligations under Contract A. As such ED was in breach of Contract A.

Binnie J agreed that lost profits (expectation damages) were an appropriate measure of damages and did in fact increases the damage award based on a reduction in quantum undertaken by the Court of Appeal that he felt to be unsupported by the evidence. He further held that since Naylor had been found to be entitled to damages flowing from breach of contract there was no reason to consider the alternative ground of damages flowing from unjust enrichment.

Nota Bene

Binnie J observed that tort allegations along the lines of negligent misrepresentation “lurked in the background” of Naylor’s submissions, but since torts had not been argued at any level of court he was not going to consider the issue (para 38).

Martel Building Ltd. v Canada, [1997] 129 FTR 249 (FCTD), revd [1998] 163 DLR (4th) 504 (FCA), leave to appeal refused, 2000 SCC 60, [2000] 2 SCR 860, online: LexUM http://scc.lexum.umontreal.ca/en/2000/2000scc60/2000scc60.html

Facts

Note: This case deals with the possibility of a tort action in negligence for breach of a duty of care during negotiation of a contract (specifically during the solicitation and evaluation of tendered bids). As well, the issue of a breach of a duty of good faith, while not ruled on, was also raised. For these reasons the facts need to be given in some detail.

Martel Building (‘Martel’) owned a commercial property in Ottawa which was largely occupied by a Division of the federal Department of Public Works (the ‘Department’) under a 10-year lease. The lease was set to expire on 31 August 1993 and contained an option for renewal. Martel’s President and CEO (the ‘CEO’) arranged to meet with the Department’s Chief of Leasing (the ‘Chief’) to discuss a renewal and in March 1991 met with one of the Chief’s subordinates (the ‘Subordinate’). The CEO communicated Martel’s desire to renew the lease, and, in conjunction with the renewal, to retrofit the property. In May the CEO sent the Chief a letter reiterating Martel’s intentions.

In June the Chief met with the Acting Director of Accommodation (the ‘Director’) and informed him of Martel’s position. The Director told the Chief that the Department wanted issue a call for tenders for accommodations but also instructed the Chief to get a price from Martel. The Chief told the Subordinate to contact the CEO. Neither the Subordinate nor the Chief contacted Martel.

In February 1992 the Chief was asked to get a proposal for a defined lease term from Martel; as well, between October 1991 and April 1992 the Chief led the Department to believe that a proposal from Martel was in the works. The CEO was not aware of these expectations. The only action taken by the Chief during this period was to arrange an independent appraisal of the Martel building.

The CEO attempted to arrange a meeting with the Department in December 1991, but failed to get a meeting. The CEO never got a meeting with the Department until 15 April 1992, after trying again in the spring. The Department – represented by the Chief and another official (the ‘Other Official’) – and the CEO maintained different accounts of the content of the meeting, but the trial judge accepted that Martel understood tendering to be a possibility, but that the meeting signified commencement of negotiations for a renewal. The CEO gave the officials a price proposal. The Chief told the CEO that an independent appraisal had been commission and that they would let Martel know when the results were in.

The Department set a drop-dead date for negotiations for 30 June 1992, after which they would start the tender process; they later moved the drop-dead date to October 2. The CEO and the Other Official met several times between June and September 1992 to discuss revised prices, none of which fell within the range suggested by the commissioned appraisal.

In October, the CEO heard that tendering was underway and called the Chief on October 14. He learned that the internal mechanisms required for a tender process had in fact begun after the original June 30 drop-dead date. Ostensibly this was because the bureaucratic process required to procure accommodations was complex and time-consuming. An initial internal report recommending renegotiating the Martel lease was considered in September and again on October 9. At this point, because of declining rental rates the Department decided to proceed to tender. The CEO called the Chief and the Other Official once again on October 14 and 15. In response he got a letter saying that the tendering process was going ahead and no proposal would be accepted from him after October 22. The October 22 deadline was then extended to October 27.

On October 27 a Department advertisement for expressions of interest appeared in the paper. On the same day the Department met with the CEO, who, according to him, left with the understanding that if he met a certain price point then the Department would recommend renewal to the Treasury Board. Two days later the CEO called the Chief to say that he could meet the price requirement and the following day sent a written proposal. On receiving the proposal that day the Department decided that all the remaining terms of the lease would have to be finalized that day, including a requirement for full details of the planned retrofit. Martel was unable to provide those details by the end of the afternoon.

A rejection letter was sent to the CEO on November 26, and on the same day tender documents were issued with a December 3 submission deadline.

Martel submitted a bid and was the lowest bidder. They were not awarded the contract; the tender documents contained a privilege clause reserving the right not to accept the lowest or any tender (similar to the clause used in M.J.B. Enterprises). The decision to award to the second lowest bidder was based on a “net present value” method of financial analysis where prices submitted were adjusted by adding costs that the Department expected to incur as a result of choosing a particular bidder (primarily fit-up costs).

Martel sued in contract for breach of an implied term to renew arising out of the lease itself or out of the October 1992 agreement. Martel also sued in tort alleging breach of a duty to negotiate in good faith and negligent conduct of the negotiation and tender processes.

Procedural history

The Federal Court trial judge dismissed the contract claim and declined to consider liability based on breach of a duty to negotiate in good faith because she doubted whether such a duty existed at law in Canada. She also did not address the issue of negligence in tendering but observed that the assessment of fit up costs which were added to the plaintiff’s bid appeared “somewhat arbitrary” (para. 23). The trial judge did conclude that the relationship between the parties was proximate enough to give rise to a duty of care in negotiation, that it was reasonably foreseeable that the Department’s carelessness might cause damage, and that Department had in fact conducted itself in a negligent manner. But, she went on to conclude that Martel had not sufficiently established the required tort element of causation and dismissed the action.

The Federal Court of Appeal also declined to consider the issue of any duty to negotiate in good faith, but agreed with the trial judge that the conduct of the negotiations gave rise to a duty of care which had been breached. The Court of Appeal also took up the issue of negligence in tendering and found that the call for tenders created a contractual obligation to treat all bidders fairly. This obligation, although contractual, placed the parties in sufficient proximity to create a duty of care which the Department had breached by evaluating bids according to undisclosed conditions. On negotiations, the Court of Appeal held that the Department’s negligence effectively deprived Martel of the opportunity to negotiate a renewal; on tendering, the Department’s negligence deprived Martel of the opportunity for full participation and of a reasonable expectation of award. Where the trial judge concluded that Martel failed to prove causation, the Court of Appeal concluded that the Department’s conduct was the principal cause of both Martel’s loss of opportunity to negotiate and of Martel’s loss of a reasonable expectation of an award under the tender process.

Issues to be determined

1. Does a duty of care exist in the context of negotiations and does the tort of negligence extend to pure economic losses arising from the conduct of pre-contractual negotiations?
2. Did the Court of Appeal err in finding that a duty of care was owed in the tendering process and that the duty was breached?

Holding

1. No.
2. Yes.

Rule of law

On the issue of extending tort liability to economic loss in the context of contractual negotiations, the Court agreed that there was sufficient proximity between the parties to create a prima facie duty of care, but there were nonetheless compelling policy reasons to decline to extend such a duty in law.

On the issue of tort liability in the context of the preparation of tenders – arising as a result of a plaintiff’s past relationship with the party preparing the tender – the court held that as a matter of policy it would be fundamentally inconsistent to with the basic rationale of tendering of fostering competition between bidders to extend such a duty in respect of particular bidders who might as a result obtain an unfair advantage in bidding.

On the issue of tort liability in respect of the evaluation of tenders the court held that to the extent that such a duty of care existed it existed concurrently with the owner’s duties under the tender contract, which it had not sufficiently breached to cause damage to the plaintiff.

Reasoning

On the extension of tort liability to pure economic losses in the context of commercial negotiations:

The unanimous judgment of the court of delivered by Justices Iacobucci and Major (Chief Justice McLachlin
and Justices Gonthier, Bastarache, Binne and Arbour also sat for the appeal).

The Court first turned to a consideration of the question of tort liability in respect of pre-contractual negotiations. They noted that at the time of their decision Canadian common law had recognized five distinct categories of potentially compensable economic loss:

• Independent liability of statutory public authorities
• Negligent misrepresentation
• Negligent performance of a service
• Negligent supply of shoddy goods or structures, or
• Relational economic loss

But the Court held that alleged negligence in the conduct of commercial negotiations did not fall into any of these five categories.

To address the question of whether a novel tort should be established for pure economic loss in the context of commercial negotiations the Court turned to the Anns/Kamloops two-stage analysis for extension of a duty of care in a given case. The two stages of the Anns/Kamloops test address (i) Proximity, and (ii) Policy.

The Court found that there was sufficient proximity to raise a prima facie duty of care between the parties: “Although the Department is a government actor, in its negotiations with Martel, it was exercising an operational rather than a policy function. As such, this finding of a prima facie duty of care is not precluded by the appellant claiming to have exercised a bona fide discretionary policy decision” (para 53).

Having found sufficient proximity to raise a duty of care, however, the Court held that there were “compelling policy reasons to conclude that one commercial party should not have to be mindful of another commercial party’s legitimate interests in an arm’s length negotiation” (para 55). In particular it enumerated five discrete policy reasons for declining to extend the duty of care.

Foremost among these concerns was the issue of indeterminate liability. Discussing this issue the Court observed that the very nature of negotiation required rational economic actors to attempt to achieve gains potentially at the expense of the other party, noting too that the traditional view of economic loss by the courts was that from a social perspective it was less worthy of protection than physical or property harm.

Second, citing secondary literature, the Court expressed concern about the potential social and economic costs of extending a duty of care to commercial negotiations. The Court described the conduct of the Crown through its agents as contemptuous and discourteous, but observed that the Crown was able to conduct itself in this fashion in part as a consequence of its position of dominance in the Ottawa leasing market. It stated that advantages held by one party over another do not by themselves “point to liability” (para 65).

Third, the Court expressed the opinion that creating a tort like this would allow parties to use it as “after-the-fact” insurance against their own failures to conduct due diligence or properly hedge risks in the conduct of negotiations (para 68).

Fouth, the Court was unwilling to put the justice system in the position of being a regulator of pre-contractual conduct given the causes of action already available to contracting parties through doctrines such as undue influence, economic duress, and unconscionability, and to bargaining parties through the torts of negligent misrepresentation, fraud and deceit (para 70).

Fifth and finally, the Court stated that “needless litigation” should be discouraged, and in consideration of the “number of negotiations that do not culminate in agreement, the potential for increased litigation in place of allowing market forces to operate seems obvious” (para 71).

On the issue of whether a duty of care exists in the tendering process:

Iacobucci and Major JJ began by examining the Court of Appeal decision and determining that the Court of Appeal had conflated the contexts of (1) tender preparation and (2) tender evaluation in its assessment and finding of negligence on the part of the Department. This is an important distinction because the preparation of tender documents occurs prior to the formation of any tender contract (the so-called “Contract A”), while evaluation of tenders occurs after. As such, there can be no tort liability flowing from a contractual relationship for actions which occurred prior to the formation of that contract, and the Court stated that the two issues needed to be addressed separately.

Prior to exploring these issues, the Court reviewed the law of bidding and tendering as set out in its previous decisions in R. v Ron Engineering, [1981] 1 SCR 111 and M.J.B. Enterprises Ltd. v Defence Construction (1951) Ltd., [1999] 1 SCR 619. Pursuant to these decisions the Court found that the parties had in fact intended to initiate a contractual relationship via a tender process contract and that that contract included a term similar to that in M.J.B. that bidders were to submit compliant bids (para 87).

The Court also felt it justified based on the parties’ presumed intentions to imply a term in the tender contract that the owner would be “fair and consistent in the assessment of tender bids.” The Court stated:

Implying an obligation to treat all bidders fairly and equally is consistent with the goal of protecting and promoting the integrity of the bidding process, and benefits all parties involved. Without this implied term, tenderers, whose fate could be predetermined by some undisclosed standards, would either incur significant expenses in preparing futile bids or ultimately avoid participating in the tender process (para 88).

The Court further stated that, while the extent of obligation of fair and equal treatment would be determined by the terms of the particular contract, “[a] privilege clause reserving the right not to accept the lowest or any bids does not exclude the obligation to treat all bidders fairly” (para 89).

In examining the tender documents, the Court found that the Department had in fact reserved wide discretion for itself in the evaluation of tenders, and had not breached its duty of fairness to Martel in respect of the assessment of the fit-up costs. This said, the Court did find that the Department had breached its duty to act fairly and consistently in respect of the addition of costs for installation of a security card system Martel’s bid, which it did not add to the prices of other bidders. These costs by themselves if not added to Martel’s bid still left a significant margin between Martel and the lowest bidder; and so the Court found that damages for breach of Contract A were precluded for want of causation.

Turning back to the issue at the Court of Appeal of general negligence claims in respect of the tendering process, the Court considered first the question of negligence in the evaluation of tenders. Acknowledging that concurrent or alternative liability in tort can exist with liability in contract, the Court stated that “the duty of care alleged in tort in the case at bar is the same as the duty which is implied as a term of Contract A” (para 107). Since they had already canvassed the issue of contractual liability and found none, the Court similarly declined to find liability in tort.

On the issue of negligence in drafting and preparation of tender documents, the Court again turned an Anns two-stage analysis. It did not, however, concern itself with the question of proximity and proceeded directly to the policy branch of the test to conclude that there was no duty of care in respect of the preparation of tender documents.

The Court reasoned that Martel’s arguments generally related to its prior relationship with the Department, and that to recognize a duty on the part of an owner to take into account its past relationship with a particular prospective bidder would be “inconsistent with the basic rationale of tendering”, which is to “replace negotiation with competition” (para 116). The obligation of fairness to all bidders precludes giving an advantage to one bidder based on past dealings, and further a party calling for tenders must necessarily have the discretion to change its mind as to the final terms to be included in a call for tenders.

Finally, the Court felt that introducing a duty of care into the context of tender preparation could have the potential effect of allowing a bidder to use such a duty to get around a contractual provision that they had not complied with (in Martel’s case, a tender requirement for continuous space), or allow unsuccessful, non-compliant bidders “to sue in negligence and argue that the terms of Contract A ‘did not reflect the reality of the situation’” (para 119).

So, in sum, all of Martel’s arguments for liability in tort ultimately failed.

The Court restored the judgment rendered at trial.

Nota Bene

On the issue of tort liability, the Court noted that Martel’s claim resembled an assertion of a legal duty to bargain in good faith, but that a breach of a duty of good faith was not actually alleged. As such, they declined to consider the question (para 73).

M.J.B. Enterprises Ltd. v Defence Construction (1951) Ltd., [1994] 164 AR 399 (ABQB), affd [1997] 196 AR 124 (ABCA), revd [1999] 1 SCR 619, online: LexUM http://scc.lexum.umontreal.ca/en/1999/1999scr1-619/1999scr1-619.html

Facts

The respondent, Defence Construction (‘Defence’), invited tenders for construction of a water pumping and distribution system on a Canadian Forces Base in Alberta. It received four bids, including one from the appellant, M.J.B. Enterprises (‘M.J.B.’), who was the second lowest bidder, and one from Sorochan Enterprises (‘Sorochan’), who submitted the lowest bid.

The tender documents contained a privilege clause worded as follows: “The lowest or any tender shall not necessarily be accepted”.

The original tender package instructed bidders to provide split pricing. A typical lump sum price was required for one portion of the project (the pump house and a few other items). Apart from these facilities a major portion of the project involved digging a trench system for the piping to be laid in and backfilling the trenches with different types of material (stone, natural backfill, or concrete slurry) contingent on the site conditions of a particular trench section. So, for the piping portion of the job the tender required provision of separate lineal meter unit prices for the three different types of fill where the final quantities of each type were to be determined in the field by a supervising engineer. The total amount of pipe and trenching required was known at the time of tendering, but not the individual amounts of each type of fill which would finally be required. An amendment to the tender package changed this pricing scheme to require – instead of the separate unit prices – only a single unit price for all types of fill material regardless of the relative amounts of each type that might finally be required onsite.

On submission and opening of the bids Sorochan’s was the lowest. But they had included a note with their bid documents essentially stating that their pricing was based on a certain amount of backfill type fill but if more stone fill was in fact required then their unit price was to be adjusted.

M.J.B. and the other bidders complained that the note was a conditional qualification of Sorochan’s bid and rendered their bid invalid. Defence took the position that the note was merely a “clarification” and accepted Sorochan’s bid. M.J.B., the second-lowest bidder, sued for breach of contract arguing that Sorochan’s bid should have been disqualified and that they should have been awarded the job instead since they had submitted the lowest valid bid.

Procedural history

The trial judge agreed with M.J.B. that Sorochan’s note qualified their bid, but held that the privilege clause eliminated any obligation on Defence to award the contract to M.J.B. as the second lowest bidder. The Alberta Court of Appeal dismissed the appeal, holding that the privilege clause was “a complete answer” to the action (para. 12).

Issue to be determined

In a call for tenders, does the inclusion of a privilege clause in the tender documents allow the owner to disregard the lowest bid in favour of any other tender, including a non-compliant one?

Holding

No.

Rule of law

Tender contracts can arise as a result of call for tenders and the terms and conditions of a tender contract are determined by the provisions of the tender documents and by the intentions of the parties.

Although a privilege clause reserving the right not to accept to the lowest or any bids successfully gives the owner a qualified discretion not to award to the lowest bidder, it does not operate to override an implied promise to accept only compliant bids.

Reasoning

Justice Iacobucci delivered the unanimous judgment of the Court (Chief Justice Lamer and Justices Cory, McLachlin, Major, Bastarache and Binnie also sat for the appeal).

He began by discussing the holding in Ron Engineering that a contract can arise on the submission of a bid in response to a tender call and that the terms of that contract would be governed by the terms and conditions of the tender call. Iacobucci J. noted that the decision of Estey J. in Ron Engineering was primarily concerned with the duties and obligations of the bidder under such a contract. By contrast, the facts in M.J.B. raised the issue of the duties of the owner under a contract arising from a tender call.

Rehearsing some of Estey J’s reasons in Ron Engineering, Iacobucci J expressed some misgivings about characterizing Contract A as a unilateral contract, but agreed with the Court’s reasons in Ron Engineering that, depending on the terms and conditions and context of tender call, a call for tenders could indeed give rise to a separate contract intended by the parties to govern the tender process. That is, it is cannot be true that a contract arises in every situation or that such a contract will have particular terms, such as irrevocability. But such contracts certainly can be created, again, depending on the terms and conditions of the call (paras 17-19).

Iacobucci J found that a tender contract had been arisen between the parties, saying that:

At a minimum, the respondent offered, in inviting tenders through a formal tendering process involving complex documentation and terms, to consider bids for Contract B. In submitting its tender, the appellant accepted this offer. The submission of the tender is good consideration for the respondent’s promise, as the tender was a benefit to the respondent, prepared at a not insignificant cost to the appellant, and accompanied by Bid Security (para 23).

Turning to the issues of the terms of that contract, the argument raised by the appellant was that it was a term of the tender contract that Contract B be awarded to the lowest compliant tender. Iacobucci J rejected an argument that it was an explicit term of Contract A finding no clear support for such a term in the tender documents themselves.

Reviewing the law on implied terms, Iacobucci J found that it was an implied term of the tender contract that the owner was under an obligation to accept only a “compliant” tender, based in part on the reasoning that he found it “difficult to accept” that prospective bidders, including the appellant, “would have submitted a tender unless it was understood by all involved that only a compliant tender would be accepted” (para 30).

Finding that a tender contract had arisen and that it included an implied term to accept only compliant bids, Iacobucci J then turned to a consideration of the effect of the privilege clause and found that it did not operate to override the obligation to accept only compliant bids (para 45). Instead, he found that the clause could be used to allow owners to (i) take a more “nuanced” view of costs in assessing bids or (ii) to cancel a tender in the event of unforeseen circumstances, such as inadequacies discovered in the project design specifications after the fact. This said, Iacobucci J also indicated that “the rejection of the lowest bid would not imply that a tender could be accepted on the basis of some undisclosed criterion” (paras 46-47).

So, although Iacobucci J found an obligation to accept and award only to a compliant bidder, he found no obligation to award to the lowest compliant bidder (i.e. M.J.B.). This said, he held that although M.J.B. had no contractual right to be awarded the construction contract, its rights under the tender contract were still breached. Iacobucci J found that on the balance of probabilities the evidence suggested that, had the tender contract not been breached, M.J.B. would have been awarded the construction contract and, after concluding that they were not too remote, awarded expectation damages in respect of the lost contract (paras 55-60).

Nota Bene

Note 1: In obiter dicta Iacobucci J observed that the tender documents being considered in the case themselves illustrated the “rationale for the tendering process . . . to replace negotiation with competition” (para 41).

Note 2: The appellant argued that even if it had awarded Contract B to a non-compliant bidder, it had acted in a good faith belief that the bid was in fact compliant and so was not in breach of its duty to the other bidders. Iacobucci dismissed this out of hand, saying: “Acting in good faith or thinking that one has interpreted the contract correctly are not valid defences to an action for breach of contract” (para 54).

R. (Ont.) v Ron Engineering & Construction (Eastern) Ltd., [1979] 24 OR (2d) 332 (ONCA), revd [1981] 1 SCR 111, online: LexUM http://scc.lexum.umontreal.ca/en/1981/1981scr1-111/1981scr1-111.html

This case is understood to be the leading case on the law of bidding and tendering in Canada.

Facts

The province of Ontario (the “owner”) retained an engineering consulting firm to prepare an estimated budget for the construction of a new water and sewage treatment plant. The consultants returned a budget estimate of $2,744,700. The owner then issued a call for tenders for the construction of the plant. The tender documents required a tender deposit to be submitted with the bids, and included the following statement:

. . . the tenderer guarantees that if his tender is withdrawn before the Commission shall have considered the tenders or before or after he has been notified that his tender has been recommended to the Commission for acceptance . . . the Commission may retain the tender deposit for the use of the Commission and may accept any tender, advertise for new tenders, negotiate a contract or not accept any tender as the Commission may deem advisable.

Ron Engineering (the “contractor”), submitted a bid on time and with the required $150,000 deposit in the form of a certified cheque. An employee of the contractor was present for the opening of all the bids. At $2,748,000, the contractor came in over $600,000 lower than the next bidder. The employee immediately called the president of the contractor company about the possibility of a mistake in the bid. Before she could tell him about the tender opening, he told her that he found he had made a mistake in the bid. It was held as a fact at trial that there was nothing on the face of the bid which would indicate any error. At 4:12 pm, an hour after the submission deadline of 3:00 pm, the contractor sent a telex to the owner saying they had made a mistake of $750,058 in their submission, and that their total bid price should have been $3,498,058. The message went on to offer a submission of other documents to show the error and requested to withdraw from the bid process without being “penalized”.

After receiving this message from the contractor the owner went on to seek the contractor’s signature on the contract documents as provided for in the tender documents. The contractor refused to sign the contract document for the reason that it had mistakenly sent a tender bid at a price far lower than it actually intended. The owner then took the position that, per the tender documents, it was entitled to keep the tender deposit and awarded the contract to the second-lowest bidder.

The contractor sued for recovery of the deposit, and the owner counter-claimed for damages resulting from the contractor’s refusal to carry out the tender and at having to accept the next-lowest bidder.

Procedural history

The trial judge held that the owner was entitled to keep the deposit and dismissed the counter-claim. The Ontario Court of Appeal reversed the trial judgment and directed the owner to return the deposit. The Ontario Commission appealed to the Supreme Court.

Issues to be determined

Can a bidder rely on the contract doctrine of mistake to revoke a tender, notwithstanding any provisions in the tender documents to the contrary, as long as the bidder gives notice of the mistake to the owner prior to formal acceptance of the bid?

Holding

No.

Rule of law

A call for tenders is not an invitation to treat and a bid is not an offer. Rather, a call for tenders is an offer, and a properly submitted bid constitutes an acceptance of that offer resulting in a unilateral contract. The tendering process involves two contracts, not one. The second is the actual contract being competed for. The first is the bidding contract. Consideration for the bidder is the chance to compete for the second contract and the consideration for the owner is the promise that, if selected, the bidder will enter that contract on the terms provided in the documents. The terms of the bidding contract are also contained in the tender documents. If the terms stipulate it then the bidder’s acceptance of the owner’s offer is irrevocable. If no error is apparent “on the face of the tender” then the bidding contract forms when the bid is submitted.

Reasoning

Justice Estey delivered the unanimous judgment of the court (Justices Martland, Dickson, Estey, McIntyre and Lamer sat for the appeal).

Estey J. noted at the beginning of his reasons that the facts before the court did not concern either “a case where the mistake committed by the tendering contractor is apparent on the face of the tender” or a case of “impropriety” where a contractor was attempting to recall a “legitimate bid” after discovering that they were the low bidder by a wide margin. Instead, Estey J. said that “the mistake here is one which requires an explanation outside of the tender documents themselves” ([1981] 1 SCR 111, p 117).

The Ontario Court of Appeal had relied on its decision in Belle River Community Arena Inc. v W.J.C. Kaufmann Co. Ltd. (1978), 20 OR (2d) 447 in finding that the contractor could recover the bid deposit. In Belle River, a contractor had similarly wanted to withdraw its bid after finding a mistake in its pricing and argued that it could do so as long as there had been no formal acceptance of the bid by the owner. The tenderer was identified as the offeror, the owner as the offeree, and the Court of Appeal held that where the offeree was informed of the mistake – i.e. that the original offer was not the one intended by the offeror – then the offeree could not accept it. The Belle River facts were very close to the facts in Ron Engineering.

Estey J. disagreed with the Court of Appeal’s ‘mistake’ analysis. In his analysis, the respondent contractor’s tender did not constitute an offer. Instead, he found that the terms and conditions contained in the tender documents governing the submission of tenders caused a unilateral contract to be formed between owner and bidder on submission of a tender. This contract – the tender contact – is distinct from the actual construction contract for which the owner is soliciting bids. For convenience Estey J. labelled these contracts contract A and contract B (p 119).

Under this model, Estey J. stated: “[T]he principal term of contract A is the irrevocability of the bid, and the corollary term is the obligation of both parties to enter into a contract (contract B) upon the acceptance of the tender. Other terms include the qualified obligations of the owner to accept the lowest tender, and the degree of this obligation is controlled by the terms and conditions established in the call for tenders” (p 122-123). In the case at hand Estey J. found that there was no controversy about the form and procedure followed and that all the terms and conditions required by the call for tenders had been complied with, and thus that contract A had crystallized between the parties (p 122).

Once Estey J. made the core finding that a tender contract – contract A – existed between the parties, all that remained was to determine the terms and conditions of the contract and whether they had been properly observed. The terms and conditions in the tender at issue did in fact provide for recovery of the deposit under certain conditions, none of which were met by the respondent contractor, and so Estey J. found simply that, per the terms of the agreement, the owner was entitled to keep the deposit. Estey J. noted in passing that the purpose of the deposit “was clear and simple . . . . [It] was required in order to ensure the performance by the contractor-tenderer of its obligations under contract A.”

On the vexing issue of the doctrine of mistake as it might apply in the circumstances, Estey J. dispensed with it simply by saying that it did not affect the contract A analysis because the issue of mistake was not raised by the parties until after contract A had validly formed. He wrote that the mistake in question would certainly be pertinent to a consideration of whether “a shared animus contrahendi” existed for the purposes of the formation of a contract B. But, whether contract B could have formed was never actually at issue. Instead, “the rights of the parties [for the purposes of the matter at hand] fall to be decided [solely] by the tender arrangements” (p. 123).

This is not to say that the doctrine of mistake might not operate to prevent the formation of contract A in the right circumstances. On this Estey J. referred to the case of McMaster University v Wilchar Construction Ltd., [1971] 3 OR 801, where a tender was missing a page. The trial judge in Wilchar described the case as one where “the offeree, for its own advantage, snapped at the offeror’s offer well knowing that the offer was made by mistake.” On this, however, Estey J. wrote, again, that the issue was not so much one of mistake as of the failure to comply with the terms and conditions of the tender call (by submitting a proper set of documents) (p 124).

One issue that Estey J. declined to address at length was where, for example, a tender offer came in at a price so low as to be obviously made in error: “. . . as where the offeror intended to say $200 . . . but wrote $20 dollars by mistake.” He hinted, though, that “it may well be that such a form of tender could not be ‘snapped up’ by the owner” (p 125).

All said, a call for tenders like the one in Ron Engineering – sometimes called a “classic” tender call today because of continually evolving procurement models – involves two contracts, the first being a tender contract, or contract A. This contract according to its terms entails rights and obligations on the part of the parties under the same fundamental rules as any other contract. These terms will generally include irrevocability and the right to the formation of the contemplated construction contract on acceptance of the tender.

A final point of note is an often quoted statement made by Estey J. in his reasons for decision which sheds some light on the rationale for his insistence on strict enforcement of the terms of a call for tenders: “[The] integrity of the bidding system must be protected where under the law of contracts it is possible to do so” (p 121).

Nota Bene

It is critical to understand that Estey J.’s creation of the two-contract analysis in Ron Engineering does not represent an attempt to turn the law of contracts on its head. Instead, Estey J. simply applied the principles of contract law to the documents that passed between the parties to arrive at the conclusion that the parties had agreed to be bound by the terms of a process contract in anticipation of a construction contract. As a result, Estey J.’s two-contract model of bidding and tendering only applies to situations where the underlying documents and surrounding circumstances support the creation of a process contract.

Some contemporary procurement models, such as some Request-for-Proposal models, are not understood in law to be a call for tenders and thus are not subject to the application of the rule in Ron Engineering.

Construction law does not refer to any specific area of the law. Instead, it is a shorthand way of referring to many different areas of law as they apply to the special context of the construction industry. That is, construction law is not a discrete area of the law; it is an area of legal practice.

The core of construction law is the law of contracts. At present in Canada and in Newfoundland and Labrador the legal relationships between the main parties on any given construction project – the owner/developer, general contractor, subcontractors, suppliers, and engineers and architects – are governed very largely by the law of contracts. As such, the negotiation and conclusion of construction contracts is a key component of construction law practice.

Other areas of importance include:

• The law of bidding and tendering
• Bonding, insurance, guarantees and sureties
• Construction financing and procurement and delivery models
• Dispute resolution (mediation, arbitration and litigation) and dispute avoidance
• Builders’ or mechanics’ (construction) liens, and other security interests
• Real estate transactions
• Planning legislation and regulations
• Environmental law and regulations

As well as:

• Labour and employment law
• Occupational health and safety
• Business organizations and corporate law
• Administrative law (needed generally in dealing with regulatory and licensing bodies).

All said, a construction lawyer needs to be familiar with those areas of the law that are especially relevant to the construction industry. But a good construction lawyer is also characterized by their familiarity with the industry itself, the nature of construction business, and the needs of industry stakeholders – their clients.

Industrial activity in Newfoundland and Labrador has never been clearly focused in any one area. But the centre of gravity in recent years has definitely shifted away from the island and more in the direction of Labrador. Increased investments in mining exploration and development and the significant investments made in building the trans-Labrador highway are now to be joined by further development of the hydroelectric potential of the Churchill River.

This morning a $6.2 billion, 35-year deal was announced between Newfoundland and Labrador (Nalcor: http://www.nalcorenergy.com/) and the province of Nova Scotia (Emera: http://www.emera.com/) for the hydroelectric development of a portion of the Lower Churchill megaproject at Muskrat Falls in Labrador. Further details about the deal are forthcoming: http://www.cbc.ca/canada/newfoundland-labrador/story/2010/11/18/nl-muskrat-deal-1118.html.

According to the Nov 18 announcement the current projected delivery date is 2016.

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The legal rules of bidding and tendering in Canada consist primarily of judge-made law. In particular, the basic framework of bidding and tendering law in Canada was set out in a landmark Supreme Court decision in 1981 which fundamentally altered the common law of contracts as it had previously applied to analysis of tendered contracts.

That decision, R. v Ron Engineering, created the Contract A / Contract B framework which is at the core of Canadian bidding and tendering law. Following that decision owner/developers and bidders found themselves subject to a new set of rights and obligations when engaged with each other in formal bidding processes.

Because the decision represented a radical reformulation of the law, it predictably led to questions about its particular implications, the scope of the rights and obligations created under the scheme, and the extent to which it was actually binding on parties to a bidding process (that is, if you didn’t want to be bound by the new rules for some reason, was it possible to get around them?). To a significant extent this discussion is still ongoing, and the law of bidding and tendering in Canada continues to evolve as the courts are faced with novel situations, particular contractual provisions, and new arguments about why the rules should or should not apply in a particular way to a particular set of facts.

Since Ron Engineering, the Supreme Court of Canada has revisited the law of bidding and tendering five times in the past three decades, most recently in a decision issued this past February. In chronological order, these six decisions are:

R. (Ont.) v Ron Engineering & Construction (Eastern) Ltd., [1979] 24 OR (2d) 332 (ONCA), revd [1981] 1 SCR 111, online: LexUM http://scc.lexum.umontreal.ca/en/1981/1981scr1-111/1981scr1-111.html

M.J.B. Enterprises Ltd. v Defence Construction (1951) Ltd., [1994] 164 AR 399 (ABQB), affd [1997] 196 AR 124 (ABCA), revd [1999] 1 SCR 619, online: LexUM http://csc.lexum.umontreal.ca/en/1999/1999scr1-619/1999scr1-619.html

Martel Building Ltd. v Canada, [1997] 129 FTR 249 (FCTD), revd [1998] 163 DLR (4th) 504 (FCA), leave to appeal refused, 2000 SCC 60, [2000] 2 SCR 860, online: LexUM http://scc.lexum.umontreal.ca/en/2000/2000scc60/2000scc60.html

Naylor Group Inc. v Ellis-Don Construction Ltd., [1996] OJ No 3247, 31 CLR (2d) 195 (ON Gen Div), revd [1999] 119 OAC 182 (ONCA), vard 2001 SCC 58, [2001] 2 SCR 943, online: LexUM http://scc.lexum.umontreal.ca/en/2001/2001scc58/2001scc58.html

Double N Earthmovers Ltd. v Edmonton (City), 213 AR 81 (ABQB), affd [2005] AJ No 221 (ABCA), affd 2007 SCC 3, [2007] 1 SCR 116, online: LexUM http://scc.lexum.umontreal.ca/en/2007/2007scc3/2007scc3.html

Tercon Contractors Ltd. v British Columbia (Transportation and Highways), 2006 BCSC 499, revd 2007 BCCA 592, revd 2010 SCC 4, [2010] 1 SCR 69, online: LexUM http://scc.lexum.umontreal.ca/en/2010/2010scc4/2010scc4.html

The recent Tercon decision has sparked renewed debate in the legal community about the present state and the future of bidding and tendering law and bidding and tendering practices in Canada. The possible impact of the Tercon decision on procurement processes was a feature topic at the Canadian Bar Association’s National Construction Law Section annual conference. As well, provincial branches of the CBA have also been addressing the topic (the CBA New Brunswick Branch is including a session on developments in construction law in their upcoming Fall Conference).

Given that the rules of bidding and tendering are a current topic, I’ve decided that it might be useful (not least for myself) to prepare and publish briefs of the foregoing Supreme Court decisions. I’ll update this post with links to the briefs as I put them up.

Update:

• Ron Engineering
• M.J.B. Enterprises
• Martel
• Naylor
• Double N
• Tercon