Is an owner entitled to look behind a bid submitted in response to an invitation to tender and determine whether it is compliant with the terms of the invitation to tender, even though on its face the bid is compliant? And if the owner does so, and determines that the bid is non-compliant, can the […]
Continue Reading →Can An Owner Look Behind A Bid And Find It Non-Compliant?
Posted by: Construction Law Canada
Supreme Court Denies Leave In Tender Case – Refuses To Re-Write History
Posted by: Construction Law Canada
The Supreme Court of Canada has recently refused leave to appeal in Trevor Nicholas Construction Co. Ltd. v. Canada. In doing so, it has upheld the decisions of the Federal Court Trial Division and Federal Court of Appeal which declined to permit a bidder to rely on after-the-fact information to overturn an invitation to tender. […]
Continue Reading →Is The Owner Liable For Delaying The Commencement Of The Building Project?
Posted by: Construction Law Canada
Time is money on a building project. And the obligation of the owner and the contractor to proceed expeditiously with the project may be one of the most important aspects of their relationship. But what if the owner delays in notifying the contractor of the award, or in signing the building contract? Can the owner […]
Continue Reading →Incorporation By Reference In Building Contracts
Posted by: Construction Law Canada
Incorporation by reference in building contracts By Thomas G. Heintzman and Julie Parla1 A common clause in a building contract is one which incorporates the terms of another contract or document into the building contract in issue. The effect of such a clause is referred to as “Incorporation by Reference”. These clauses are common in […]
Continue Reading →Tercon Contractors? The Latest Chapter
Posted by: Construction Law Canada
The 2010 decision of the Supreme Court of Canada in Tercon Contractors Ltd v. British Columbia (Transportation and Highways) is one of the most important recent Canadian decisions relating to contract law. It has particular importance to building contracts. Those interested in construction law are watching to see how Tercon will be applied in subsequent […]
Continue Reading →Can A Contractor Use Its Own Mistakes To Withdraw Its Bid?
Posted by: Construction Law Canada
A contractors’ worst nightmare is making a mistake in a tender and being stuck with a low bid. The next worse nightmare is submitting a winning bid but one which contains errors which arguably make the bid non-compliant. What happens when both occur? Can the contractor get out of its low bid by its own […]
Continue Reading →Does A Tender Give Rise To Liability For Negligent Misrepresentation Or Bad Faith?
Posted by: Construction Law Canada
Can an informal tender process which is not part of a bid depository system give rise to liability for negligent misrepresentation? Can it give rise to liability for bad faith conduct? In Oz Optics Limited v. Timbercom, Inc., the Ontario Court of Appeal recently answered Yes to the first question, and after agonizing over […]
Continue Reading →When and How is a Subcontractor Bound by its Tender in a Bid Depository System?
Posted by: Construction Law Canada
The process by which subcontractors’ tenders are accepted in a bid depository is fundamental to the efficacy of that system. If that process does not effectively bind the subcontractors, then the subcontractors will be able to unilaterally withdraw their bids later. The British Columbia Supreme Court addressed this issue in its recent decision in Civil […]
Continue Reading →An Owner Owes No Duty Of Care To A Subcontractor In A Bid Depository System
Posted by: Construction Law Canada
The Newfoundland and Labrador Court of Appeal has recently held that an owner does not owe a duty of care to a subcontractor arising from the normal operation of a bid depository system: Defence Construction (1951) Limited v. Air-Tite Sheet Metal Limited. The Background: The owner, Defence Construction, a wholly owned subsidiary of the government […]
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