An overview of the law of tendering and procurement and the preparation of tender documents (requests for tenders, bids, requests for proposals) along with a discussion about bid-shopping and bid-rigging.
An overview of the law of tendering and procurement and the preparation of tender documents (requests for tenders, bids, requests for proposals) along with a discussion about bid-shopping and bid-rigging.
Acceptance in Contract and its CommunicationPreeti Sikder
Learning Outcome: After completion of this lesson students will be able to -
a) define acceptance
b) understand and explain the methods of communication of acceptance
c) illustrate the legal provisions relating to communication and revocation of acceptance
This judgement takes one through the judgement of Kone Elevators in great detail. Various contentions, arguments and the final verdict of the court have been adequately covered in this judgement.
Creative Strategy: Implementation and EvaluationMike Weber
Advertising and Promotion: Belch;
Chapter 9 Creative Strategy: Implementation and Evaluation;
Advertising Appeal and Execution, Creative Tactics, Client Evaluation and Approval of Creative Work
Tender Process | A Complete Procurement GuideTender Process
All about Tenders and its Process | Here you will get all the information regarding tenders (Procurement) like what is tender, what is its process, types of tender, how to search tenders, what to do and what not to do in tendering, how to search tenders and more.... you can check our website for more details which is : http://tenderprocess.weebly.com/
Enhance your legal knowledge and receive an overview of the fundamentals of tendering & procurement law. Reviewing the common risks involved with the procurement & tendering processes, panelists will address mechanisms to avoid, reduce and control these challenges. This seminar will also discuss best practices for preparing and responding to request for tenders/requests for information and provide an update on recent case dealings.
Acceptance in Contract and its CommunicationPreeti Sikder
Learning Outcome: After completion of this lesson students will be able to -
a) define acceptance
b) understand and explain the methods of communication of acceptance
c) illustrate the legal provisions relating to communication and revocation of acceptance
This judgement takes one through the judgement of Kone Elevators in great detail. Various contentions, arguments and the final verdict of the court have been adequately covered in this judgement.
Creative Strategy: Implementation and EvaluationMike Weber
Advertising and Promotion: Belch;
Chapter 9 Creative Strategy: Implementation and Evaluation;
Advertising Appeal and Execution, Creative Tactics, Client Evaluation and Approval of Creative Work
Tender Process | A Complete Procurement GuideTender Process
All about Tenders and its Process | Here you will get all the information regarding tenders (Procurement) like what is tender, what is its process, types of tender, how to search tenders, what to do and what not to do in tendering, how to search tenders and more.... you can check our website for more details which is : http://tenderprocess.weebly.com/
Enhance your legal knowledge and receive an overview of the fundamentals of tendering & procurement law. Reviewing the common risks involved with the procurement & tendering processes, panelists will address mechanisms to avoid, reduce and control these challenges. This seminar will also discuss best practices for preparing and responding to request for tenders/requests for information and provide an update on recent case dealings.
Breakfast for the Mind: Issues with Procurement & TenderingNow Dentons
This presentation addresses all aspects of Procurement and Tendering, including: Basic Principles of Tender Law, RFP's and Tendering, Procurement Models, drafting effective RFP's, as well as issues relating to Public Procurement.
The spotlight for our first quarterly public sector breakfast club of 2017 is procurement. The last 12 months or so have seen some interesting developments in public procurement, although perhaps not as interesting as the next 24 months might see. In this seminar Peter Ware takes a retrospective look at what has happened over the last year or so and looks at what the world of procurement might look like in the longer term.
Foreign Workers, International Tax and Oil & Gas Market UpdateNow Dentons
In this presentation, FMC Partner Shawna Vogel and Associate Yasmeen Nizam team up with MNP Partner David Yager and Associate Kathy Bonazew to deliver information about foreign workers, international tax and oil & gas market updates. The following topics are discussed:
- We Need Foreign Workers Now
- New Developments in Permanent Residence Applications for Workers
- State of Canada’s Oil & Gas Industry and Future Employment Needs
- Taxation in Canada
In this presentation, FMC Partners Rob McDonald and Marlon Rajakaruna describe the importance of protecting your start-up company’s intellectual property (IP). The following topics are discussed:
- Types of Intellectual Property
- Patents
- Copyright
- Trade-marks
- Other Ways to Protect IP
- Protecting Your IP in Commercial Agreements
Privacy and Security in Mobile E-CommerceNow Dentons
In this presentation, FMC’s Timothy Banks describes the important issues to consider when thinking about privacy and security in mobile e-commerce. The presentation includes a discussion of the following topics:
- Outlines for M-Commerce
- Overview of Guidelines
- Special Issues (address book information, online behavioral tracking and analytics, geolocation data, children, and ongoing emerging issues)
- Transparency and Accountability in Design (consent, representations and disclaimers and applying Canada’s Anti-Spam Legislation)
- The three dimensions of M-Commerce
In this presentation, FMC’s Bernard Roth outlines the current trends in energy regulatory law. The presentation includes the following topics:
- Trends in Facilities Regulation
- Alberta Non-Utility Oil and Gas Facilities
- AER Structure
- Responsible Energy Development
- Federal Budget Legislative Changes
- Federal Fisheries Act
- Navigable Waters Protection Act
- Canadian Environmental Assessment Act
- Trends in Utilities Regulation
- Performance Based Regulation for Alberta Utilities
In this presentation, FMC’s Bill Gilliland and Dan Shea discuss deal points relating to survey of deals and deal terms, including:
• Survey
• Material Adverse Change
• Non-solicitation and Superior Proposals
• Regulatory Approval Language
• Break Fees
• Expense Reimbursement
• Go-Shop Provisions
In this presentation, FMC’s Doris Bonora and Mark Woltersdorf outline the important considerations when planning before death, including:
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- Farm Tax Planning
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Risk Apportionment in the Purchase and Sale TransactionNow Dentons
In this presentation, FMC’s Leanne Krawchuk discusses risk apportionment in the purchase and sale transaction, including:
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- Indemnity Clauses and Limitations
- Purchase Price Adjustments and Holdbacks/Escrow
- Maximize the Value Proposition
- Due Diligence
Letters of Intent - Tips and Traps for Commercial LawyersNow Dentons
In this presentation, FMC’s Heather Barnhouse discusses the purpose of a letter of intent (LOI) and the common issues with LOI. She then discusses a relevant case (IHAG – Holding A.G. c. Intrawest Corporation, 2009 QCCS 2699) and provides an overview of the lessons learned and future application.
Protect you Rights and Avoid Liability! Current Developments and Major Implic...Now Dentons
In this presentation, FMC's Margot Patterson discusses current developments and major implications for IP legal guidelines in advertising, including:
1. Changing Copyright Rules: User Generated Content
2. How Social Media is changing your marketing practices and how you protect your brand
3. Yours, Mine and Ours: Best practices for third-party content (partners & consumers)
In this presentation, FMC's Alan Hutchison discusses Preliminary Economic Assessments (PEAs) by going over the recent focus on PEAs, providing important considerations, and going through 4 different scenarios related to PEAs.
An Introduction to Legal Aspects of Customer Acquisitions for StartupsNow Dentons
In this presentation, FMC’s Gal Smolar discusses an introduction to the legal aspects of customer acquisitions for startups. The presentation focuses on customer acquisitions, acquisition contracts, trends, right to data, restrictive covenants, exclusivity, joint development and customer acquisition tips.
Gal Smolar is a partner in FMC’s Vancouver office. Gal is a Practitioner of Foreign Law and brings to Fraser Milner Casgrain his broad international experience in commercial and corporate law and in particular in the field of technology.
Update on Hydraulic Fracturing:Preparing for Gasland 2Now Dentons
In this presentation, FMC Law's Alex MacWilliam discusses hydraulic fracturing. The presentation covers the hydraulic fracturing process; the legislative and regulatory management of key issues related to hydraulic fracturing; liability issues in fracturing litigation; finally, lessons and trends related to hydraulic fracturing.
In this presentation, V. Peter Harder describes why Canada engages with China, while Rob McDonald and Margot Patterson outline the changes to copyright laws in Canada.
In this presentation, Rob McDonald and Stephen Parker discuss the following topics related to intellectual property:
- IP Due Diligence in Commercial Transactions
- Common IP Disputes that Arise in Business
- The New Copyright Modernization Act
In this presentation, Rob McDonald outlines the key amendments to the Copyright Act and explains how Canada's copyright laws will change with the new Copyright Modernization Act.
Improving profitability for small businessBen Wann
In this comprehensive presentation, we will explore strategies and practical tips for enhancing profitability in small businesses. Tailored to meet the unique challenges faced by small enterprises, this session covers various aspects that directly impact the bottom line. Attendees will learn how to optimize operational efficiency, manage expenses, and increase revenue through innovative marketing and customer engagement techniques.
LA HUG - Video Testimonials with Chynna Morgan - June 2024Lital Barkan
Have you ever heard that user-generated content or video testimonials can take your brand to the next level? We will explore how you can effectively use video testimonials to leverage and boost your sales, content strategy, and increase your CRM data.🤯
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3.0 Project 2_ Developing My Brand Identity Kit.pptxtanyjahb
A personal brand exploration presentation summarizes an individual's unique qualities and goals, covering strengths, values, passions, and target audience. It helps individuals understand what makes them stand out, their desired image, and how they aim to achieve it.
Premium MEAN Stack Development Solutions for Modern BusinessesSynapseIndia
Stay ahead of the curve with our premium MEAN Stack Development Solutions. Our expert developers utilize MongoDB, Express.js, AngularJS, and Node.js to create modern and responsive web applications. Trust us for cutting-edge solutions that drive your business growth and success.
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[Note: This is a partial preview. To download this presentation, visit:
https://www.oeconsulting.com.sg/training-presentations]
Sustainability has become an increasingly critical topic as the world recognizes the need to protect our planet and its resources for future generations. Sustainability means meeting our current needs without compromising the ability of future generations to meet theirs. It involves long-term planning and consideration of the consequences of our actions. The goal is to create strategies that ensure the long-term viability of People, Planet, and Profit.
Leading companies such as Nike, Toyota, and Siemens are prioritizing sustainable innovation in their business models, setting an example for others to follow. In this Sustainability training presentation, you will learn key concepts, principles, and practices of sustainability applicable across industries. This training aims to create awareness and educate employees, senior executives, consultants, and other key stakeholders, including investors, policymakers, and supply chain partners, on the importance and implementation of sustainability.
LEARNING OBJECTIVES
1. Develop a comprehensive understanding of the fundamental principles and concepts that form the foundation of sustainability within corporate environments.
2. Explore the sustainability implementation model, focusing on effective measures and reporting strategies to track and communicate sustainability efforts.
3. Identify and define best practices and critical success factors essential for achieving sustainability goals within organizations.
CONTENTS
1. Introduction and Key Concepts of Sustainability
2. Principles and Practices of Sustainability
3. Measures and Reporting in Sustainability
4. Sustainability Implementation & Best Practices
To download the complete presentation, visit: https://www.oeconsulting.com.sg/training-presentations
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The world of search engine optimization (SEO) is buzzing with discussions after Google confirmed that around 2,500 leaked internal documents related to its Search feature are indeed authentic. The revelation has sparked significant concerns within the SEO community. The leaked documents were initially reported by SEO experts Rand Fishkin and Mike King, igniting widespread analysis and discourse. For More Info:- https://news.arihantwebtech.com/search-disrupted-googles-leaked-documents-rock-the-seo-world/
Attending a job Interview for B1 and B2 Englsih learnersErika906060
It is a sample of an interview for a business english class for pre-intermediate and intermediate english students with emphasis on the speking ability.
Enterprise Excellence is Inclusive Excellence.pdfKaiNexus
Enterprise excellence and inclusive excellence are closely linked, and real-world challenges have shown that both are essential to the success of any organization. To achieve enterprise excellence, organizations must focus on improving their operations and processes while creating an inclusive environment that engages everyone. In this interactive session, the facilitator will highlight commonly established business practices and how they limit our ability to engage everyone every day. More importantly, though, participants will likely gain increased awareness of what we can do differently to maximize enterprise excellence through deliberate inclusion.
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Enterprise Excellence is a holistic approach that's aimed at achieving world-class performance across all aspects of the organization.
What might I learn?
A way to engage all in creating Inclusive Excellence. Lessons from the US military and their parallels to the story of Harry Potter. How belt systems and CI teams can destroy inclusive practices. How leadership language invites people to the party. There are three things leaders can do to engage everyone every day: maximizing psychological safety to create environments where folks learn, contribute, and challenge the status quo.
Who might benefit? Anyone and everyone leading folks from the shop floor to top floor.
Dr. William Harvey is a seasoned Operations Leader with extensive experience in chemical processing, manufacturing, and operations management. At Michelman, he currently oversees multiple sites, leading teams in strategic planning and coaching/practicing continuous improvement. William is set to start his eighth year of teaching at the University of Cincinnati where he teaches marketing, finance, and management. William holds various certifications in change management, quality, leadership, operational excellence, team building, and DiSC, among others.
Tata Group Dials Taiwan for Its Chipmaking Ambition in Gujarat’s DholeraAvirahi City Dholera
The Tata Group, a titan of Indian industry, is making waves with its advanced talks with Taiwanese chipmakers Powerchip Semiconductor Manufacturing Corporation (PSMC) and UMC Group. The goal? Establishing a cutting-edge semiconductor fabrication unit (fab) in Dholera, Gujarat. This isn’t just any project; it’s a potential game changer for India’s chipmaking aspirations and a boon for investors seeking promising residential projects in dholera sir.
Visit : https://www.avirahi.com/blog/tata-group-dials-taiwan-for-its-chipmaking-ambition-in-gujarats-dholera/
RMD24 | Debunking the non-endemic revenue myth Marvin Vacquier Droop | First ...BBPMedia1
Marvin neemt je in deze presentatie mee in de voordelen van non-endemic advertising op retail media netwerken. Hij brengt ook de uitdagingen in beeld die de markt op dit moment heeft op het gebied van retail media voor niet-leveranciers.
Retail media wordt gezien als het nieuwe advertising-medium en ook mediabureaus richten massaal retail media-afdelingen op. Merken die niet in de betreffende winkel liggen staan ook nog niet in de rij om op de retail media netwerken te adverteren. Marvin belicht de uitdagingen die er zijn om echt aansluiting te vinden op die markt van non-endemic advertising.
"𝑩𝑬𝑮𝑼𝑵 𝑾𝑰𝑻𝑯 𝑻𝑱 𝑰𝑺 𝑯𝑨𝑳𝑭 𝑫𝑶𝑵𝑬"
𝐓𝐉 𝐂𝐨𝐦𝐬 (𝐓𝐉 𝐂𝐨𝐦𝐦𝐮𝐧𝐢𝐜𝐚𝐭𝐢𝐨𝐧𝐬) is a professional event agency that includes experts in the event-organizing market in Vietnam, Korea, and ASEAN countries. We provide unlimited types of events from Music concerts, Fan meetings, and Culture festivals to Corporate events, Internal company events, Golf tournaments, MICE events, and Exhibitions.
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Putting the SPARK into Virtual Training.pptxCynthia Clay
This 60-minute webinar, sponsored by Adobe, was delivered for the Training Mag Network. It explored the five elements of SPARK: Storytelling, Purpose, Action, Relationships, and Kudos. Knowing how to tell a well-structured story is key to building long-term memory. Stating a clear purpose that doesn't take away from the discovery learning process is critical. Ensuring that people move from theory to practical application is imperative. Creating strong social learning is the key to commitment and engagement. Validating and affirming participants' comments is the way to create a positive learning environment.
3. LAW OF TENDER
A. Overview
1. R. v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 S.C.R. 111.
• Case introduced the Contract A/Contract B analysis.
• Contract A is formed immediately upon a bidder submitting a bid in
response to an invitation to tender.
• Contract B is formed between the owner and the winning bidder and is the
actual construction contract.
3
4. Law of Tender (cont.)
2. M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619.
• Central issue was whether the inclusion of a privilege clause in the tender
documents allows the person calling for tenders to disregard the lowest bid in
favour of any other tender including a non‐complaint one.
• Court clarified that Contract A can only be formed between an owner and
compliant bids, meaning an owner can only accept compliant bids:
• The rationale for the tendering process…is to replace negotiation with competition.
This competition entails certain risks for the [contractor]. The [contractor] must
expend effort and incur expense in preparing its tender in accordance with strict
specifications and may nonetheless not be awarded Contract B…it appears obvious to
me that exposing oneself to such risks makes little sense if the [owner] is allowed, in
effect to circumscribe this process and accept a non‐compliant bid. Therefore I find it
reasonable, on the basis of the presumed intentions of the parties, to find an implied
term that only a compliant bid would be accepted.
4
5. Law of Tender (cont.)
• The tender call is the owner's offer to receive and consider tenders according
to the terms and conditions of the tender call.
• The submission of a compliant tender is the act of acceptance of the owner's
offer.
• The court will apply a test of "substantial" compliance so that technical
deficiencies which would not operate to undermine the integrity of the
tendering process have been held not to invalidate a tender.
5
6. Law of Tender (cont.)
• It is not the law that the owner can only accept the lowest compliant bid —
there is no incompatibility between the privilege clause and the prohibition
on accepting non‐compliant tenders.
• An owner is entitled to take a "nuanced" view of price. Examples of
economic factors an owner is entitled to take into account in rejecting the
lowest tender include:
• Additional contract administration costs anticipated as a result of the tenderer's
previous performance on other projects.
• Tenderer's lack of actual direct experience in performance of the work.
• Potential for cost increases or claims.
• Application of alternative unit pricing.
• Anticipated cost overruns due to past incidents of inadequate site supervision and
construction errors.
6
7. Law of Tender (cont.)
3. Martel Building Ltd. v. R., [2000] 2 S.C.R. 860.
• There is a duty to treat all compliant bidders fairly and
equally in accordance with the terms and conditions of the
tender call:
• In light of the costs and effort associated with preparing and
submitting a bid, we find it difficult to believe that the
[contractor] would have submitted a bid unless it was
understood by those involved that all bidders would be treated
fairly and equally … 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.
7
8. Law of Tender (cont.)
• Prohibited activities include:
• Application of undisclosed preferences.
• Application of undisclosed bid evaluation criteria.
• Bid shopping.
• Giving one bidder an unfair competitive advantage over others.
• At the same time, the Court reinforced that owners have the right
to reserve privileges to themselves:
• …the tender documents must be examined closely to determine the full
extent of the obligation of fair and equal treatment. In order to respect the
parties' intentions and reasonable expectations, such a duty must be defined
with due consideration to the express contractual terms of the tender.
8
9. Law of Tender (cont.)
4. Double N Earthmovers Ltd. v Edmonton (City), [2007] 1 S.C.R.
116
• Court clarified the obligations on an owner in assessing
whether a bid is compliant.
• The duty of fairness requires an owner to evaluate tenders
"on the basis of what is actually in the bid, not to weigh them
on the basis of subsequently discovered information".
• Imposing a post‐tender investigative duty on the owner
"would encourage un warranted and unfair attacks by rival
bidders and invite unequal treatment of bidders by owners.
This would frustrate, rather than enhance, the integrity of the
bidding process."
9
10. Law of Tender (cont.)
• In other words, an owners obligations under Contract A to
unsuccessful bidders, including the obligation to treat bidders fairly,
do not survive the creation of Contract B.
• The significance of the decision is two fold.
• Owners and successful bidders can amend Contract B to account for
changed circumstances following the tender call without fear of lawsuits
from disgruntled bidders.
• So long as the tender documents provide, the owner can negotiate with
the lowest bidder prior to contract award.
10
11. Law of Tender (cont.)
B. Summary of the Law of Tender
• Both owners and bidders have obligations.
• An owner must follow the terms and conditions of the tender
documents, can only accept compliant bids and must act fairly
and equally towards all bidders.
• A bidder cannot revoke its bid once tenders close (unless
permitted by the tender terms and conditions).
• An owner can draft criteria for contract award and insert privilege
clauses and reserve to itself the right to accept other than the
lowest bid, or to not make any award at all — but there is a limit
and clauses which purport to eliminate the duty of fairness and
render the tender selection process arbitrary will be qualified by
the duty to treat all bidders fairly.
11
12. Law of Tender (cont.)
• Two Percolating Issues
• Tender v. RFP
• Exclusion Clauses
12
14. Facts
• RFEI issued by Province of British Columbia re: design and construction of highway
– Six respondents provided EOIs, including Tercon and Brentwood – concern with
Brentwood’s lack of drilling/blasting experience
– Province then decided to design the highway itself and to bid out construction work only
to RFEI respondents
• RFP therefore issued, expressly limited to the six initial RFEI respondents only: “Proposals
received from any other party will not be considered”.
– Exclusion Clause in RFP: “Except as expressly and specifically permitted in these
Instructions to Proponents, no Proponent shall have any claim for any 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.”
14
15. Facts (cont.)
– Brentwood entered into pre‐bidding joint venture agreement with larger construction
company, EAC (not an eligible Proponent)
– Brentwood formally informed the Province of existence of joint venture prior to
submitting its bid. Both agreed that the joint venture was likely an ineligible bidder. The
Province therefore told Brentwood to submit the RFP in its name only, which
Brentwood did, listing EAC as a major subcontractor.
• Brentwood and Tercon were the two short‐listed RFP Proponents and Brentwood
was ultimately chosen for the highway construction project
• Tercon sued, alleging that (1) in breach of Contract A, the Province had accepted an
ineligible bidder (i.e. the Brentwood/EAC joint venture), and that (2) the Exclusion
Clause did not save the Province from this kind of fundamental breach.
15
16. Lower Courts
• BC Supreme Court: found in favour of Tercon and awarded $3.5M in damages for Tercon’s
loss of the construction contract
• Held that:
– (1) The RFP was sufficiently formal and imposed a sufficient level of obligation
on bidders to create Contract A.
– (2) The Province had breached both the express provisions of Contact A and its
implied obligations of good faith, fairness and equal treatment of all bidders by
awarding the project to an ineligible bidder.
– (3) This constituted a fundamental breach of Contract A – neither fair nor
reasonable to uphold Exclusion in such circumstances.
16
18. Supreme Court of Canada
• Whole Court:
– The time has come to “lay to rest” the doctrine of fundamental breach
– Courts will no longer refuse to enforce an exclusion clause simply
because the defendant’s breach “went to the very root of the
contract” or “denied the plaintiff of substantially the whole of the
benefit of the contract”
18
19. Supreme Court of Canada (cont.)
• Majority (5 judges): agreed with the BC Supreme Court; overturned Court
of Appeal
• Held that:
– (1) Brentwood’s accepted bid was made on behalf of ineligible joint
venture, (2) the joint venture materially improved Brentwood’s bid,
and (3) the Province knew this and so intentionally attempted to
conceal the winning proponent’s true identity – Clear breach of
express and implied terms of Contract A
19
20. Supreme Court of Canada ( Majority
cont.)
– The exclusion clause barring Proponent claims resulting from “participating in this RFP”
did not bar Tercon’s claim:
• RFP process premised on closed list of six bidders
• Contest involving ineligible bidder therefore fell outside of that process
• A process involving other bidders…is not the process called for by ‘this RFP’ and
being part of that other process is not in any meaningful sense ‘participating in this
RFP’.” (para. 74)
• “Tercon’s claim is not barred by the exclusion clause because the clause only applies
to claims arising ‘as a result of participating in [the] RFP’, not to claims resulting from
the participation of other, ineligible parties.” (para. 63)
20
22. Supreme Court of Canada (Majority cont.)
• An early return of the doctrine of fundamental breach? Majority’s
rationale for not upholding the exclusion clause:
– Restricted eligibility of bidders was “the foundation of this RFP” – Court
should interpret the exclusion clause compatibly with eligibility limitations
which were “at the very root of the RFP”. (para. 70)
– Parties would not have intended exclusion to “effectively gut” a key aspect of
approved RFP process (para. 72) or waive compensation for conduct that
“strikes at the heart of the integrity and business efficacy of the tendering
process”. (para. 78)
– Limiting bidders to the six RFEI respondents “was the foundation of the whole
RFP”, and acceptance of an ineligible bid “attacks the underlying premise of
the process”, such that “[l]iability for such an attack is not excluded by a clause
limiting compensation resulting from participation in this RFP.” (para. 76)
• CONCLUSION: Exclusion clause held not to cover the breach; Tercon’s claim for
damages successful
22
24. Supreme Court of Canada (Dissent cont.)
– 3‐step inquiry when party seeks to escape a contractual exclusion clause:
• 1. As a matter of interpretation, does the exclusion clause even apply to the
circumstances of the case?
• 2. If yes, was the exclusion clause unconscionable at the time the contract was
made? (relates to contract formation, not breach)
• 3. If the clause was valid when it was made, should the Court nevertheless refuse to
enforce it because of some overriding public policy that outweighs the very strong
public interest in the enforcement of contracts?
– Burden of proof on the party seeking to avoid exclusion
– Examples of public policy exceptions: fraud, conduct approaching criminality
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25. Supreme Court of Canada (Dissent cont.)
• 3‐step approach applied by dissent:
• 1. Does the exclusion apply? Yes.
– Exclusion clear and unambiguous
– “Participating in this RFP” = more than Province’s final selection of an ineligible
bid; begins with submitting a Proposal and having it considered
– Tercon clearly “participated in this RFP” and fell within plain wording of the
exclusion.
– The Province “was at fault in its performance of the RFP, but the conclusion that
the process thereby ceased to be the RFP process appears to me…to be a
strained and artificial interpretation [of the exclusion] in order, indirectly and
obliquely, to avoid the impact of what seems…ex post facto to have been an
unfair and unreasonable clause.” (para. 128)
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26. Supreme Court of Canada (Dissent cont.)
• 2. Was the exclusion unconscionable when made? No.
– No unequal bargaining power
– Tercon a major contractor with experience entering into tender contracts “and
is well able to look after itself”.
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27. Supreme Court of Canada (Dissent cont.)
• 3. Are there public policy reasons not to enforce the exclusion? No.
– Tercon failed to prove that Province’s actions were “so aberrant as to forfeit the
protection of the contractual exclusion clause on the basis of some overriding
public policy.” (para. 135)
– No reason to deprive Province of “the protection of the clear exclusion clause
freely agreed to by Tercon.” (para. 140)
– If Tercon did not think it was in its business interest to bid on project based on
RFP exclusion, it was free to decline to participate. “So long as contractors are
willing to bid on such terms, I do not think it is the court’s job to rescue them
from the consequences of their decision to do so.” (para. 141)
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29. Pros and Cons of Tenders and RFPs
• Pros of Tenders • Pros of RFPs
– Drives to lowest cost delivery – Scope does not need to be set
method – Flexibility to receive suggestions
– Irrevocable price from proponents
– If selected bidder refuses to enter – No duty of fairness on part of
into Contract B, owner can sue Owner
for damages (i.e. differential to
next selected or lowest bidder)
• Cons of RFPs
• Cons of Tenders – Proponent can pull out at any
– Most practical where scope if time ~ price is revocable
defined – Does not focus the selection on
– Owner has a duty of fairness the lowest cost delivery method
– Owner must comply with the – Owner still may have duties
rules of engagement and can face
significant exposure for failing to
do so
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30. Considerations for Decision Making
Tender Consideration RFP
Typically Is the work or are the services clearly specified? Does not
matter
Yes Are the final results and deliverables clearly defined? Does not
matter
Yes Is more weight placed on price than other values? No
Yes Is price irrevocability important to the owner? No
No Does owner want input on design ,execution, alternative methods or Yes
innovations?
Yes Is there mandatory detailed evaluation criteria? Not
typically
Yes Does owner want a specific form of contract? No
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31. What makes an RFP a Tender?
• Indicia of tenders:
– Irrevocability of submission
– Security required with submission
– Revisions required to be in writing, executed and received before the
closing
– Detailed evaluation criteria specified and the limited criteria being the
only criteria used to evaluate the bids
– Detailed pricing provisions that are fixed and non‐negotiable
– Contract B to be substantially in the form attached to the package
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32. Effect of an Exclusion Clause
• Justice Cromwell also determines that:
– the existence of an exclusion clause is in itself an indicia of a tender
because an exclusion clause would not be necessary for an RFP
– it is not fatal that the “classic” approach was not followed:
• Classic: Contract A – Contract B framework in which bidder submits an
irrevocable bid and undertakes to enter into Contract B on those terms if
its bid is accepted
• Tercon variation: Contract B to follow good faith negotiations based on the
form set out in the tender documents
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33. Avoiding the Tender Conundrum
• Steps to take to keep your RFP out of the world of tender:
– State that the process is not a tender process
– Scope of work may allow for input by proponents – specifications need
not necessarily followed by proponent – alternate methods welcomed
– Use subjective evaluation criteria without significant detail or process
~ do not evaluate on price
– Allow for proposals to be revoked
• There will be no need for:
– bid security
– an exclusion clause
– Consider whether attaching contractual terms is necessary
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35. The Exclusion Clause
• "The Exclusion Clause reads:
– 2.10 …Except as expressly and specifically permitted in these
instructions to Proponents, no Proponent shall have any 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."
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36. The Basic Principles Applying to
Exclusion Clauses
• Exclusion clauses that are drafted to address the claim being advanced will be
respected and applied if they are clear and comprehensive such that the wording of
the clause is found to apply to the circumstances established in the evidence.
• An exclusion clause, however, will be construed strictly to determine whether it
applies to the circumstances of the claim.
• Clear language which addresses the precise circumstances of the claim is necessary
to exclude liability.
• To determine if an exclusion clause is applicable, the exclusion clauses must not be
read in isolation but should be considered in harmony with the rest of the contract
and in light of its purposes and commercial context.
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37. The Majority's Analysis on the
Application of the Exclusion Clause
• The majority found that the exclusion clause did not apply to the
circumstances of the Tercon's claim. It did so because:
– In looking at the other provisions of the RFP, the Court found that the Province
reserved its right to unilaterally cancel the RFP and propose a new RFP to
additional bidders and did not reserve to itself the right to accept a bid from
an ineligible bidder or to unilaterally change the rules of eligibility;
– The Court found that the integrity and business efficacy of the tendering
process supported an interpretation that would allow the exclusion clause to
operate compatibly with the eligibility limitations that were at the very root of
the RFP;
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38. The Majority's Analysis on the
Application of the Exclusion Clause (cont.)
– The implied duty of fairness which is a basic requirement of the tendering
process, particularly in the case of public procurement was not explicitly
excluded by the wording of the clause;
– The Court found that even though the application of the exclusion clause was
restricted, it still had application and could be given effect in the proper
circumstances. The Court pointed out that the exclusion clause would apply if
the remedy claimed was not for compensation, although the Court noted that
practically speaking it could not envision a practical claim arising from a breach
of contract "A" other than a claim for compensation; and
– The exclusion clause would have application in respect of a claim that arose as
between the invited Proponents to the RFP.
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39. The Majority's Conclusion
• The Court found that it was central to the RFP process issued by the Province that it
was a contest among those eligible to participate which did not include Proponents
who did not initially submit a response to the RFEI and specifically indicated that
Proposals received from any other party would not be considered.
• The Court found that the Proposal submitted by Brentwood was a joint venture
with the result that it was submitted by another party that had not submitted an
RFEI.
• As the Province was now considering an ineligible party's bid, the bidding process
was no longer the "RFE Process" referred to in the exclusion clause but a different
process.
• The result found was that the exclusion clause did not apply to this different RFE
Process.
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40. The Minorities' View
• There is nothing inherently unreasonable about exclusion clauses and they should
be applied unless there is some compelling reason not to give effect to the words
selected by the parties.
• It is a matter of interpretation whether the exclusion clause applies to the
circumstances established in the evidence which will depend on the Court's
assessment of the intention of the parties expressed in the contract.
• Participation in the RFP began with submitting a Proposal. As Tercon had
submitted a Proposal, the exclusion clause applied with the result that Tercon "shall
be deemed to have agreed that it has no claim".
• The minority found that the exclusion clause applied to exclude Tercon's claim.
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41. What do we take from this?
• The application of an exclusion clause in any given circumstance depends
upon the view of the beholder.
• That view is tainted by whether or not the beholder thinks in the
circumstances of the case it is fair or not to deny the claimant
compensation.
• It is extremely difficult, if not impossible, to draft an exclusion clause that is
guaranteed to be effective in responding to all possible claims that could
arise as it is impossible to predict the manner and nature of all possible
claims that may arise in advance.
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43. Is the revised Exclusion Clause
bullet proof?
• As Bennie J. states in the Tercon decision, it will depend on whether a
Court is prepared to take a "strained and artificial interpretation in order,
indirectly and obliquely, to avoid the impact of what seems to it ex post
facto to have been an unfair and unreasonable clause";
• The facts and circumstances giving rise to the claim; and
• There is an absence of fraud or equally evil wrongdoing on the part of the
party relying on the exclusion clause.
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