1 Robert B Pattinson, “Overview of the Law of Bidding and Tendering” (2004) 83:3 R du B can 715 at 716.
2 Pattinson, supra note 1 at 717.
3 Ibid.
4 Ibid at 722.
5 Note that not all procurement processes are for construction services. For example, an owner may want to procure a design engineer to act as their consultant. However, for simplicity, this article refers to Contract B as a Construction Contract.
6 Pattinson, supra note 1 at 723.
7 John Haythorne and Mollie Deyong, “Fairness and Transparency in Large Project Public Procurement” (2019) Dentons Canada LLP at 5.
8 Ibid.
9 Ibid at 6.
10 True Construction Ltd v Kamloops (City), 2016 BCCA 173.
11 Maglio Installations Ltd v Castlegar (City), 2018 BCCA 80 at para 22 [Maglio].
12 Vachon Construction Ltd v Cariboo (Regional District), [1996] BCJ No 1409 at para 10, 136 DLR (4th) 307 (BCCA) [Vachon].
13 Vachon, supra note 12 at para 10; Maglio, supra note 11 at para 53.
14 In Vachon, the successful bid for a construction contract to build a grandstand facility had incorrectly stated the price. The price expressed in words was $4000 higher than the price expressed in numerals. Upon opening the bids publicly and realizing the error, the owner asked for clarification from the bidder. The Court concluded that the bid was invalid and incapable of being accepted because it was uncertain as to price, and that contract price is always a fundamental term of a construction contract.
MG Logging & Sons v British Columbia, 2015 BCCA 526 applied Vachon and also suggested that uncertainty as to the identity of the bidder renders a bid materially defective. MG Logging & Sons was originally identified as the successful bidder for a timber licence auctioned by the Ministry, but the bid mistakenly provided the registration number for a different company. After determining the bid was not objectively compliant on its face, the Court held that no rights had crystallized and the Ministry was under no obligation to take steps to confirm the proper identity of the applicant.
15 Murray Purcha & Son Ltd v Barriere (District), 2019 BCCA 4 at paras 46-50.
16 Vachon, supra note 12 at para 34.
17 Stanco Projects Ltd v British Columbia (Ministry of Water, Land and Air Protection), 2006 BCCA 246.
18 Tercon Contractors Ltd v British Columbia (Transportation and Highways), 2010 SCC 4 at para 71 [Tercon].
19 See Petrelli v Lindell Beach Holiday Resort Ltd, 2010 BCSC 956 at paras 60-65 and Winbridge Construction Ltd v Halifax Regional Water Commission, 2015 NSSC 275 at para 86.
20 Health Care Developers Inc v Newfoundland, 128 Nfld & PEIR 181, 1994 CanLII 10509 (NLSC); Khoury Real Estate Services Ltd v Canada (Minister of Public Works), (1996) 33 CLR (2d) 294, 1996 CanLII 3871 (FC); Tercon, supra note 18.