The Court of Appeal in Ontario starts its decision in Rankin Construction Inc. v. Ontario, 2014 ONCA 636 (CanLII) by commenting that the law of tenders is complex. In the decision, the court comments that it was difficult to resolve a dispute about whether non-compliance with bidding instructions was a mere formality or something more. The court considered whether there was any breach by the owner of the tendering process created by its tendering documents. The court also considered whether an investigation into a rival bidder's allegation of non-compliance is permissible – a past case had found it was not required. The lowest bidder, whose bid was rejected, argued that the owner should not have investigated a rival bidder's allegation of non-compliance.
It is no wonder that those in the construction industry and owners of property can find the tendering process and tender disputes to be difficult to understand and resolve given even the Court of Appeal finds this area of law complex and disputes difficult to determine.
Diligent owners may be relieved to see in this decision that the Court of Appeal found that the owner, in being cautious to investigate allegations of non-compliance, was both reasonable and understandable. To read more about this interesting decision, see More Clarity on the "Complex Law of Tenders"?
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