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BIDDING PROCESS - Invitation to tender or bid - Tender contract - Discretion not to award

Tuesday, March 27, 2018 @ 8:42 AM  

Lexis Advance® Quicklaw®
Appeal by the City of Castlegar from a judgment made in the plaintiff’s favour in a breach of contract action. The dispute concerned the City’s invitation to tender bids for a construction project. The tender documents required the successful bidder to submit a preliminary construction schedule (PCS), which the successful bidder did not do. The plaintiff’s bid had been fully compliant. The judge found that the City breached a contract with the plaintiff in accepting the materially non-compliant bid. At issue on appeal was whether the judge erred in finding the absence of a PCS to be material. The City submitted that a PCS was not material due to the project’s timing being uncertain on the tender closing date and that the PCS’s function was not as important as other commitments bidders made in the tender documents.

HELD: Appeal dismissed. The judge did not err in finding the PCS requirement to be material. The court’s role was not to re-weigh the evidence the judge considered and reach a different conclusion when there was no palpable and overriding error. Courts had to apply a stringent analysis to issues about the tendering process to preserve certainty and ensure fairness to compliant bidders. The need to adhere to this analytical framework, combined with a deferential standard of review, lead to the conclusion that the judge made no reversible error.

Maglio Installations Ltd. v. Castlegar (City), [2018] B.C.J. No. 390, British Columbia Court of Appeal, S.D. Frankel, H. Groberman and N.J. Garson JJ.A., March 8, 2018. Digest No. TLD-March262018004