b'BENCHMARKSBIDDER BEWARE: Important legal considerations for responding to competitive procurementsBy John Martens and Andrew Konopelny, MLT Aikins LLPWith the summer construction seasonthe process is binding or not can bequestions to the owner that can be just around the corner, projectassessed by looking at the procurementreviewed and potentially addressed by procurements are now in full swing. documents and the parties intentions.addenda. This should be done as early as Its important for all construction industryConsiderations include whether bidspossible to avoid late requests and late-participantsowners, contractors are irrevocable, require bid security andissued addenda. This leads to theand subcontractorsto rememberthe wording of any privilege clausesnext point:crucial requirements for a providing discretion to the owner.3. HAVE ALL QUESTIONS AND successful procurement.If the process is a binding one,ADDENDA BEEN ADDRESSED?Below are some key considerations,the owners options to select aMost procurement processes provide particularly for responding to anon-compliant or deficient bid, or toan opportunity to ask the procuring competitive procurement:request clarification or revisions, mayentity questions and clarifications. These 1. IS THE PROCUREMENT PROCESSbe limited. Therefore, its importantquestions are often the subject of formal for contractors to fill out the bid formresponses by issuing an addenda to BINDING OR NON-BINDING? completely and exactly in accordancerevise the procurement termsProcurement processes can be bindingwith the instructions provided.or requirements.or non-binding. In a binding processUltimately, the law of tendering seeks (often called a formal tender or ato create obligations that lead to a fairSignificant changes, both technical and Contract A/Contract B scenario), theprocess for all participants. This leads tocontractual, may be issued by addenda. owner is bound to select the bid thatour next key point: Owners often require bidders to scores highest against the evaluationacknowledge receipt of all addenda andcriteria. Such bids are often assessed2. HAS THE BID FORM BEENlist them in their bid form/proposal. on the lowest price. The alternativeCOMPLETED CORRECTLY? To prepare a competitive and accurate is a non-binding process often calledIt may seem simple, but the number ofresponse to a procurement, bidders a Request for Proposal (RFP). Abid forms that are not prepared correctlymust carefully review and consider all non-binding process usually has a wideris significant. The ambiguity created byaddenda and challenge how any previous range of considerations and may involvean improperly completed form can be negotiations with a preferred proponentavoided by reviewing the instructions toassumptions may be changed bybefore the parties execute a bidders, as well as double- and triple- these addenda.binding contract.checking the form. Missed details contained in addenda Binding processes are generally mostOptions to rectify a non-compliantcan lead to a bid being deemed effective when the scope is well defined,bid in a binding process are quitenon-compliant or disqualified, or make the pool of bidders have comparablelimited. The owner can be faced withthe bid uncompetitive or unprofitable. qualifications and price is intendedthe difficult decision of disqualifying aAny attempt by a contractor to later claim to be the main determining factor.non-compliant, preferable bid, versuscost or time for changes based on missed Non-binding processes are well suitedthe risk of other compliant biddersaddenda is usually unsuccessful. to projects with less defined design orlaunching legal proceedings in the event4. HAS THE FORM OF PROPOSED flexible scopes or, alternatively, whenof an award to a non-compliant bidder. factors other than price are also keyCONTRACT BEEN CONSIDERED?considerations for owners. To avoid potential disqualification, aMany procurement processes reference bid form should be reviewed closelythe form of contract that the owner Its important to note that thefor requirements and then completedproposes to use. It may include the terminology used to refer to aprecisely in the requested form. Wheredraft contractparticularly if an owners procurement such as a tender orthe requirements of the procurementtemplate is used or if there are significant RFP does not determine if the processdocument and/or the bid form conflictsupplementary conditions to standard is binding or non-binding. Whetheror are unclear, bidders should raiseindustry templates.24 BUILD MANITOBAwinnipegconstruction.ca'