b'no choice but to go to the next bidderAs a result, there has been a reductionbidder who responds by submitting and pay a higher price, or to retender,in the number of bidders on certaina bid, explains Lisa Stiver, partner at wasting valuable time. public projects. Thompson Dorfman Sweatman LLP. [Some public owners are] callingTheres less interest in the workThe law of Contract A has developed a for contractors to engage, but thenbecause bidders dont trust the process,set of rules and precedents as to what theyre saying, Were not going toor theres contingency dollars put in,happens if the terms of Contract A are adhere to the rules that have beensays Harrison. breached (i.e., the rules that are in place established, explains Harrison. Its theto facilitate an open, fair and transparent same approach that weve been criticalACROSS CANADA competitive bidding process), so it of because it opens the door to bidThe British Columbia Constructioncreates a degree of certainty between shopping and gaming. Association (BCCA) is seeing similarthe parties as to the rules of the changes, going so far as to issueprocurement process. If one of the According to Harrison, bid gaming refersa province-wide alert following theparties breaches its duties under the to tactics used by certain contractorsremoval of Contract A from theterms of Contract A, the other party may to manipulate the bidding process toprocurement process by a growing list ofsue them for damages, which is money their advantage, rather than presentingpublic owners.to compensate them for what this breach genuinely competitive proposals.has cost them. Traditionally, if it is the Bid shopping allows for concurrentIn its advisory to members, BCCAowner, they would potentially recover interviews and negotiations within ancalls the removal of Contract A thethe difference between what that RFP process, with the issuer effectivelymost significant violation of publicbidders price was and what the owner shopping for cheaper offers to reducesector procurement processes that thethen had to pay for the second-lowest project costs. construction industry has seen to date.price to complete the work. Conversely, They can choose three top firms andIt adds that with the removal of Contractif it is the owner who breaches the terms negotiate concurrently. So, how muchA, combined with other poor or erodingof Contract A, the unsuccessful bidder trust do you have in the process?procurement practices, the constructionmay potentially recover its lost profits on says Harrison, adding that some publicindustry can no longer assume theythat work.procurement processes include a Bestare participating in fair, transparent andTraditionally, a tender offer was seen and Final Offer (BFO) option after thecompetitive procurement. as a request for contractors to submit negotiation phase, which cements theTHE LAW bids, but it was not considered a binding lack of faith in the process. Under Canadian contract law, Contractcontract. This changed with the case of While public authorities have theA outlines terms such as deadlines,R v. Ron Engineering, introduced in 1981 right to determine the procurementevaluation criteria, privilege clauses andby the Supreme Court of Canada. The methodology and whether or not theyoften requires bid security. Its purposedecision outlines a fair way of buying include Contract A in the process, WCAis to safeguard the expectations andconstruction services and discourages says that the trend to remove it frominterests of all parties involved in theadversarial relationships among tender the RFP has negative implications.procurement process. process participants. Harrison says construction companies inContract A provides a remedy forThe reason that Ron Engineering Manitoba are reporting that some publica breach of contract under the lawis such a pivotal case is because RFP processes are cumbersome, timebecause it establishes privity ofit established a contractual right consuming and lack the transparencycontract between the owner/issuer ofbetween parties that previously were that is expected in public procurement.the procurement document and thenot considered to have entered into a contract, Stiver says. Accordingly, that provides a remedy for breach of contract under the law, and with that come certain rights and remedies that were not available to either party prior to 1981. Pre-Ron Engineering, there was no certainty in the process, no set of rules such that if one party breached them, they would understand the risk of what they may face if challenged. Post-Ron Engineering, all of that changed.Hambley encourages all bidders to seek legal advice and advise the association YOUR MECHANICAL & of any irregularities they discover in the ELECTRICAL ENGINEERING, public procurement process.HIGH VOLTAGE & ENERGY Its our aim to enhance the procurement CONSULTANTS outcomes for both parties and pave the way for a more efficient, transparent and www.mcw.com equitable RFP process. 34 BUILD MANITOBAwinnipegconstruction.ca'