From preparation of tender document to the award of a contract there are a number of activities performed by owners, consultants & contractors. All of these activities have legal implications. This seminar will address such implications & define the...
- Course Outline
After participating in this course, you will be able to:Description
• Prequalify contractors with the understanding that you gain from the seminar of the prequalifying criteria and its implications
• Differentiate between contract prices and subcontract prices and develop the right practice to deal with the latter
• Apply the knowledge of what happens if the tender is not awarded to the lowest bidder
• Use in your tendering practice the learning from the seminar about what happens if there are allegations that a bid is non-compliant
• Recognize the liability of the owner for mistakes of a tendering contractor which are induced by a negligent misrepresentation or omission on the part of the owner in the tender package
• Improve your tendering practice with the knowledge of the liability of the consultant to the owner and to the contractor arising out of the tendering process
• Develop a checklist to ensure that all requirements for a tender are complete
As a method of procurement, tendering is hazardous. Errors in accepting or evaluating bids can have expensive consequences, either in lost business opportunity, or in legal liability. The law of tenders is complicated and constantly changing as the courts and the construction industry grapple with the evolving business climate.
In spite of all the care and caution involved in preparation of bid packages, problems have arisen many times in accepting a bid and awarding a contract. From preparation of tender document to the award of a contract there are a number of activities performed by owners, consultants and contractors. All of these activities have legal implications. This seminar will address such implications and define the legal rights and obligations of each participant in the process.Objective
To provide a forum where owners, consultants and contractors can understand legal implications of tendering from each others’ perspective for the general benefit of the construction industry.Who Should Attend
Officers of construction firms and officials of government agencies responsible for the tender calls, negotiation or awarding of contracts: facilities executives, building code advisors, plant managers, chief engineers, project managers, architects, engineers, technologists and technicians and lawyers.
Special FeaturesProgram Outline
This seminar is unique. One case study threads through all presentations and many other examples are used to illustrate the topics.
Instructor: Michael MacKay, Barrister & Solicitor
Registration and Coffee
Welcome, Introduction, Workshop Preview, Learning Outcomes and the Assessment Methods
Introduction to the Program
• What is tendering?
• Why tender?
• The economic rationale
• The political rationale
• Presentation of case study
• A real life situation of where bidders allege that other bids are non-compliant and that the owner is potentially liable for evaluating bids unfairly
Introduction to the Law of Tenders
• The legal rules governing the tendering process
• Statutes, regulations, by-laws and policy
• The common law – contracts
• The traditional law of tendering
The Contractor’s Obligations to the Owner
• The Ron Engineering revolution – the Supreme Court makes the rules
• The limits of Ron Engineering
- RFPs and other forms of procurement versus tenders
- Owners’ representations
- Contractors’ defences to owners’ claims
The Owner’s Obligations to the Contractor – Unintended Consequences
• The logical implication of the Ron Engineering decision, and what it means for owners.
• The Supreme Court makes some new rules:
- M.J.B. Enterprises v. Defence Construction – non-compliant bids
- Martel Buildings v. Canada – fairness in bid evaluation
- Double N Earthmovers v. Edmonton – extent of owners’ obligations when evaluating bids
• The Supreme Court makes a safety net: Tercon v British Columbia – exclusion of liability for owner’s breach of the tendering process
Before the Bids are Opened – Practical Issues in Calling for Tenders
• Preparation of tender documents
• Bid depository
• Time of bid submission
• Bid withdrawal
• Compliant bids – the minimum requirements
• The problem of the single bidder
Once the Bids are Opened
• How to evaluate bids without running afoul of the law
• Bid evaluation – what are the rules?
- Implications of not awarding to a low qualified bidder
- What happens if no tender is awarded?
- What happens if all bids are over budget?
• What constitutes compliance – substantial versus perfect and the owners’ right to waive imperfect compliance
- Incomplete tenders
- Failure to nominate subcontractors
- Unbalanced tenders
The Consultant’s Obligations in Bid Evaluation
• To the contractor
• To the owner
• Use of subcontract prices and implied acceptance, subcontractors’ rights and duties – the Supreme Court’s decision in R. v. Design Services
• Local preferences
• Use of fax and email
• Bid shopping
• Liability for errors in tender documents
• Bid disclosure – freedom of information legislation
Best Practices - A Checklist
• Checklists for owners and contractors will be discussed and developed for the participants to carry with them.
Questions and Answers and Feedback to Participants on Achievement of Learning Outcomes
Concluding Remarks and Final Adjournment
There will be a one-hour lunch break in addition to refreshment and networking breaks during the morning and afternoon. Lunch and refreshments will be provided.
8:00 Registration and Coffee
8:30 Session begins
- Prerequisites & Certificates
0.6 CEU / 6 PDH
- Cancellation Policy
To withdraw from a course, you must send a request, in writing, with the official receipt to our office. Fifteen or more business days in advance: full refund less $50.00 administration charge. Five to fifteen business days in advance: non-refundable credit of equal value for any future EPIC seminar within one year. Credits are transferable within your organization. In case of an unexpected event occurring after this time, you may send someone else to take your place without any additional cost.
- Map & Reviews
EPIC Educational Program Innovations Center
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