Legal Blog

Tender

Reaction Distributing Inc. v. Algonquin Highlands (Township) 2019 Ont CA

City disqualified the contractor’s tender because of non-compliance with a contract requirement that all tenders be submitted in a sealed envelope that had been marked, on the outside, with the tenderer’s name and return address. The contractor had submitted its tender in a three-ring binder contained in a box and the box did not have a name and address on its outside. The City had the power to waive the non-compliance, but did not do so and awarded the contract to the only other tenderer. The trial judge found that the City’s disqualification constituted a breach of tender contract A and awarded the contractor its lost profit of $71,000. The Court of Appeal agreed with the trial judge that substantial compliance was the test to be applied in considering tender requirements; it noted that the trial judge’s finding, that the City’s disqualification resulted in the contractor not being treated fairly, was a finding of fact that would not be interfered with without palpable and overriding errors, which were not present in this case.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.