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