Procurement Law Basics - Is There A Free-Standing Duty Of Fairness?

In part 1, part 2 and part 3 of this procurement law basics series, we looked at the conceptual basis for procurement law in Canada – the contract A-contract B analysis and some of the terms that the courts have implied into contract A. Most recently, we looked at the implied term to act fairly and not to give any one bidder an unfair advantage over the others.  

This blog post looks at what happens if contract A does not come into existence – is there still a duty of fairness?  

Tender cases

In straightforward tender cases the courts have been clear in holding that there is no free-standing duty of fairness outside contract A. So, in Midwest Management v. BC Gas Utility Ltd., all the tenders were non-compliant and therefore no contract A came into existence with any bidder. The owner chose to negotiate with only one bidder. The BC Court of Appeal held that this decision could not be challenged by the other bidders. In Hub Excavating v. Orca Estates, the