Are "reprisal" clauses in municipal procurement
policies or tender documents unconstitutional, or contrary to
public policy? That was precisely the question before the BC
Supreme Court in its recent judgment in J. Cote & Son
Excavating Ltd. v City of Burnaby, 2018 BCSC 1491.
In general, reprisal clauses allow a municipality from excluding
contractors from bidding on procurement projects, if the contractor
is, or has been engaged in legal proceedings against the
municipality. In many cases, such clauses are included within a
given municipality's procurement policy.
The Plaintiff, a construction and excavation contractor,
securing most of its work by way of competitive bidding for
municipal construction contracts, sought the Court to declare that
a reprisal clause, which was included by the municipality in its
Invitation to Tender, was of no force and effect, as it
unjustifiably infringed upon the constitutionally protected rule of
law; its right of reasonable access
