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ARTICLE · 18 MAY 2020

Mandatory Tender Conditions: A Promise To Comply Is Enough

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The owner also has an implied obligation to treat all bids fairly and equally, and only accept a compliant bid.

CanadaLitigation, Mediation & Arbitration
Brian P. Reid
Brian P. Reid
David Wahl
David Wahl
Stephanie Gagne
Stephanie Gagne
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The Alberta Court of Appeal recently confirmed in Aquatech Canadian Water Services Inc v Alberta (Minister of Environment and Parks), 2020 ABCA 153 that for a bid to be valid, a tenderer does not need to meet all mandatory conditions of a tender, provided that the tenderer commits to meeting them by the time the work is to be performed.

Legal Framework

The legal framework governing tendering is set out in the landmark decision of the Supreme Court of Canada in The Queen in Right of Ontario v Ron Engineering & Construction (Eastern) Ltd, [1981] 1 SCR 111 [Ron Engineering]. When an owner issues a tender, it makes two offers: (i) to consider the bids it receives; and (ii) to enter into a contract to complete the project when a bid is accepted. A bidder accepts the first offer by submitting a bid that complies with the requirements in the tender documents, forming Contract A. Once a bid is accepted, the owner and the successful tenderer enter into Contract B for

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