Affirming An Owner's Right To Rely On A Privilege Clause: Surespan Construction Ltd. v. Saskatchewan

In the recent decision of Surespan Construction Ltd. v. Saskatchewan, 2017 SKQB 55, the Saskatchewan Court of Queen's Bench dismissed a summary judgment application brought by the Plaintiff, Surespan Construction Ltd., against the Saskatchewan Ministry of Highways and Transportation for failing to award it a construction contract after it submitted a bid in response to an invitation for tenders issued by the Ministry. In dismissing the Plaintiff's claim, Justice Ball highlighted and affirmed some of the key principles regarding the law of tendering in Canada.

In May of 2011, the Ministry put out an invitation for tenders for the supply, fabrication, delivery and erection of structural steel for a bridge to be located across the South Saskatchewan River near St. Louis, Saskatchewan. The tender call contained two special provisions, one of which required the contractor to hold a prescribed welding certification. The tender call also contained a privilege clause which