Introduction
The purpose of this paper is to make some observations from the
perspective of a project lawyer on the Canadian law of tender as it
has developed over the past 30 years since the Supreme Court of
Canada's seminal decision in R. v. Ron Engineering &
Construction (Eastern) Ltd. ("Ron
Engineering").1
It has been suggested that "[t]he law of bidding and
tendering is a juxtaposition of the principles of fairness and
transparency in the tender process and the freedom of parties to
contract upon terms that they negotiate or agree
upon."2 This view imputes to the tender process a
fairness requirement that is generally not found in the law of
contract in Canada. This fairness requirement is seemingly defined
by reference to an idealized vision of tendering that apparently
exists beyond the four corners of a set of tender documents. Some
proponents of this view also advocate for an ancillary requirement
of "transparency" in the common law of tender,
