Case Commentary - Owner Cannot Rely Upon Undisclosed Criteria in the Bidding Process

The Ontario Superior Court has again confirmed that an owner invoking a competitive tender process cannot rely upon undisclosed criteria in the awarding of a contract. In this case, the plaintiff and other general contractors had been invited to bid on the construction of a drug store. The owner had accepted a higher bid than that of the plaintiff and negotiated with the higher bidder to reach a price which was still marginally more than the plaintiff ’s bid. The plaintiff sued, claiming a breach of the bidding process. At trial, the representative of the owner admitted that they wanted a local contractor which was unionized and which who had done work for them in the past. These criteria had influenced their decision. Counsel for the plaintiff was able to convince the Court that the entire bidding process was essentially used by the owner to test and negotiate the price