LAW

• The February 2003 British Columbia Court of Appeal decision in Elite Bailiff Services Ltd. v. British Columbia involved a tender call for court services. The decision recognized that the purchaser was under a duty to disclose its evaluation criteria categories and weightings. While this duty has previously been applied by the Canadian International Trade Tribunal under federal trade treaties, its application as an implied common law duty outside of the federal public sector is a significant development.
  
• The February 2003 determination of the Canadian International Trade Tribunal in Re Complaint Filed by Huron Consulting involved a Department of National Defence tender call for computer software training services. The Tribunal held that the purchaser breached its Agreement on Internal Trade obligations by providing suppliers with an insufficient time to submit a bid when it issued a tender call amendment one business day prior to the tender submission deadline.
  
• The March 2003 decision of the Alberta Court of Queen's Bench in Banister Pipeline Construction Co. v. TransCanada Pipelines Ltd. involved a claim against the owner of a natural gas pipeline by a pipeline construction and maintenance contractor. The owner induced the contractor to offer it a $500,000 discount by providing assurances that the project would proceed on a timely basis and allow the contractor to save time and money in mobilization costs. When it made those representations the owner was actually anticipating project delays due to labour disruptions. The Court held that the plaintiff bidder was entitled to $500,000 in damages on account of the misrepresentation.
  
• The July 2003 determination of the Canadian International Trade Tribunal in Re Complaint Filed by Prudential Relocation Canada Ltd. involved a Royal Canadian Mounted Police tender call for relocation services. The Tribunal held that the purchaser had failed to disclose evaluation criteria requiring compatibility with the government's existing technology platform and had therefore improperly applied that undisclosed criteria in its evaluation process.
  
• The July 2003 decision of the Ontario Superior Court of Justice in Amertek Inc. v. Canadian Commercial Corp. involved a contract assigned to a supplier by a federal Crown corporation. This decision shows how the disclosure duty can be applied outside of the tendering process to direct contract negotiations. The Court found that the Crown corporation misrepresented the money losing deal as a money maker. The Court found that the money losing project left the supplier in "financial tatters" and awarded over $70 million in damages.
  
• The December 2003 decision of the New Brunswick Court of Queen's Bench in Goodfellow's Trucking Ltd. v. New Brunswick involved a construction project on a four-lane highway. When it issued the tender call the New Brunswick Department of Transport was aware of poor soil conditions that could adversely impact the project and increase the contractor's costs. It failed to disclose those conditions. The Court rejected the Department of Transport's assertion that it was following an established policy when it failed to disclose the information, finding that this did not eliminate its duty of care in the circumstances or trump its duty to act fairly and in good faith. The Court awarded the plaintiff contractor $150,000 in damages and legal costs.