As the effects of the global pandemic unfold, governments the world over are looking to procurement leaders to restructure supply chains that are agile and resilient as well as leverage technology to gain procurement efficiencies. This has led to increased positions and career opportunities for procurement professionals — thereby furthering the need for, and increasing […]
Integrated Project Delivery is a construction delivery methodology successfully in use for decades in the US and parts of Europe. It is currently gaining traction in Canada. what is integrated project delivery, or IPD? There are essentially four construction delivery method options a project team can choose from. These four include: design-build, design-bid-build, construction management […]
When a contract is not performed as promised, the other party may have the right to claim damages for breach of contract. The amount of liquidated damages payable will depend on the terms of the contract and, if the contract is unclear, then on what can be established as ‘reasonable and provable losses’ flowing from […]
As procurement professionals know, contractual discretion is a double-edged sword: it leaves you in the driver’s seat, but almost certainly will lead to challenges when that discretion is exercised to the detriment of the other party to the contract. While the Supreme Court of Canada’s decision in Bhasin v Hrynew laid out some organizing principles […]
Suppliers doing business with the public sector may be in for an unpleasant surprise when they learn that their information can be released to outside parties once it comes into the hands of government. What I’ve heard from my clients: “What? No way. That’s all company confidential information! They can’t release that!” As procurement professionals, […]
Criminal convictions resulted from contract awards for heating plant repairs over a four year period at the Shearwater military base, managed by the Department of National Defence (“DND”). A civilian employee and a contractor were convicted of fraud committed against the federal government, an offence under section 380(1) of the Criminal Code, after extensive internal […]
Are you facing supplier disruption and potential contract cancellation as a result of the recent pandemic announcement? Wondering if your organization has the right to cancel or terminate its own contract commitments related to upcoming events given the suggested restrictions on group gatherings? The first thing to understand is that there is no common law […]
In large recurring procurements, it is not uncommon for the same bidders to respond, and to have business dealings outside of the procurement process. Are there circumstances in which there is an implied contract between these bidders to treat each other fairly when responding to the procurement? Test your understanding of the convergence of contract […]
You may have encountered a situation where some defect in the evaluation process has been identified after closing and, rather than attempting to correct the issue, the procuring entity has simply let the bid validity period expire and then started the procurement process anew. Have you ever wondered if this is the most appropriate way […]
Expanded Impact of Trade Agreements Although they have been in place for two years, we are just beginning to see the impact of the new trade agreements in Canada. When the single point of access (“SPA”) mechanism is implemented by the Federal government then all bidders will be able to see all opportunities in Canada, […]
A recent decision of the Ont. Superior Court of Justice considers the respective obligations of an owner and bidders in a competitive dialogue process – the owner must act fairly and in accordance with the terms, and the bidder must comply with the requirements of the RFP that commences the process, regardless of whether Contract […]
Question: Our organization continues to hold public openings for construction tenders, but I’m wondering if this is still a best practice. What are your thoughts on this? Answer: Thanks for your question, this is a common one. In a recent informal poll of 20 public sector purchasing professionals, roughly 20% said their organization still open […]
What happens when the key employee running a procurement process sends information about an RFP, including the pricing of opponents’ bids, to the incumbent, and socializes with that incumbent before and during the procurement process? Can the employer fire this employee for cause, and therefore pay no damages? Test your understanding of the intersection of […]
Most public sector organizations outsource services, from catering and custodial to consulting expertise, but most share a common problem – a low level of internal client satisfaction. This is primarily due to the historical focus on getting the lowest cost rather than improving the overall service delivery. Traditional outsourcing RFPs are an inside-out view of […]
A recent decision of the Alberta Court of Queen’s Bench reinforces the importance of a clear delineation between mandatory and desirable requirements in a Request for Proposal. It also reviews the standard applied by the court during a Judicial Review, as well as the impact of specific discretion clauses in procurement. Background Aquatech operated water […]
My husband, the cook in our household, often speaks of the holy trinity of French cuisine – the mirepoix – a base of sautéed onions, celery, and carrots that form the foundation of many French recipes. In contracts, the trinity of risk allocation is the limitation of liability, indemnity, and insurance clauses. Together, this trinity […]
Legal Edge readers who have been following the recent court decisions in Mega Reporting Inc. v Yukon (Government of), 2018 YKCA 10 will know that the Yukon Court of Appeal dismissed a claim for damages filed by an unsuccessful proponent for court reporting services. The RFP incorporated a two-stage evaluation process under which proposals not […]
Hawboldt Industries v Department of Public Works and Government Services, CITT April 27, 2018 PR-2017-045 Background In June 2017, the Department of Public Works and Government Services (“DPWGS”) on behalf of the Department of National Defence (“DND”) issued a Request for Proposals for supplying 16 replacement electro-hydraulic marine cranes for the Royal Canadian Navy’s Halifax […]
Given that there is no perfect contract and that changing circumstance is inevitable, good contract management dictates that business professionals be actively involved in managing agreements after they are signed. The reality is that, once signed, contracts should not be simply filed and forgotten; but instead actively managed and administered from “cradle to grave”. When […]
Early in my career, I had many discussions with my former boss and mentor about client and file management. During one such discussion, I made a point of stating the obvious, “I know how important this client is to your business.” He quickly corrected me, saying: “No, to our business.” What is IPD? Integrated project […]
By Juli Smyth and Debby Shapero Propp Is your organization confronted with large complex projects and not sure which way to proceed to procure? Have you wanted to seek the expertise of the suppliers in the market and have an open discussion in an exploratory and transparent way? And is senior management at your organization […]
Each New Year is a time to reflect. In 2017 at least two changes occurred that affect supply chain practices. On July 1 the Canadian Free Trade Agreement (CFTA) and on September 21 the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) came into force. Both trade agreements have a significant impact on procurement in […]
Background In February 2014, the City of Toronto (“the City”) issued a Request for Quotations for diving services at its water treatment facilities (RFQ#1). ASI Group Ltd. (“ASI”) was the lowest compliant bidder at the public opening for RFQ#1, but the City elected to cancel that process and re-issued the RFQ in April 2014 for […]
By Gordon White, the conflictjourney.com Think of your BATNA (Best Alternative to Negotiated Agreement) as your plan B. If everything you try through working on a troubling relationship doesn’t bear fruit, where will you turn, what will you do? Your answer to these questions is your BATNA. Having a BATNA means thinking ahead, and it […]
By Lise Patry BA | Sc | LLB | ICD.D | NECI Instructor As part of our NECI courses we teach the importance of planning ahead, as all contracts inevitably come to an end one day. Well, as recently confirmed by the SCC, that may not always be true. The Supreme Court of Canada Confirms […]