Lexpert Special Editions

ying nder, tside ment iders uring this tive. RFP give nizaently gram s of ts by has , but ffice w "a ." In cing nute ho is take ner's st of der's n be ork." ulate oad, a PROCUREMENT |23 general exclusion clauses, but Kortbeek says Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) has come to stand for the principle that such exclusions can be so broad as to be unenforceable. The BC Ministry of Transportation and Highways conducted a pre-qualification process and subsequently specified in its tender that only pre-qualified companies would be eligible to bid. The ministry also wrote an exclusion clause that said "no Proponent shall have and claim for compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a Proposal each Proponent shall be deemed to have agreed that it has no claim." Tercon and Brentwood were among those pre-qualified, but in its bid documents Brentwood included a partner company that did not participate in pre-qualification. Brentwood was awarded the contract and Tercon sued on the basis of an ineligible bid. The SCC ruled that Brentwood's partner was not a true participant in pre-qualification. The Court found that the ministry had breached its own eligibility clause, as well as its duty of fairness. Loath to put a fence around the right to freely contract, the Court ruled that the exclusion clause was at odds with the eligibility clause in the same tender document and that the language of the exclusion was too vague to outweigh the implied duty of fairness at the heart of the tendering process. s s r s, s on a "FAILING TO FILE A SINGLE DOCUMENT CAN GET YOU KICKED OUT. IT'S SOMETHING THAT MANY COMPANIES ARE NOT FAMILIAR WITH [AND] THE FORMALITY OF THE PROCESS IS A RUDE WAKE-UP CALL." Brian Burton is a writer on energy and legal matters based in Calgary. Lexpert®Ranked Lawyers Lennox, David M. Leroux, Pierre-Denis Lever, David A.N. Lewis, Gregory D. Ludwig, Harry J. Lyons, Catherine A. Bennett Jones LLP (403) 298-3124 lennoxd@ bennettjones.com Blake, Cassels & Graydon LLP (514) 982-4121 pierredenis.leroux@ blakes.com McCarthy Tétrault LLP (416) 601-7655 dlever@mccarthy.ca Bull, Housser & Tupper LLP (604) 641-4923 gdl@bht.com Norton Rose Fulbright Canada LLP (403) 267-8235 harry.ludwig@ nortonrosefulbright.com Goodmans LLP (416) 597-4183 clyons@goodmans.ca al e Wilson says conflicting tender clauses are one of the three big mistakes she sees in tendering. The first she calls "Frankenstein's Monster," where cutting and pasting of favourite clauses into contracts creates an unenforceable morass. Another she calls "hoisted on your own petard," in which project owners try to be too precise and all-encompassing and end up creating unreasonable compliance standards that force them to rule out desirable bidders. The third and most frequent mistake is attempting to write a clause that says the project owner is free to accept or reject any bid "when there's a whole body of law that says otherwise." A new and emerging area of peril is that of governance of regulated entities, in which creatures of government, such as public utilities, are ruled by the statutes of their creation. These statutes provide another avenue of attack for disgruntled bidders and limited case law means "we really don't know how it's going to go," Wilson says. She says she advises clients to always bear in mind that "if a procurement goes really badly and it's on the front page of the [newspaper], it's going to be articulated in the terms of corruption or poor management." Far better, she says, to head off trouble with a solid tender process. Mr. Lennox's financial services practice includes project financing, syndicated credit facilities, public and private debt issues, trans-border deals and equipment financing. His clients include borrowers, banks, airlines and oil and gas concerns. ROB-Infrastructure.indd 23 Mr. Leroux advises consortium and work providers on infrastructure and P3s in his real property and financial services practice. His main focus is on mortgage and real estate financing, including securitization and property development. Mr. Lever leads the firm's Power and Infrastructure Groups. He focuses on PPPs, project and corporate finance, and M&A relating to energy and infrastructure projects. He acts for developers, investors and lenders on projects in Canada and the US. Mr. Lewis, who leads the firm's Infrastructure Group, focuses on commercial transactions and financings in infrastructure, energy and other industry sectors. His experience includes PPPs as well as hydro and co-generation projects. Mr. Ludwig focuses on technology, communications and IP. He advises on P3s, infrastructure, project finance, construction, telecommunications, Internet and e-commerce, outsourcing, privacy, marketing, and information and oil & gas technology. Ms. Lyons counsels private- and public-sector clients in municipal and environmental law. Her brownfield and greenfield redevelopment experience includes cost-sharing agreements as well as infrastructure financing and environmental approvals. 13-08-06 10:16 AM

• Cover