LEXPERT MAGAZINE
|
APRIL 2016 41
| INFRASTRUCTURE |
though the language may be different, the
general principles are the same."
NEW TRADE AGREEMENTS
In the last few years, and especially in re-
cent months, trade treaties have become
increasingly important to infrastructure
procurement in Canada. It recently ne-
gotiated the Comprehensive Economic
and Trade Agreement (CETA) with the
European Union and the Trans-Pacific
nership Trade Agreement (NWPTA)
formed in 2010 among British Columbia,
Alberta and Saskatchewan as Canada's
largest inter-provincial free trade zone.
As of the summer of 2015, the NWPTA
adopted a new bid protest mechanism on
public procurement.
Under the previous mechanism, an ag-
grieved bidder had to persuade its own
government to pursue a remedy against the
sponsoring government. e new process
allows a bidder to make a complaint direct-
ly against the sponsoring government. "It's
no longer up to the bidder's government
how far and how quickly the complaint is
pursued," says Karen Martin, a partner at
Dentons Canada LLP in Vancouver.
"We have definitely seen a significant
increase in the last few years of global play-
ers participating in the large infrastructure
procurements in Canada," says Martin.
"It's an interesting question as to whether
that's happening because of the trade agree-
ments [or vice versa]. I suspect they're very
much related. If you're a procurement law-
yer who acts on the bidding side, it definite-
ly means more clients for you."
Infrastructure lawyers, however, will
have to work more closely with trade law-
yers, says Wilson. "ere's a much more
integrated, team approach that has to hap-
pen now because trade rules, as they set
procurement rules, begin to influence how
you dra procurement documents."
RECENT CASE LAW
Foreign proponents face a uniquely Ca-
nadian system — a common-law regime
different from other jurisdictions. In most
procurements, the owner has implied con-
tractual obligations to the bidders.
e Supreme Court of Canada has ruled
that when an owner issues a tender docu-
ment or an RFP, even before the bids are
opened, the owner has a "Contract A" with
each bidder, promising to conduct the pro-
cess, and make its selection, based on the
tender or RFP. e owner has an implied
duty to be fair to all bidders. (In the law
of tender, the contract between the owner
and each bidder relating to the terms of
the tender is known as "Contract A" and
the contract for the actual construction is
known as "Contract B.")
Since the SCC's 1981 ruling in R. (Ont.)
v. Ron Engineering and Construction (East-
ern) Ltd., what that duty of fairness actu-
ally means has been litigated in thousands
of cases. A losing bidder will look carefully
at how the owner conducted itself to see if
there was a breach of Contract A.
More recently, the SCC issued a ruling
that applied to commercial contracts gen-
erally but with relevance to procurement.
Its 2014 decision in Bhasin v. Hrynew held
that every commercial contract carries an
implied duty on the parties to act in good
YVAN HOULE
BORDEN LADNER
GERVAIS LLP
"The Caisse is saying they
have substantial experience
in investing in similar projects
throughout the world. They're
leveraging that experience
and they're quite confident they
can run these projects efficiently
as a designer, builder and operator
rather than just as an investor."
Partnership (TPP) with the Pacific Rim.
It already adhered to the North American
Free Trade Agreement (NAFTA) and the
World Trade Organization (WTO) Agree-
ment on Government Procurement.
"e trade agreements all mimic one an-
other in how they regulate procurement,"
says Judy Wilson, a partner at Blake, Cas-
sels & Graydon LLP in Toronto. "If you're
an organization that has good competitive
procurement processes, which most Cana-
dian public-sector organizations do, it's not
going to affect fundamentally how you do
your business."
Says Wilson: "It's going to affect you
from a trade perspective, e.g., can you give
extra points for local content? And if you
can, how does it work and what sectors are
excluded? But it's not going to affect the
fundamentals of your procurement — a
fair, open, transparent process. Frankly, if
you're compliant with the Agreement on
Internal Trade (AIT) in how you do your
procurement, the odds are you're going to
be compliant across the board."
Less prominent is the New West Part-
