b'PRESIDENTS MESSAGEWHAT IS HAPPENINGTO CONTRACT A?I n my capacity as an associationIn Canadian contract law, Contract president, I get asked a great manyA ensures fairness, openness and technical questions. Ironically, in mytransparency between the owner and capacity as an association president,each compliant bidder and the BCCA alert I am also arguably the least qualified towarned GCs and trade contractors that answer. For that reason, I make clear whenthey should not assume they would be a member calls that I am not qualifiedtreated fairly in the absence of Contract A. to provide expert advice. I can and doMore importantly, their legal recourse for however share information that members/ being treated unfairly would beexperts choose to share in the hope that itgreatly diminished.helps point you in the right direction. In my humble opinion, owners have a duty Today, I would like to talk about a vitallyof fairness towards compliant bidders important court decision dating back toand they break the covenant of trust and 1981, namely R v Ron Engineering andaccountability when they look to opt out Construction (Eastern) Ltd. As most ofof Contract A. At an absolute minimum, you know, the Ron Engineering case dealtbidders need to evaluate the risk with the issue of whether the acceptanceassociated with a procurement process of a call for tenders on a construction jobthat removes Contract A and seek legal would constitute a binding contract. Andadvice before submitting their tender.the tendering practice in Canada wasIn Ontario, I am aware of several public fundamentally changed that day when theowners that are indeed asking bidders to Supreme Court ruled that the submissionforego the tendering recourse rights they of an offer in response to a call forwould be entitled to with the inclusion tenders did indeed constitute a contractof Contract A and trust that they will be in most cases, separate from the eventualtreated fairly. Shame on us if we make that construction contract. And for 43 years,decision without consulting a lawyer. Some the Ron Engineering decision has made alawyers argue that the Tercon Contractors genuine difference.Ltd. v British Columbia (Transportation Earlier this summer, a colleague at the BCand Highways) decision in BC 15 years ago Construction Association (BCCA) sharedpartially addresses this issue. a concern about an increasing number ofIn that case, the procurement process public owners in his jurisdiction opting towas an RFP rather than a conventional remove Contract A from the procurementtender but the RFP was based on specific, process which ultimately resulted in apredefined standards and a bid security. province-wide industry alert that targetedLets be clear. I am not a lawyer but I the municipalities, school districts,do see how and why it was argued that universities and crown corporations thatdespite being characterized as an RFP, the were choosing to ignore the 1981 RonTercon procurement was more like a tender Engineering decision. and less like a typical RFP which would 6Quarter 22024 BUILDERSDIGEST'