In 2011, SK Ministry of Highways and Transportation put out an Invitation to Tender (ITT) for supply, fabrication, delivery and erection of structural steel for a bridge over South Saskatchewan River near St. Louis, SK.  The ITT was a typical long construction solicitation document.  Two parts of it are of significance:

1.  CONTRACTOR QUALIFICATIONS
2. Further to General Provision 1200.3, the Contractor shall be certified by the Canadian Welding Bureau to the requirements of CSA Standard W47.1-92, Division 1.

The tender call also contained a privilege clause that stated:
The Minister reserves the right to reject all Bids and cancel the competition without any liability.

Two bidders bid:  Surespan and Structal.  Surespan’s bid was lower but the part for erection of steel parts was twice the estimate of the Ministry.   The Ministry was about to award the contract to Surespan when it found out that Surespan did not employ any welders with the required certification.  So, the Ministry considered Surespan’s bid noncompliant.  In fact, it found a reason to find the other bid also noncompliant.  Therefore, it cancelled the tender and re-tendered it in two parts:  (i) Supply, fabrication, and delivery of structural steel and (ii)the erection of structural steel.  Surespan filed a lawsuit against the Ministry for using bad faith.  Also, Surespan claimed that the requirement for welding certificate applies to the actual work (performance Contract B, not bidding Contract A) and that it was going to employ certified Welders if and when it was awarded the contract.

a. Was Surespan’s bid noncompliant?  Briefly explain, distinguishing between Contract A and Contract B.  
b.  Could the ministry have used the privilege clause above and cancelled the original tender?  Briefly explain.
c.  What is your judgement in this case?

Answer rating: 100% (QA)

a The bid was noncompliant because it failed to meet compliance require... View the full answer