Tendering Chase V. Sorochan Case

The case of MJB and Defence Construction revolves around a tender that Defence set forth and bidders responded with unit pricing for the work. Out of four, Sorochan was the lowest bidder while MJB was the second lowest. Submitted bids were required to have a single unit price for all types of trench fill, regardless of amounts actually required for the job. Sorochan had submitted a price for one type of fill and noted in the bid that pricing may change if another type of fill were to be used. MJB and other bidders complained stating that the note was a conditional qualification that would render Sorochan’s bid invalid. Despite the complaint, Defence Construction awarded the bid to Sorochan and stated that the note was a “clarification”. MJB …show more content…
LAWS In his book, Accelerating the Tendering Cycle: A Legal Due Diligence Guide, Paul Emanuelli mentions the five implied duties of Contract A, which specifically stemmed from this case: M.J.B. Enterprises v. Defence Construction. Canadian jurisprudence recognized the following laws for this case:
1- The disclosure duty
Buyers of services are under an obligation to disclose material information relating to the procurement process, including how bids will be evaluated, which may have an effect on other bidders’ decisions to either submit their bid or adjust pricing.
2- The duty to reject non-compliant bids
Under Contract A, there is no doubt that non-compliant bids must be rejected. Though a privilege clause may give the entity a right not to accept the lowest bid, such clause would not operate to override an implied promise to accept compliant bids only.
3- The duty to run a fair process
Contract A entails the purchaser’s duty to follow a fair process during tendering by following established evaluation rules and avoiding biases and conflicts of interest.
4- The duty to award to the winning