This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its May 1999 decision in J.P. Towing Service and Storage Ltd. v. Toronto (Metropolitan) Police Services Board, the Ontario Divisional Court ordered the government to award a towing services contract to a sole bidder after finding that the Toronto (Metropolitan) Police Board improperly cancelled a tendering process. The towing company brought an application for judicial review and sought a mandamus order to force the Board to award it the contract. The Court granted the application, finding that the Board’s cancellation decision was unfair to the bidder:
In this case, because the court is concerned about proper public practices of tendering governments at all levels, because the court is concerned about fairness to those who contract or seek to contract with the government, and because the court is concerned with the implications of the lack of tendering practices (the towing services may be wanted or unwanted by the public in Greater Toronto) bearing all that in mind, in my view, the fair thing to do is to permit all of the towing companies to be put in the same position as they were when the offer and decision was made by the Board not to accept or deal with the tenders that were opened seeking response to contracts for the business for towing for 1999 to 2001. In other words, in my view, the Board should be required to offer and to extend to the applicant the same proposals which were accepted by the other towing companies.
As this case illustrates, purchasing institutions cannot arbitrarily cancel a tendering process simply because they receive only a single bid. Where they do cancel in these situations and are legally challenged, they will need to establish that the decision to cancel was made for valid reasons.
