This article is an extract from the 5th edition of Government Procurement.
In its May 2020 decision in Triton Hardware Limited v. Torngat Regional Housing Association, the Supreme Court of Newfoundland and Labrador awarded lost profit damages to a bypassed low bidder after the Housing Association improperly relied on a privilege clause to award the contract to a higher bidder based on its undisclosed prior performance preference. The dispute dealt with a tender call for the supply of materials for the construction of houses. The plaintiff submitted the lowest compliant bid in what the Court found to be a Contract A bidding process, but the Housing Association awarded to another bidder because that other bidder had reliably performed similar work for it in the past. The Court ruled that the Housing Association was not entitled to rely on its privilege clause to apply an undisclosed prior performance preference and, in its summary decision, awarded the low bidder its lost profits.
