This article is an extract from the 5th edition of Government Procurement.
In its January 2023 decision in Redwood Construction Ltd. v. Memorial University of Newfoundland, the Newfoundland and Labrador Supreme Court – General Division rendered a summary judgment against a non-compliant bidder. The case dealt with a tendering process for the construction of a new building for Memorial University. The university rejected the low bid for non-compliance and awarded to the next-best bidder. The low bidder sued and brought a motion for summary judgment. The court determined that the lower bidder’s bid was non-compliant and summarily dismissed the lost profit claim after finding that the bidder failed to submit a signed bid and therefore failed to create Contract A:
Based on the clear wording of subsection 1.21 of the Instructions to Bidders I find that a signed bid was a mandatory submission requirement of this open call for bids. Redwood failed to submit a bid signed by the duly authorized officials of the bidder. The failure by the bidder to submit a bid that conforms to all the mandatory terms of the open call for bids resulted in the submission of a non-compliant bid.
As a result of this finding it follows that Contract A was not formed between Redwood and Memorial by the submission of the Redwood Bid, and no contractual obligations binding on the public body or bidder ever came into existence. It further follows that Memorial was required to reject the Redwood Bid, and Memorial did not breach any contractual obligation to Redwood by making the award to Olympic.
As this case illustrates, the failure to adhere to the formalities of submitting a compliant bid form can prove fatal to the validity of a bid and to any subsequent claims brought by the rejected non-compliant bidder.
