Tendering Law: Mandatory Means Mandatory

A recent Supreme Court of British Columbia decision has confirmed that when a tender requires bidders to attend a mandatory site meeting, failure to attend will most likely render a bid non-compliant, and incapable of acceptance.

In Admiral Roofing Ltd. v. The Board of Education of School District No. 57, 2010 BCSC 1394, the tender at issue was for the re-roofing of two buildings owned by the School District. A mandatory site meeting, involving inspections of both buildings, was required by the invitation to tender. The invitation to tender included the statement that “failure to attend and register will lead to the non-acceptance of the tender by the owner”.

At the appointed time, representatives of the School District awaited the contractors at the first of the two buildings. Only one contractor showed up. A representative of the plaintiff was expected to attend, so the group waited an additional five minutes. When the additional five minutes had passed with no sign of the plaintiff, the group concluded the inspection of the first building and proceeded to the second.

Meanwhile, the plaintiff arrived at the first building fifteen minutes late, realized the group had left, and proceeded to the second building, where he joined the group twenty-seven minutes late. The plaintiff signed the register of contractors, and completed the inspection of the second building. A School District representative asked the plaintiff if he wanted to return to the first building for an inspection, but the plaintiff said he would do so another day.

Later that day, the plaintiff was contacted by the School District and informed that his failure to attend the mandatory site meeting meant that the School District would not accept a bid from him. The plaintiff explained that he had been late due to an employee having health problems, however the School District maintained its position. The next day, the plaintiff went to the first building on his own and conducted an inspection.

The plaintiff’s bid was rejected unopened by the School District, and the other contractor’s bid was accepted. The plaintiff’s bid, if accepted, would have been the lower of the two. The plaintiff sued the School District, alleging that its bid was compliant and had been wrongfully rejected.

The Court held that the plaintiff’s bid was incapable of acceptance. Although the School District had reserved the right in the tender documents to waive irregularities of a “minor or technical nature”, the Court did not consider failure to attend one of the two buildings as being minor or technical. At paragraph 18 of its reasons for judgment, the Court stated: “If in fact the plaintiff had showed up 5 minutes late for instance and participated in the inspection of both locations, his failure to attend the first 5 minutes would, in my view, be a technical breach. The breach in this case however, I am satisfied, is not technical and therefore the issue of waiver does not come into play.”

The Court emphasized the importance of protecting the fairness of the tendering process, particularly with regard to other bidders, and concluded that the School District did not have discretion to waive non-compliance with the mandatory site meeting requirement. The School District made the right decision.

Put another way, the Court’s reasoning suggests that if the School District had accepted the plaintiff’s bid and awarded him the contract, the other bidder would have had a claim against the School District for violation of the duty of fairness, and the duty to accept only compliant bids.

When local governments, like other owners, include a mandatory site meeting requirement in a tender, failure to attend the site meeting is likely to be viewed by the Court as an issue of material non-compliance, requiring the rejection of the bid. While in some circumstances it may be tempting to accept a bid despite such non-compliance, the Admiral Roofing case makes it clear that this is a risky course of action, and one that should not be taken without obtaining legal advice first.