No extensons, Must !e "" su!#tted, n Word $erson Mar 04, %01& [25] An Ontario municipality (the Owner) decided to update and expand its water treatment facilities. To do so, the Owner inited competitie tenders from contractors for the construction of the new facility The Owner!s consultant on the pro"ect desi#ned the facility and prepared the Tender $ocuments to %e #ien to potential contractors interested on %iddin# on the pro"ect. The Tender $ocuments included the &lans and 'pecifications, the Tenderin# (nstructions, which descri%ed the tenderin# procedure and other re)uirements to %e followed %y the %idders, the Tender *orm to %e completed %y the %idders, the form of written contract that the successful contractor would %e re)uired to si#n after %ein# awarded the contract and a num%er of other documents. Accordin# to the Tenderin# (nstructions, each tender %id was to remain +firm and irreoca%le and open for acceptance %y the Owner for a period of ,- days followin# the last day for su%mittin# tenders.. The Tenderin# (nstructions also proided that each %idder was to include with its tender, a certified che)ue for /2--,--- paya%le to the Owner as a tender deposit. (n addition, the Tenderin# (nstructions contained the followin# proision descri%in# the circumstances in which the Owner would %e entitled to retain the tender deposit0 +The %idder #uarantees that if its tender is accepted %y the Owner and the Owner does not, for any reason whatsoeer, receie the 1ontract si#ned %y the successful %idder within 2 days after the successful %idder has %een represented with the 1ontract for si#nature, the Owner may retain the tender deposit for its own use and may accept any other tender.. 345 su%mitted its tender in accordance with the Tender $ocuments. Approximately 6- minutes after the tender closure time, 345 discoered that it had made a clerical mista7e in preparin# its tender0 345 had mista7enly copied a fi#ure from a calculation sheet. $ue to the error, 345 omitted an amount of /8--,--- from its tender price of /9,9--,---. (mmediately on discoer of its error, 345 contacted Owner and told him they wished to withdraw their tender. 345 and the Owner a#reed that the clerical error was #enuine0 howeer the Owner refused to permit 345 to withdraw its tender. :ithin 2 wee7s, the Owner announced that it had awarded the contract to 345, who was the lowest %idder and presented 345 with the contract for execution. 345 refused to si#n the contract. The owner then awarded the contract to the next lowest %idder, for a price of /9,,--,---. 6. :hat potential lia%ilities in contract law could arise in this case; The potential lia%ilities that are present is this case is %reach of contract %y 345, this is due to the fact that the owner clearly demonstrated throu#h the tender pac7a#e the rules associated with participatin# in the %iddin# process. The rules within the contract state that when a %id is selected, a pac7a#e must %e si#ned within seen day and sent to the owner to le#ally %ind the a#reement, this fact demonstrated that it is the %idders responsi%ility to effectiely accept the term and si#n the document. *ailin# to do so would result in the forfeitin# of the deposit of /2-- --- su%mitted to enter into the %iddin# process. As demonstrated in the <elle =ier >s ?aufman, it was su##ested %y a "ud#e that a "ust and reasona%le man will no profit %y the mista7es of others. Therefore 345 may hae a case to refund its deposited money. @oweer the owner may ar#ue that he was not aware of the flaw within the tender su%mission #race period, and that the tender contract pac7a#e consisted of all the a#reements set forth %y the owner to eliminate such conflict %etween tender %idders. 2. :ould the Owner %e entitled to claim from 345; As is demonstrated %y the case of =on An#ineerin# s. the Bueen, where the contractor =on An#ineerin# under )uoted the %id %y /25- ---. The %id a#reement and participation of the %idders followed a similar case scenario, where there were contractual rules set out for the %idders to follow. (nitially =on An#ineerin# won the case, howeer the supreme court ruled a#ainst this %ecause as stated %y the "ud#e +An adertisement for tender is an offer that is accepted when the tender is su%mitted and a contract is formed that precludes the contractor from withdrawin# their %id. therefore 345 will pro%a%ly not %e entitled to receie the money spent on the deposit. And therefore the owner may 7eep the money proided to enter the %iddin# a#reement.
9. @ow would the amount of the claim %e calculated; There would %e no claim since the owner in this case has the money surrendered %y 345 to enter into the %iddin# a#reement, since 345 did not accept the contract within the 2 day period and the contract has %een %reachedC howeer the the contractor is entitled to 7eep the deposit money. D. :ould the Owner %e entitled to retain the tender deposit; 4es the owner would %e entitled to retain the deposit as it is clearly stated within the contract a#reement the followin# +The %idder #uarantees that if its tender is accepted %y the Owner and the Owner does not, for any reason whatsoeer, receie the 1ontract si#ned %y the successful %idder within 2 days after the successful %idder has %een represented with the 1ontract for si#nature, the Owner may retain the tender deposit for its own use and may accept any other tender..
Therefore it is expected that all participants in the %iddin# process a%ide %y the rules that they hae a#reed to enter into. An so the owner may 7eep the /2--,--- deposit.