Discriminatory bid policies from some public owners across the country has riled the Canadian Construction Association and its members.
After lengthy discussion and drafting, the Canadian Construction Association board approved a tentative policy statement on exclusionary bidding practices.
“We’re anxious to get this policy statement into place,” said John Bockstael with Bockstael Construction, during the standard practices committee meeting, where the wording of the statement was crafted.
The association is concerned with policies that exclude contractors from bidding on a project because of current or past litigation.
The draft reads, “That, CCA opposes the practice by public owners of excluding construction contracting firms and suppliers from bidding their projects, or otherwise penalizing them, solely because of past or current litigation or other contested disputes with that public owner, or other public owners.”
At the CCA’s spring board meeting in Victoria, B.C. the draft was approved, but could be subject to additional editorial revisions.
Members said they are unhappy with the practice, which they’ve seen pop up again and again over the years.
They claim municipalities and other public agencies are prohibiting engineering firms and contractors from participating in procurement opportunities with the municipality, sometimes for an extended period of time, if they are or have been engaged in either litigation or alternative dispute resolution with that municipality.
The wording of the association’s policy statement was hashed out during a meeting of CCA’s Standard Practices Committee.
During that meeting, Geza Banfai, counsel with McMillan LLP, said the practice of public owners discriminating against companies that engage them in litigation is “awful,” “obnoxious” and as a matter of law would be difficult to defend.
Much of the debate concerned whether to target just public owners or owners in general.
Banfai advised that since public owners use public funds and are subject to more policies and bylaws, addressing issues with them is easier.
Other members also expressed that their main issue was with public owners, not private ones.
The CCA isn’t the only group taking a stand against the practice.
The Association of Consulting Engineering Companies-Canada released its own policy statement last month, stating that the sanctions “effectively coerce member firms into not exercising their legal rights (both in law and contractually) by threat of barring them from participating in projects if they are or have been legitimately involved in litigation, arbitration or alternative dispute resolution.”