"Procurement" is simply the buying of goods,
services or construction, usually by a large organization, either
in the public or private sector. In order to ensure that the
organization is getting the best value for its money, it will use
some form of competitive procurement process. The need to ensure
that this process is fair, both to the buying organization and to
those bidding in the process, has given rise to a range of rules
and requirements. Procurement law looks at the way these rules are
applied by the courts. Procurement lawyers advise both buyers and
bidders in interpreting these rules.
Primary Sources of Procurement Law
In common law jurisdictions there are two primary sources of
laws – statutes and other legislation on the one hand,
and common law, developed by the courts, on the other.
Procurement Law in Europe
In Europe the European Union's directive on public
procurement governs all procurement by public sector bodies. This
directive contains detailed rules on the process to be followed and
what the public sector may or may not do. There are no equivalent
rules for the private sector and very few cases involving private
sector procurement. A procurement lawyer in Europe therefore looks
mostly to the Directive, or the laws that have applied it in the
relevant country, such as the Public Contracts Regulations 2006 in
the UK, and interprets those laws.
Procurement Law in Canada
In contrast, in Canada procurement law is mostly based on
contract and has been developed by the courts. In essence, when a
bidder submits a binding offer to a buying organization, a contract
is formed between the bidder and the organization. The details of
this contract and how it arises will be discussed in more detail in
subsequent blogs. The Canadian courts have been active in implying
terms into this contract in order to ensure fair and equal
treatment for bidders.
What to Expect from This Blog
The Canadian legal framework for procurement is therefore
sometimes difficult to identify. There are a number of leading
cases that set out the principles, but the way in which these are
applied can vary depending on the facts involved. This blog will
explore the principles and look at specific cases as they arise to
see how the law is developing. It will also provide suggestions as
to how those procuring goods, services or construction can best run
the procurement process and look at the options available to
bidders who feel that the process has not been run properly.
The content of this article is intended to provide a general guide
to the subject matter. Specialist advice should be sought about your
Specific Questions relating to this article should be addressed directly to the author.
The Court of Appeal for Ontario has recently issued its highly anticipated reasons in Keewatin v. Ontario, unanimously allowing the appeals of Resolute FP Canada Inc. and the governments of Ontario and Canada.
The Ontario Superior Court of Justice has recently determined that Stifel Nicolaus Canada Inc. (formerly Thomas Weisel Partners Canada Inc.) breached its bought deal engagement letter with Stetson Oil & Gas Inc.
On February 16, 2012, the Financial Action Task Force (FATF), the global standard setter in the fight against money laundering and terrorist financing, released revised FATF Recommendations through the publication of the "International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation – The FATF Recommendations".