ABSTRACT
In Canada, contract liability is the primary means for addressing public contract award disputes. However, while courts are also recognizing the role that judicial review can play therein, public authorities are increasingly falling back on exclusions of liability in order to limit recourse to civil litigation. This development is important given that governments across Canada have committed themselves through international trade agreements to give suppliers the right to ‘effective remedies’. The questions that arise are:
(1) to what extent Canadian law measures up to this international standard and,
(2) how tendering remediation can be made more effective.
This essay explains to what extent contract liability for lost profits can be described as the principal means of regulating the public tendering process and the problems associated with this declining trend. The essay then turns to practical steps that can be taken so as to avoid public liability while ensuring fairness and respecting Canada’s international commitments. The author argues in favour of a more financially effective approach to remediating tendering disputes, taking into account comparative perspectives on understanding the complementary role of damages and judicial review.
Lambert, Nicolas, Effective Remediation in Public Procurement: Contract Damages Versus Judicial Review (July 12, 2020). (2020) 51:2 Ottawa Law Review 361.
First posted 2020-08-17 03:55:35
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