The Characterization of a Procurement Process as a ‘Call or Request for Bids or Tenders’ under Section 47 of the Competition Act
Posted by Social Science Research Network
The Characterization of a Procurement Process as a ‘Call or Request for Bids or Tenders’ under Section 47 of the Competition Act – Pierre-Christian Collins Hoffman (McMillan LLP) and Guy Pinsonnault (McMillan LLP)
ABSTRACT: Courts have recently recognized that the law of tenders can provide useful indications as to what a “call or request for bids or tenders” should consist in for the purpose of section 47 of the Competition Act. In two preliminary inquiry judgments rendered in Quebec (Al Nashar/Industries Garanties) and Ontario (Dowdall) involving bid-rigging charges, courts have made reference to the contract A/contract B scheme of the law of tenders. They also had to assess the weight of “privilege clauses” (i.e. no obligation upon the owner to accept the lowest bid or any tender submitted) and post-selection negotiations in the characterization of a procurement process as an RFP. This paper aims to review these two decisions, along with other case law rendered under section 47 and the law of tendering, in an attempt to propose basic general criteria and a nonexhaustive set of indicia to determine whether a procurement process is contemplated under section 47 of the Competition Act. In particular, the authors assess the weight of the contract A/contract B paradigm, privilege clauses and negotiations in the characterization of a tendering process as a “call or request for bids or tenders.”
Featured News
Canadian Breadmakers Settle Price-Fixing Lawsuit
Jul 25, 2024 by
CPI
EssilorLuxottica Open to Meta as Shareholder, Says CEO Francesco Milleri
Jul 25, 2024 by
CPI
California Supreme Court Upholds Proposition 22, Securing Independent Contractor Status for Uber and Lyft Drivers
Jul 25, 2024 by
CPI
Paramount Global Investor Sues to Block Skydance Media Merger
Jul 25, 2024 by
CPI
Software Vendors Win Class Action Status in Antitrust Case Against CDK Global
Jul 25, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – International Trade & Antitrust
Jul 26, 2024 by
CPI
What is Wrong with the WTO Discipline on Subsidies?
Jul 26, 2024 by
CPI
The Abiding Tension Between Trade Remedy Law and Antitrust
Jul 26, 2024 by
CPI
Trade and Antitrust: An End to Isolationism
Jul 26, 2024 by
CPI
International Trade Law and Domestic Regulation of Generative Artificial Intelligence: Divergent Approaches?
Jul 26, 2024 by
CPI