Tenders and requests for proposals A distinction with a difference
By Tyler Galbraith, Jenkins Marzban Logan LLP
W
hile many tenders and requests for proposals proceed in generally the same manner and have generally similar outcomes, the choice of procurement process matters. Notably, the legal obligations owed between the parties differ markedly depending on whether the process is a tender or a request for proposals. Accordingly, the procurement model chosen can have sig-
nificant (and potentially unintended) consequences depending on which process is used and how clearly the procurement documents are drafted. The rationale for the tender process is to replace negotiation with competition. In a tender process, the parties intend to create contractual relations through the submission of a compliant bid. However, a request for proposals process is a non-binding invitation to enter into negotiations and is
based on the presumption that submitted proposals will be used for further negotiation potentially leading to a contract. The offer to negotiate which forms the basis of a request for proposals is generally not considered to give rise to contractual relations meaning Contract A can only be formed in a tender process. Whether Contract A is formed depends of the precise language and intention of the procurement documents. The label or name
General Contracting • Renovations Commercial • Custom Homes Complex Concrete • Architects & Designers Tyler Galbraith Tel: 604 895 3159 tgalbraith@jml.ca
42 Vancouver Island Construction Association
cwhite@cwhconstruction.ca 250-883-8111 www.cwhconstruction.ca
