Procurement: A Refresher And More

This paper will consider the sources of liability in tendering: contractual claims arising from “Contract A”, the trade agreements, and judicial review. While the topic of contractual claims is well-trodden ground and claims appear to be in decline in recent years, Contract A remains a significant source of potential liability for local governments. We will review tender basics, the troublesome implied terms that often give rise to liability, and liability avoidance strategies. The trade agreements are less well-understood. This paper will examine the obligations they impose on local governments, when they apply, and other selected topics. Judicial review is the final source of potential liability in local government procurement. Although limited to a handful of cases, judicial review of procurement decisions appears to be occurring more frequently, likely because of the unavailability of contractual claims due to the frequent inclusion in invitations to tender of limitation and exclusion of liability clauses.

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