Coco Paving (1990) Inc. v. Ontario (Minister of Transportation) et al., 2009 ONCA 503

• Judge: Cronk, Gillese and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 18, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 503;(2009), 252 O.A.C. 47 (CA)

Coco Paving v. Ont. (2009), 252 O.A.C. 47 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JN.083

Coco Paving (1990) Inc. (applicant/respondent in appeal) v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation for Ontario, the Minister of Transportation, Ministry of Transportation and Phil Hutton (respondents/respondents in appeal) v. Bot Construction Limited, Bot Holdings Limited, Bot Construction (Canada) Limited, Clarkson Construction Company Limited, Bot Ventures Ltd., Bot Construction (Ontario) Limited, and Bot Management Services Ltd. (intervenors/appellants) and Ontario Road Builders' Association (intervenor)

(C50509; 2009 ONCA 503)

Indexed As: Coco Paving (1990) Inc. v. Ontario (Minister of Transportation) et al.

Ontario Court of Appeal

Cronk, Gillese and Armstrong, JJ.A.

June 19, 2009.

Summary:

A late bidder in a tendering process applied for a declaration that its bid was compliant with the tenderee's Instructions to Bidders.

The Ontario Superior Court allowed the application. Another bidder appealed.

The Ontario Court of Appeal allowed the appeal. The late bidder's application was dismissed.

Building Contracts - Topic 1311.1

Tender calls - General - Time to submit tender - The tenderee's Instructions to Bidders provided that, to be considered, a bid "must be received" by the tenderee's computer servers (through a submit action) before tender opening at 3:00 p.m., Toronto time, on April 29, 2009 - In addition, Art. 5.1 of the Instructions to Bidders provided that if a bidder's computer system failed, the bidder had to contact the tenderee's help desk by telephone "no later than 30 minutes prior to Tender Opening" - Coco Paving first attempted to access the tenderee's computerized bidding system at about 2:40 p.m. on April 29, 2009 - Its bid was eventually sent at 2:50 p.m. - Due to an unexplained computer "glitch", the tenderee received the bid only at 3:28:05 p.m. on April 29, 2009 - The Ontario Court of Appeal, after discussing the law relating to bid delivery timing, held that Coco Paving's bid was not compliant with the tenderee's Instructions to Bidders - In addition, Art. 5.1 was not engaged absent Coco Paving contacting the telephone help desk "no later than 30 minutes prior to Tender Opening" - See paragraphs 1 to 32.

Cases Noticed:

Ron Engineering & Construction (Eastern) Ltd. v. Ontario and Water Resources Commission, [1981] 1 S.C.R. 111; 35 N.R. 40, refd to. [para. 4].

M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 S.C.R. 619; 237 N.R. 334; 232 A.R. 360; 195 W.A.C. 360, refd to. [para. 4].

Hub Excavating Ltd. v. Orca Estates Ltd. et al. (2009), 269 B.C.A.C. 186; 453 W.A.C. 186; 2009 BCCA 167, consd. [para. 4].

NAC Constructors Ltd. v. Alberta Capital Region Wastewater Commission (2005), 10 B.L.R.(4th) 252 (Q.B.), affd. (2005), 380 A.R. 318; 363 W.A.C. 318; 2005 ABCA 401, refd to. [para. 11].

Bradscot (MCL) Ltd. v. Board of Education (Roman Catholic Separate) of Hamilton- Wentworth et al. (1999), 116 O.A.C. 257 (C.A.), consd. [para. 12].

Counsel:

Christopher D. Bredt and Matthew R. Alter, for the appellants, the Bot Group;

Ronald Carr and Henry Weilenmann, for the Crown respondents;

David M. McNevin, for the respondent, Coco Paving (1990) Inc.;

Duncan W. Glaholt, for the intervenor, Ontario Road Builders' Association.

This appeal was heard on June 18, 2009, by Cronk, Gillese and Armstrong, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by the Court and was released on June 19, 2009.