The BC Construction Association (BCCA) has issued an industry alert about the removal of “Contract A”, following the confirmation of cases of its removal from the procurement process by a growing list of public owners, including some municipalities, school districts, universities, and crown corporations.

In the absence of “Contract A”, BCCA warns that general contractors and trade contractors should not assume that they will be treated fairly and probably have no legal recourse for being treated unfairly.

In Canadian contract law, “Contract A” ensures fairness, openness and transparency between the owner and each compliant bidder who responds to a procurement call. “Contract A” typically includes terms and conditions such as deadlines, evaluation criteria, privilege clauses and often the requirement for bid security. It serves to protect the legitimate expectations and interests of all parties.

“The removal of “Contract A” is the most significant violation of public sector procurement processes that the construction industry has seen to date. It is a serious concern for industry associations and should be of equal concern to BC taxpayers,” said BCCA president Chris Atchison. “When a public sector owner willfully removes an obligation to act fairly in its dealings with you at the start of a project, you have to ask yourself: do you really want to bid on that project and work with that government entity?“

The associations stresses that the absence of “Contract A” undermines the integrity of the procurement process, and may result in: lack of transparency, bid shopping, legal vulnerabilities, unequal treatment and more.

BCCA recommends construction firms proceed with extreme caution in the face of the unprecedented implications of the removal of “Contract A”. Contractors are advised to:

• read all procurement documents carefully.
• use the RFI process to question the intent of the Owner’s procurement process in cases where “Contract A” has been removed.
• seek legal advice when they have questions or concerns about procurement and contract conditions.
• consider qualifying their bid only once they have fully evaluated the associated risks and are prepared to accept the consequences.
• advise their regional construction association and BCCA of any irregularities in the procurement process through the BCCA Public Sector Transparency Tip Line.

“As the industry moves toward increased collaboration and working together to tackle the challenges of today’s increasing costs and decreasing labour force, issues like a lack of fair procurement are an unneeded distraction. The removal of “Contract A” adds unnecessary uncertainty and risk that could increase project costs and impact the construction of critical infrastructure needed to support BC’s economy and communities,” said Jeannine Martin, president, Vancouver Regional Construction Association.