Procurement Law And Contract Interpretation

This course will expose students to current Canadian legal approaches concerning the interpretation of written contracts, including with respect to specific, common contractual clauses.

Students will also gain a strong understanding of the Canadian law of procurement, including duties owed by each of the parties in competitive bidding processes and how such duties have evolved over time.

Furthermore, students will develop basic skills regarding the drafting of commercial contracts.

In addition to traditional textbook readings, students will be expected to read and discuss numerous critical court decisions relevant to the interpretation of contracts and to procurement law.

Course Content

1. Contractual Interpretation

• Objective and subjective intentions of parties
• Custom and usage
• Good Faith
• Conduct of parties
• Contra proferentum
• Ejusdem generis
• Parol Evidence Rule
• Use of recitals and defined terms
• Implied terms
• Rectification
• Estoppel
• Interpretation of particular categories of clauses, including Best Efforts, and Commercially Reasonable Efforts

2. Procurement Law

• Forms of Competitive Bidding
  • Tenders
  • Requests for Proposals
  • Calls for Expressions of Interest (EOI)
  • Two stage procurement (ie with EOI, Requests for Qualifications, etc.)
• Obligations of the parties
  • Duty of fairness
  • Disclosure obligations
  • Consideration of non-compliant bids (including use of Rectification clauses)
• Specific clauses
  • Privilege clauses
  • Discretion clauses
  • Exclusion and limitation clauses
  • Negotiation clauses
• Public procurement
  • Canadian Free Trade Agreement
  • New West Partnership Procurement Agreement
  • North American Free Trade Agreement
  • Canada-European Union Comprehensive Economic and Trade Agreement
  • Rights and obligations arising under example statutes

3. Drafting Contracts

Learning Activities

Lectures, seminars, videos, analysis of legal issues, discussion of legal cases, case assignments, and group activities.

Learning Outcomes

At the end of this course, successful students will be able to:

• Describe the key components of the Canadian law of competitive procurement, including commonly used forms of procurement;
• Identify critical contractual clauses commonly used in procurement documents;
• Explain the effect of prominent court decisions with respect to the evolution of Canadian procurement law;
• Recount the obligations of the parties in a competitive procurement context;
• Demonstrate knowledge of particular treaties and statutes that are applicable to the Canadian law of public procurement;
• Describe common approaches used by Canadian courts in interpreting commercial contracts, including with respect to specific categories of common contractual clauses;
• Explain the importance of the notion of good faith in Canadian contract law; and
• Draft basic, unambiguous commercial contracts.