The Characterization of a Procurement Process as a 'Call or Request for Bids or Tenders' under Section 47 of the Competition Act

Abstract

La version française de cet article peut être consultée au: http://ssrn.com/abstract=2499560.

Courts have recently recognized that the law of tenders can provide useful indications as to what a "call or request for bids or tenders" should consist in for the purpose of section 47 of the Competition Act. In two preliminary inquiry judgments rendered in Quebec (Al Nashar/Industries Garanties) and Ontario (Dowdall) involving bid-rigging charges, courts have made reference to the contract A/contract B scheme of the law of tenders. They also had to assess the weight of "privilege clauses" (i.e. no obligation upon the owner to accept the lowest bid or any tender submitted) and post-selection negotiations in the characterization of a procurement process as an RFP. This paper aims to review these two decisions, along with other case law rendered under section 47 and the law of tendering, in an attempt to propose basic general criteria and a nonexhaustive set of indicia to determine whether a procurement process is contemplated under section 47 of the Competition Act. In particular, the authors assess the weight of the contract A/contract B paradigm, privilege clauses and negotiations in the characterization of a tendering process as a "call or request for bids or tenders."

Keywords: competition law, antitrust, white collar crime, criminal law, economic crimes, bid-rigging, requests for proposals

JEL Classification: K21, K14