Is a Site Visit a Material Condition to a Tender?

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An invitation to tender may contain many conditions, some of which are more or less material to the ultimate submitted tender. Is a requirement that the contractor attend a site visit a material condition of the tender? In Admiral Roofing v. School District 57 (Board of Education), the British Columbia Supreme Court said Yes, and held that a missed site visit eliminated the contractor from the bidding process.

The contractor argued that it substantially complied with the site visit requirement by attending part of the site tour, signing its name and returning later to the first site (the contractor arrived 15 minutes late for the first site visit).

The Court held that the word "attend" required the attendance at the two locations and at the mandatory site tour starting at 8 a.m. The Court held that the words "failure to attend and register will lead to the non-acceptance of the tender by the owner" made this mandatory requirement sufficiently clear.

The Court also held that this failure by the contractor could not be waived by the owner under the tender condition entitling the owner to waive "irregularities...of a minor or technical nature". While arriving late by five minutes might have been technical if the School District's site team had still been there, there was no discretion to waive the actual fist site visit itself.

Construction Law - Tenders - Site Visit - Materiality

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thomas Heintzman, Arbitration Place | Attorney Advertising

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