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M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619


D invited for tenders. D accepted S’s tender. In tender document said lump-sum. S had written note that specified diff prices. P says that invalidated tender. D relies on privilege clause – lowest bid doesn’t have to be accepted. P says contract was non-compliant


In the tender process there are two contracts – ‘A’ when the tenders are submitted for consideration. The person asking for the tenders does not have to accept the lowest bid, but does have an obligation to not accept a non-compliant bid. ‘B’ is created when one of the tenders in accepted (the contract to do the work).


Terms are to be examined on the terms and conditions of the tender call. – this means that Contract A may not always be formed in the tenure process (if explicitly says it is not an offer).
**Look at intention of offeror
**Also look at: Whether Contract A arose depends on whether the parties intended to initiate contractual relations by the submission of a bid in response to the invitation to tender.

D was in breach to everyone who submitted a compliant tenure by accepting non-compliant tenure
**Damages are awarded based on actual loss (who would have got bid)


D breached the obligation to the tenders by accepting a non-compliant bid

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