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One can wonder how far this discretion
can extend. Can the Ministry of Highways
and Infrastructure simply include a local
Saskatchewan preference as a factor if this
is “best value” for the government? On the
face of this legislation, it appears that a sim-ple
local preference might provide “best val-ue.”
However, it is clear in the Agreement on
Internal Trade, the New West Partnership
and many of our international treaty obliga-tions
through the World Trade Organization
and the General Agreement on Tariffs and
Trade, that an unqualified local preference
is not permitted. How far will the provincial
government push this legislation?
Interestingly, because they must now spec-ify
with a reasonable amount of detail the
factors that define “best value,” tenders are
starting to look and act more like RFPs. In
the old world of lowest-price-must-win, there
was no need to describe much of anything
– the evaluation process was clear and very
objective. The evaluation process for public
tenders is now becoming more subjective and
more difficult to make a determination on.
The act is clear that a minister is not re-quired
to accept any tender – so the govern-ment
reserves the right to cancel it entirely
and run a new one if none of the bids pro-vide
“best value.” One could expect to see in
the future, more tenders cancelled with no
award, as the provincial government learns
to apply these new criteria.
Chad Eggerman is a construction lawyer
who practices in the areas of corporate
and commercial law, procurement,
environmental, Aboriginal and dispute
resolution with Miller Thomson LLP. He
looks forward to continuing to work together
with clients to build new infrastructure in
Saskatchewan. Feel free to contact him about
this article or other construction questions
at ceggerman@millerthomson.com.
“One can wonder how far this discretion
can extend. Can the Ministry of
Highways and Infrastructure simply
include a local Saskatchewan
preference as a factor if this is ‘best
value’ for the government?”
HANK SHIFFMAN/SHUTTERSTOCK.COM
Saskatchewan
Legislative Building
on Wascana Lake
56 Think BIG | Quarter 3 2016 | saskheavy.ca
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