The Purchasing Law Handbook

Preface and Acknowledgements
Table of Cases
Part A - General Law
Chapter 1: The Legal System in Canada
A. The Legal Doctrine of Precedent
B. Common Law v. Equity
C. Sources of Law
D. The Hierarchical System of Our Courts
E. Expense of the Legal System
F. Lawyers
Chapter 2: Formation of Contract
A. What is a Contract?
B. Essential Elements of a Contract - An Overview
C. Essential Elements - The Rules
D. Summary of Contract Rules
Chapter 3: Common Problems in Forming Contracts
A. Offer and Acceptance Must Match
B. The Battle of the Forms/The War of Words
C. An Acceptance Which Adds a New Term May Not Be Acceptance at All
D. How Enforceable is a Verbal Agreement?
E. How to Amend a Written Contract
F. If We Have No Contract, Do I Owe You Anything (Quantum Merit)
Chapter 4: Problems in Enforcing Contracts
A. This Contract is Unfair, Let Me Out! (Unconscionable Transactions)
B. If I Had Known the Truth, I Never Would Have Made This Deal (Misrepresentation)
C. I Made a Mistake, Let Me Out! (Mistake)
D. I Was Forced to Agree (Duress)
Chapter 5: The End of a Contract
A. Introduction
B. Discharge by Performance
C. Discharge by Agreements
D. Discharge by Operation of Law
E. Discharge by an Act of God (Legal Frustration)
Chapter 6: Breach of Contract
A. Non-Performance and Breach of Contract
B. Warranties and Conditions
C. Anticipatory Breach
D. Complete Failure to Perform
E. Substantial Performance
F. Inadequate Performance and Poor Performance
Chapter 7: Remedies of Law
A. Introduction
B. Available Remedies
C. Damages Generally
D. Damages in Contract
E. Damages in Tort
F. Punitive or Exemplary Damage in Tort
G. Duty to Mitigate Losses
H. Rescission
I. Specific Performance
J. Injunctions
K. Rectification
Chapter 8: The Agency Contract
A. The Agency Relationship
B. Authority
C. Agents and Employees
D. Types of Agency
E. Duties of the Principal to the Agent
F. Duties of the Agent to the Principal
G. Duties of the Agent to Third Parties
H. Vicarious Liability of the Principal
I. Personal Liability of the Agent
J. Who May be Sued
K. Termination of Agency
Chapter 9: The Law of Employment
A. Introduction
B. Employee or Agent?
C. Vicarious Liability
D. The Employment Contract
E. Employee Indemnification
F. Termination of the Employment Contract
G. Grounds for Dismissal
Hi. Remedies for Wrongful Dismissal
I. Independent Contractors
Chapter 10: The Law of Torts
A. Introduction
B. Intentional Torts
C. Assault and Battery
D. False Imprisonment
E. Trespass to Land
F. Deceit
G. Nuisance
H. Defamation
I. Intentional Interference with Contracts
Chapter 11: The Law of Negligence
A. Introduction to Negligence
B. Negligent Misstatement
C. Personal Liability of the Maker
D. Avoiding Negligent Misstatement
Chapter 12: The Laws of Competitive Bidding
A. Introduction
B. Purpose and Process
C. Types of Competitive
D. Other Types of Competitions
E. Competitive Bidding Law is Created
F. To Whom are Obligations Owed?
G. The Express Obligations of Competitive Bidding
H. The Implied Obligations of Competitive Bidding
I. The Duty to Full Disclosure
J. Exceptions to the Duty to Disclose
K. Excluding the Obligation to Fully Disclose
L. The Duty of Disclosure in Public Procurement
M. The Duty to Treat Bidders Fairly and Equally
N. The Confusing Nature of "Fairness"
O. The Greater Burden of Fairness in Public Procurement
P. Award to the Lowest Bidder
Q. Owner's Right to Cancel
R. Compliant Bidding
S. Negotiation in Competitive Bidding
T. Fairness in Competitive Bidding
U. Liability of Consultants in Competitive Bidding
V. Damages in Competitive Bidding
W. Avoiding Competitive Bidding - the Request for Information
Chapter 13: Legal Duties of the Owner
A. Introduction
B. To Whom Are the Obligations Owed?
C. The Invitation to Bid Package
D. The Duty of Full Disclosure
E. The Duty to Treat All Bidders Fairly and Equally
F. Lowest or Any Bid Not Necessarily Accepted
G. Receipt and Qualification of Bids
H. The Dangers of Pre-Award Commitments
Chapter 14: Obligations of Bidders
A. Introduction
B. Submission of a Qualified Bid
C. Obligations Upon Bidders
Chapter 15: Obligations of the Contractor
A. Introduction
B. Obligation to Perform
C. Skill in Performance
D. Do Work or Achieve a Result?
Chapter 16: Contracting for Services
A. Introduction
B. Beware of Your Purchase Order and Purchase Agreement
C. Special Skills Required
D. Negotiation
E. Measuring Performance and Problems of Definition
F. Deliverables as a Condition of Payment
G. Protect Yourself
H. Remedies
I. Hold Backs
J. Can They Really Save You Harmless?
K. Common Traps of Service Contracts
Chapter 17: Contract Management
A. Administration of Contracts
B. The Contract Role
C. Contract Manager as Facilitator
D. Contract Management Conference
E. Sub-Contracting: Who's Responsible?
F. Monitoring the Contractor
G. Monitoring Problems
H. Changing the Contract
I. Enforcement
J. Cancelling the Contract
K. Paying the Contractor
L. Enforcing the Contract
M. Where to Look for Your Legal Rights
N. Ending a Contract
O. Anticipatory Breach
Chapter 18: Introduction to Business Associations
A. Introduction
B. Types of Business Associations
C. The Sole Proprietorship
D. Contracting with Sole Proprietorships
E. Canadian Partnership Law
F. What is Partnership?
G. Buyer-Supplier Partnerships and Group Purchasing Alliances
H. Corporations and Partnerships
Chapter 19: Sale of Goods
A. Introduction
B. Sale of Goods Act
C. Excluding Sale of Goods Act
D. Scope of Sale of Goods Act
E. To Determine Whether the Act Applies to a Contract
F. Sale of Goods Act - Miscellaneous Provisions
G. Sale of Goods Act - Implied Conditions of Quality
H. Sale of Goods Act - Transfer of Property
I. Delivery and Acceptance
J. Waiver and Exemption of Liability
K. Remedies and Buyers and Sellers
Chapter 20: Building the Perfect Services Contract? (includes sample clauses)
A. Introduction
B. Descriptions of Work Control Everything
C. Sample Clauses (and Why You Need Them)
Chapter 21: E-Commerce and Cyber Law
A. Computers and the Law
B. Introduction to E-Commerce
C. Contracts and E-Commerce
D. The Requirement of Writing
E. Signatures
F. Offer and Acceptance
G. Glitches, Garbles and Gremlins
H. Jurisdiction of the Contract
I. Intellectual Property Laws
J. Defamation
K. Misrepresentation
L. Sales Agreement Issues
M. Security of Payment Issues
N. Insurance for Cyber Disaster
Chapter 22: Electronic Tendering
Chapter 23: Joint Ventures, Buyer Consortiums and Group Purchasing
A. Introduction
B. Expanding Role of Private Joint Ventures
C. Joint Ventures Defined
D. To Venture or Not to Venture
E. The Legal Vehicle
F. Which Vehicle is Best?
G. Joint Venture Corporations (JVC)
H. Joint Venture Partnerships
I. The Contractual Joint Venture (CJV)
J. Which Vehicle Do You Want?
K. Is Your Joint Buying Group a Partnership?
L. The Internal Rules
M. Creating the Agreement
N. The Membership Agreement of the Buying Group
O. The Competition Act
P. Concluding Thoughts
Chapter 24: Contracting in the U.S.
A. Canadian Law versus American Law
B. The Difference are Real
C. Formation of Contract (U.S.A.)
D. International Sale of Goods Act (RSBC 1990. Chapter 20)
E. Major Similarities to Canadian Law
F. Major Difference from Canadian Law
G. Competitive Bidding in America
Chapter 25: Legal Writing and Drafting
A. Legal Writing
B. Why Good Writing is Important
C. Good Legal Writing
D. Start Early
E. Precedents
F. Form and Structure
G. Topic and Document Flow
H. Outlines
I. Document Length
J. Clarity Over Completeness
K. Appearances Are Important
L. Style
M. Legal Drafting of Contracts
N. The Purpose of Purchasing Contracts
O. Why Worry About the Terms?
P. Balanced Contracts - Value for Money
Chapter 26: Building the Perfect RFP
A. The Request/Invitation
B. The Contents of the Request/Invitation
C. Format of the Request/Invitation
D. Beware of Asking for the Moon
E. Building the RFP/Invitation
F. Know Who You Are
G. Always Get Legal Advice
H. Owner Powers
I. The Power to Negotiate
J. Best and Final Offers (BAFO)
Part B - Case Summaries