



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Graham
                Ind.Svcs.Ltd. v. G.V.W.D. et al,









2004 BCCA
            5




Date: 20040107





Docket: CA31386

Between:

Graham
      Industrial Services Ltd.

Petitioner

(
Respondent
)

And

Greater
      Vancouver Water District

Respondent

(
Appellant
)

And

Commonwealth Construction Canada Ltd. and

Kingston Construction Ltd.



Respondents

(Respondents)








Before:



The Honourable
            Chief Justice Finch





The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Thackray







G. McDannold



Counsel for the Appellant

Greater Vancouver Water District







C.J. OConnor

R.J. Deane



Counsel for the Respondent

Graham Industrial Services Ltd.







M.B. Morgan



Counsel for the Respondent

Commonwealth Construction Canada Ltd.







M.G. Demers

W.S. McLean



Counsel for the Respondent

Kingston Construction Ltd.







Place and
            Date of Hearing:





Vancouver, British Columbia

December 1, 2003





Place and
            Date of Judgment:



Vancouver, British Columbia

January 7, 2004














Written
              Reasons by
:





The Honourable
            Chief Justice Finch





Concurred
              in by:





The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Thackray





Reasons for Judgment of the Honourable Chief Justice
        Finch:

I.  OVERVIEW

[1]

At
        the conclusion of hearing this appeal, the court dismissed the appeal
      with reasons to follow.  These are the reasons.

[2]

The
        appellant Greater Vancouver Water District (the Water District) appeals
        the judgment of the B.C. Supreme Court pronounced in favour of the petitioner
        Graham Industrial Services Ltd. (Graham) on 17 November 2003 in the following
      terms:

1.    A declaration that the tender submitted
        by Graham to the Water District dated 7 October 2003 fails to comply
      with the Instructions to Tenderers and as a consequence no contract was
      formed
        between Graham and the Water District in respect of the performance of
      the Capilano Pump Station Project;

2.    A declaration that Grahams tender dated 7 October 2003 was not
        capable of acceptance by the District for the award of the contract for
      the Capilano Pump Station Project.

[3]

Graham
        launched the petition on 3 November 2003, following the 7 October 2003
        opening of bids which the Water District had received in response to
      its call for tenders for the Capilano Pumping Station, Water Mains and
      69 KV
        Substation at Capilano Regional Park in North Vancouver.  Grahams bid
        of $21,451,881 was about $5,000,000 lower than the other three bidders.  Immediately
        after the bids were opened, Graham advised the Water District that its
        bid contained a $2,000,000 arithmetical error, and sought to withdraw it.  Graham
        subsequently took the position, in a letter to the Water District dated
        14 October 2003, that its bid did not conform to the tender requirements,
      and was therefore incapable of acceptance by the Water District.

[4]

On
        23 October 2003, the Water District advised Graham that it had reviewed
        the bids and considered the Graham bid to be without material defects.  Accordingly,
        the Water District awarded the project to Graham and forwarded the construction
        contract documents for signature.  According to the instructions to tenderers,
        if Graham did not execute and return the construction contract within
        ten days of receipt, it risked the loss of its bid bond (10% of the tender
        price) or an action for the difference between its tender price and the
      next lowest bid.

II.  DECISION OF THE CHAMBERS JUDGE

[5]

The
        learned chambers judge agreed with Graham that its bid was non-conforming
        in material respects.  He concluded that the Water District could not
        accept Grahams tender, and that, according to the Contract A/Contract
        B analysis
        of the tendering process set out in
Ontario v. Ron Engineering & Construction
        (Eastern) Ltd.
, [1981] 1 S.C.R. 111, 119 D.L.R. (3d) 267, 13 B.L.R.
        72 [
Ron Engineering
 cited to S.C.R.], no Contract A was
      concluded.

[6]

The
      instructions to tenderers contained the following terms:

Part 10     Conditions
        of Tender

10.1  If
        a Tender contains a defect or fails in some way to comply with the requirements
        of the Tender Documents, which in the sole discretion of the Corporation
        is not material, the Corporation may waive the defect and accept the
      Tender.

Part 13     Irrevocability
        of Offer

13.1  The Tender submitted by the Tenderer shall be
        irrevocable and remain open for acceptance by the Corporation for a period
        of 60 days from the Tender Closing, whether another Tender has been accepted
        or not. If at any time after 60 days from the Tender Closing, the Tenderer
        has not revoked its Tender in writing, the Corporation may accept the
      Tender.

13.2  If a Tenderer, for any reason whatsoever, purports
        to revoke its Tender within 60 days from the Tender Closing, or if for
        any reason whatsoever a successful Tenderer does not execute and deliver
        the Agreement in accordance with Section 00100, Clause 16.1, the Corporation,
        without limiting any other remedy it may have under the Tender Documents
      or otherwise, shall be entitled to:

(1)   exercise its rights under any Bid Bond and retain
        the amount payable to the Corporation under the Bid Bond as liquidated
      damages; or

(2)   require
        the Tenderer to pay to the Corporation an amount equal to the difference
        between the Tender price of its Tender and any other Tender which is
      accepted by the Corporation, if such other Tender is for a greater price,
      plus the
        total of all costs, expenses and damages, including legal fees on a solicitor
        and own client basis, incurred by the Corporation as a result of or related
      to such revocation or failure by the Tenderer.

Part 15     Acceptance
        and Rejection of Tenders

15.1  Notwithstanding any other provision in the Tender
        Documents, any practice or custom in the construction industry, or the
        procedures and guidelines recommended for use on publicly funded construction
        projects, the Corporation, in its sole discretion, shall have the unfettered
      right to:

(1)   accept any Tender;

(2)   reject any Tender;

(3)   reject all Tenders;

(4)   accept a Tender which is not the lowest Tender;

(5)   reject a Tender even if it is the only Tender
      received by the Corporation;

(6)   accept all or any part of a Tender; and

(7)   award all or a portion of the Work to any Tenderer.

15.2  Awards
        shall be made on Tenders that in the Corporations sole discretion give
      the greatest value based on quality, service and price.

[7]

I
        will adopt the chambers judges conventions and refer to section 10.1 as
        the Discretion Clause and sections 15.1 and 15.2 as the Privilege Clause
      throughout these reasons.

[8]

The
        learned chambers judge held that the Discretion Clause must be read to
        mean that the sole discretion of the Corporation to determine whether a
      defect or non-compliance was material was subject to objective scrutiny.

[9]

The
        provisions of the instructions to tenderers which the chambers judge held
      that Graham failed to comply with were Schedule 8, sections .6 and .7:


SCHEDULE
        8  TENDERERS TECHNICAL SUBMISSION                  continued

.6    With respect to the haul trucks that will be operating
        on Capilano Watershed Mainline Road, the Tenderer shall provide a three
        (3) page discussion covering the management of the hauling operation
      and mitigation of impacts to the residents of Nancy Greene Way with respect
      to noise, air emissions and road safety. Refer to Section 01130 and 01550.

(1)   Identify number, size and type(s) of haul vehicles,
      including model year;

(2)   Discuss factory installed or after-market noise
        and emission abatement equipment currently installed on vehicles and
      expected sound level in their current condition; additional noise and emission
      abatement
      control devices that will be added to meet the Specifications;

(3)   Radio control between all vehicles operating on
      the road;

(4)   Control of speed;

(5)   Any special vehicle parking required on the Work
      Site; and

(6)   Maintenance
      of all roads used exclusively by the Contractor for hauling in the watershed.

.7    Tenderer
        shall include a five (5) page outline of its intended Environmental Protection
        Plan (EPP), which is described in Section 01561  Environmental Requirements.
        This outline shall include plans for the protection of the environment,
        including procedures for surface water quality protection, waste management,
        spill contingency and response, the intended design and operational procedures
        for the containment, treatment and discharge of water and other requirements
        listed in that section. The outline shall also indicate any proposed
      water collection, pumping, conveyance, holding, treatment, and release
      systems
        and equipment proposed. The Tenderer shall indicate the size and location
      of any water treatment pond/facility.

[10]

Grahams
      response to the Schedule 8, section .6 tender requirements was as follows:

.6    With respect to using haul trucks within the Capilano
        Watershed Mainline we will comply with the specifications as prescribed
      in sections 01130 and 01550.

(1)   If we use off-road haul trucks we could use up
        to 5  VOLVO A35 articulated all wheel drive units, 1995 or newer models,
      with a rated payload capacity of 30 tonnes.

(2)   The trucks would be equipped with mufflers and
        tested before they were brought on site to ensure they met the noise
      restrictions as specified. They would also be equipped with catalyzed particulate
      traps
        as specified, or an approved equal, to those listed in section 01130
      paragraph 1.8.10.

(3)   All operators of the haul trucks will be equipped
        with radios and trained with their use to comply with the GVWDs operating
        procedures within the watershed as detailed in Section 01550 Appendix
      A.

(4)   For off-road trucks not equipped with standard
        speedometers we will provide our operators with calibrated charts that
      give the road speed vs rpm for a particular gear.

(5)   We will provide space within the construction
      limit for parking any off-road machinery while not in use.

(6)   We
        will maintain the roads we use for hauling. We intend to survey the road
        condition prior to our hauling activities and ensure it is returned to
      its original state, or better, on the completion of our activities.

[11]

Grahams
      response to the Schedule 8, section .7 tender requirement was as follows:

.7    For
        an outline of our Environmental Protection Plan please refer to Schedule
        L in the Stage 1 document. We will prepare a project specific plan in
      compliance with the specification sections 01561 following award of the
      contract.

The Schedule L referred to was a single page in a
        document filed during the prequalification stage of the tendering process.  It
        sets out examples of some of the environmental protection plans that Graham
        produced for other projects.  However, the trial judge found Schedule
      L to be unresponsive to the express requirements of section .7.

[12]

With
      respect to those responses, the learned chambers judge concluded:

[43]  I find that
        Grahams responses to Sections .6 and .7 of Schedule 8 of the Tender
        Form were so patently deficient they could not on an objective reading
      be said to conform in all material respects to the Invitation to Tender.

[44]  The Districts
        authority under the privilege and discretion clauses to determine non-compliance
        with Tender Form requirements is not material and must be exercised both
        in good faith and in [a] manner which can withstand objective scrutiny.
        Otherwise those clauses could be used to deem a non-compliant tender to
        be a compliant tender.  That would undermine the fairness of the tendering
        process.  Preservation of that fairness is the underlying rationale for
      the requirement for substantial or material compliance.

[45]  In light of
        my finding that Grahams tender did not conform in all material respects
        with Sections .6 and .7 of Schedule 8 of the Tender Form requirements,
      I need not consider the other alleged shortcomings of the Graham tender.

[46]  In light of the material non-compliance I have found, it follows
        that the District could not accept Grahams tendered offer and no Contract
      A was concluded.

The learned chambers
      judge therefore granted the declarations that Graham sought in its petition.

III.  PARTIES
        POSITIONS ON APPEAL

[13]

The
        Water District contends that the learned chambers judge erred in making
        and substituting his own analysis as to the adequacy of Grahams bid
      for that of the owner.  It contends that it was not open to the court to substitute
        its discretion for, or objectively scrutinize, the owners exercise of
        its sole discretion under the Discretion or Privilege Clauses.  It contends
        that the chambers judges conclusion is contrary to the express terms
        and conditions in the instructions to tenderers, contrary to the relevant
        authorities,
        and cannot be sustained in the absence of any allegation, evidence or
      finding of bad faith.

[14]

Graham
        submits that the decision of the learned chambers judge properly employed
        an objective test to scrutinize the Water Districts exercise of discretion
        and that such objective scrutiny discloses a material defect in its bid,
        rendering it incapable of acceptance.  The other bidders who were named
        as respondents in the original petition, Commonwealth Construction Canada
        Ltd. (Commonwealth) and Kingston Construction Ltd. (Kingston), support
        Graham in these submissions.  All three bidders submit that to construe
        the Discretion and Privilege Clauses as granting the Water District an
        unfettered discretion to determine which bids are compliant would undermine
      the integrity of the tendering process.

IV.  ANALYSIS

[15]

In
        my opinion, the learned chambers judge was correct to apply an objective
        test to the question of whether Grahams bid was non-compliant in a material
        sense.  Having found that the trial judge arrived at the correct test,
        I would not interfere with his application of that test and conclusion
        that, according to an objective analysis, Grahams bid was materially
      non-compliant.



(i)  Owners discretion subject to objective scrutiny

[16]

In
        my view, the Discretion Clause in the instructions to tenderers cannot
        permit the Water District to determine subjectively whether a defect
      is material.  This is not a matter of interpretation of the Discretion Clause.  Rather,
        the very Discretion Clause which the Water District seeks to rely on does
        not operate until a valid Contract A is formed.  The Discretion Clause
        can not, therefore, give the owner the power to reach back before the
        clauses operative existence and deem compliant a bid that is, on an
      objective analysis, materially non-compliant.

[17]

In
Ron
            Engineering,
supra
at 121-25
,
the Supreme Court
            of Canada introduced the now familiar Contract A/Contract B analysis
            for the tendering process.  Estey J. held that an owners invitation
            to tender constitutes an offer to all potential bidders.  A contract
            (Contract A) comes into existence when a contractor submits a tender
            in response to that offer.  The terms and conditions of Contract A
            are governed by the terms and conditions in the call for tenders, which
            usually include that if the owner accepts the contractors bid, the
            contractor will be obliged to enter the substantive construction contract
            (Contract B).  Contract A will also usually include a term that
            bids are irrevocable once submitted and provide for forfeiture of
            the bid
          deposit in the event a contractor attempts to withdraw its tender.

[18]

In
        his reasons, Estey J. noted that the rights of the parties, as set out
        in the terms and conditions of the tender documents, crystallize at the
        time a tender that is capable of acceptance is submitted.  He explained
      at 121-2:

If the tenderer has committed an error in
        the calculation leading to the tender submitted with the tender deposit,
at
        least in those circumstances where at that moment the tender is capable
        of acceptance in law
, the rights of the parties under contract A
        have thereupon crystallized.  The tender deposit, designed to ensure
        the performance of the obligations of the tenderer under contract A,
        must therefore stand
        exposed to the risk of forfeiture upon the breach of these obligations
      by the tenderer.

(emphasis added)

Estey J. continued at 122:

The significance of the bid in law is that
        it at once becomes irrevocable
if filed in conformity with the terms
        and conditions under which the call for tenders was made and if such terms
      so provide
.



(emphasis added)

[19]

It
        follows from this reasoning that if a bid is not filed in conformity
      with the terms and conditions under which the call for tenders was made,
      the
        rights of the owner under Contract A, such as the irrevocability clause,
        do not arise.  Indeed, Estey J. suggested at 121 that Contract A, and
        the parties rights under the terms of Contract A, would not come into
        existence
      where the bid fails materially to comply with the tender specifications:

I share the view expressed by the Court of Appeal that the integrity
        of the bidding system must be protected where under the law of contracts
        it is possible so to do.  I further share the view expressed by that Court
        that there may be circumstances where a tender may not be accepted as for
        example where in law it does not constitute a tender, and hence the bid
        deposit might not be forfeited.  That is so in my view, however, simply
        because contract A cannot come into being.  It puts it another way to
        say that the purported tender does not in law amount to an acceptance
        of the
        call for tenders and hence the unilateral contract does not come into
      existence.

[20]

He
      elaborated on this point at 125:

There may well be, as I have indicated, a situation in the contemplation
        of the law where a form of tender was so lacking as not to amount in law
        to a tender in the sense of the terms and conditions established in the
        call for tenders, and it may well be that such a form of tender could not
        be snapped up by the owner, as some cases have put it, and therefore
      it would not operate to trigger the birth of contract A.

See also Mr. Justice Major, The Law of Tendering: A
        View from the Supreme Court of Canada, (Paper presented to the Canadian
      Bar Association National Construction Law Conference, 2002) at 6.

[21]

The
        foregoing analysis prevents the Water District from relying on the Discretion
        Clause to render compliant a bid that is otherwise incapable of acceptance
        at law because of material non-compliance.  In this respect, the operation
        of the Discretion Clause is no different than the operation of the irrevocability
        provisions to which Estey J. makes reference.  The Water Districts right
        to rely on the Discretion Clause as a term of Contract A only arises if
        a valid Contract A is formed.  Contract A is only formed if a bid is, in
        Estey J.s words, capable of acceptance in law.  It is the submission
        of a compliant tender which establishes the legal relationship, Contract
        A, between the parties:
Sound Contracting Ltd. v. Nanaimo (City)
(2000),
        74 B.C.L.R. (3d) 239 (C.A.) ¶18.  Since the Discretion Clause does not
        operate before Contract A is formed, the determination of whether a bid
      is capable of acceptance in law must be based on an objective standard.

[22]

In
        my opinion, nothing in the Supreme Courts decisions in
M.J.B. Enterprises
        v. Defence Construction (1951) Ltd.,
[1999] 1 S.C.R. 619, 170 D.L.R.
        (4th) 577, 49 B.L.R. (2d) 1, 44 C.L.R. (2d) 163 [
M.J.B. Enterprises
]

and
R.
        v. Martel Building Ltd.
,
[2000] 2 S.C.R. 860, 193 D.L.R. (4th)
        1, 5 C.L.R. (3d) 161, 36 R.P.R. (3d) 175 [
Martel Building
]

alters
        the analysis of when Contract A will arise, and when the terms of the tender
        call become rights of the parties under Contract A, as established in
Ron
        Engineering
.  Although the court examined the effect of the privilege
        clauses at issue in
M.J.B. Enterprises
and
Martel Building
as
        matters of interpretation, in both of those cases the clauses related to
        the owners exercise of discretion
after Contract A arose
.  In
        neither case did the court address the ability of the owner to dictate
        subjectively
        when Contract A would arise through a discretionary term in the tender
      documents.

[23]

In
Kinetic
            Construction Ltd. v. Comox Strathcona (Regional District)
,
            2003 BCSC 1673 [
Kinetic Construction
] ¶41, a case relied
            on by the Water District, Preston J. recognized that a materially non-compliant
            bid is, in essence, merely a counter-offer.  It does not bring Contract
            A into existence, even where there is a clause that allows the owner
            to consider non-compliant bids.  This court reached a similar conclusion
            in
Midwest Management (1987) Ltd. v. B.C. Gas Facility Ltd.
(2000),
            82 B.C.L.R. (3d) 79, 5 C.L.R. (3d) 140, 2000 BCCA 589 (C.A.) ¶7-9,
            where it held that a bid that included a price structure which did
            not conform with the tender requirements was a counter-offer such
          that its submission did not give rise to Contract A.

[24]

In
Kinetic
            Construction,
supra
, the non-compliant bidder did
            not withdraw its counter-offer before the owner accepted it.  The litigation
            resulted when one of the unsuccessful bidders alleged that the owner
            breached Contract A by awarding Contract B to a non-compliant bidder.  However,
            in the case at bar, Graham revoked its counter-offer prior to the Water
            Districts purported acceptance of its bid; no legal contract could
            have possibly resulted.  Accordingly, I need not consider whether
Kinetic
            Construction
is correct to the extent that Preston J. found
            the discretion clause permitted the owner to accept a non-compliant
          bid without breaching its duty to treat other bidders fairly and equally.

[25]

The
        principles underlying the law of tendering articulated by the Supreme
      Court of Canada support the view that the Discretion Clause cannot be used
      to
        effect the creation of Contract A.  Since
Ron Engineering,
supra,
the
        focus of the Supreme Courts jurisprudence in this area has been protection
        of the integrity of the tendering process and ensuring that owners observe
        their duty to treat bidders fairly and equally:  see
Ron Engineering,
supra
at
        121;
M.J.B. Enterprises,
supra
¶41, 44;
Martel
        Building
, supra
¶88-89, 92, 100;
Derby Holdings Ltd.
        v. Wright Construction Western Inc.,
2002 SKQB 247, [2002] 9 W.W.R.
        126, 17 C.L.R. (3d) 64 [
Derby Holdings
], affd 2003 SKCA
      87; Major, The Law of Tendering,
supra
at 10-14, 18-19.

[26]

In
M.J.B.
            Enterprises,
supra
, these principles led the court
            to imply a term in Contract A that the owner would only accept compliant
            bids.  Iacobucci J., speaking for the court, emphasized the need to
            ensure that owners did not abuse their greater bargaining position
          to undermine the competitive nature of the tendering process, at ¶41:

The rationale for the tendering process, as can be seen from these documents,
        is to replace negotiation with competition.  This competition entails certain
        risks for the appellant.  The appellant must expend effort and incur expense
        in preparing its tender in accordance with strict specifications and may
        nonetheless not be awarded Contract B.  It must submit its bid security
        which, although it is returned if the tender is not accepted, is a significant
        amount of money to raise and have tied up for the period of time between
        the submission of the tender and the decision regarding Contract B.  As
        Bingham L.J. stated in
Blackpool and Fylde Aero Club Ltd., supra
at
        p.30, with respect to a similar tendering process, this procedure is
        heavily weighted in favour of the invitor.  It appears obvious to me
        that exposing oneself to such risks makes little sense if the respondent
        is allowed,
      in effect, to circumscribe this process and accept a non-compliant bid.

Major J. similarly notes in The Law of Tendering,
supra
at
      12:

In order to maintain the integrity of the tendering process, bidders
        must have some confidence that their efforts in preparing bids in conformity
        with the detailed tender specifications will not be thwarted by the acceptance
      of a bid that does not conform to those specifications.

[27]

In
        my view, giving the Discretion Clause the effect for which the Water
      District contends would allow the Water District and other owners to circumscribe
        the tendering process.  The mandatory requirements of the instructions
        to the tenderers would be completely negated if the Water District had
        the right to exercise its discretion to waive any defect or non-compliance
      by deeming material omissions to be non-material.

[28]

As
        Iacobucci and Major JJ. suggest, no bidder would participate in a tendering
        process in which the owner had the unreviewable, subjective right to
      deem patently non-compliant bids to be compliant bids.  The effect of such
      a provision would return the construction industry to the pre-
Ron Engineering
days
        where negotiation on undisclosed terms, rather than competition on specified
      terms, governed the tendering process.

[29]

The
        conclusion that the Discretion Clause cannot operate to bring a non-compliant
        bid into existence and thereby create Contract A does not introduce uncertainty
        into the tendering process.  Rather, it enhances certainty.  It ensures
        that the owner will only exercise its decision-making discretion in respect
        of bids that are materially compliant.  It also ensures that all contractors
        can be confident that their bids will receive fair consideration and be
        neither accepted nor rejected for arbitrary reasons.  In these respects,
        I consider that my conclusion protects the integrity of the tendering
      process.

[30]

What
        meaning, then, is to be given to the Discretion Clause?  In my view, the
        clause simply recognizes that the test for determining whether a tender
        is valid is one of substantial compliance rather than strict compliance.  The
        clause allows the Water District to accept tenders with minor irregularities
        or non-material defects.  This substantial compliance test is consistent
        with an objective analysis of whether Contract A has arisen:  see
Derby
      Holdings,
supra
¶34.

(ii)  Deficiencies in Grahams bid amounted
          to material non-compliance when assessed objectively

[31]

I
        would not interfere with the trial judges finding that the deficiencies
        in Grahams bid constituted material non-compliance with the terms of the
      instructions to tenderers.

[32]

Material
        is defined in the Concise Oxford Dictionary to be important, essential,
        relevant...concerned with the matter not the form of reasoning....  Blacks
        Law Dictionary, 7th ed. (West Group:  St. Paul, 1999) includes in the
        definition for material: of such a nature that knowledge of the item
        would affect
      a persons decision-making process; significant, essential.

[33]

This
        Court also considered the definition of materiality recently in
Inmet
        Mining Corp. v. Homestake Canada Inc.
, 2003 BCCA 610, [2003]
        B.C.J. No. 2588 ¶27.  In the context of determining disclosure obligations
        of a seller under a contract for purchase and sale of a gold mine, Levine
      J.A. held that a material fact is one where there is

...a substantial likelihood that disclosure of the omitted fact would
        have assumed actual significance in the deliberations of the reasonable
        purchaser, or would have been viewed by the reasonable purchaser as having
      significantly altered the total mix of information made available.

[34]

According
        to these definitions, in the context of the present case, material non-compliance
        will result where there is a failure to address an important or essential
        requirement of the tender documents, and where there is a substantial likelihood
        that the omission would have been significant in the deliberations of the
      owner in deciding which bid to select.

[35]

Grahams
        responses to requests for details of its proposed management of the hauling
        operation and mitigation of impact, and environmental protection plan,
        were not merely a matter of non-compliance in form.  They amounted to a
        perfunctory we will comply response to questions seeking detailed plans
        on substantive and important matters.  Among other deficiencies, Grahams
        response said nothing about the mitigation of impact to the residents of
        Nancy Greene Way with respect to noise, air emissions and road safety.  In
        addition, it includes absolutely no site specific information regarding
        an environmental protection plan, let alone the detailed five page outline
        as stipulated in the tender documents.  The other contractors expended
        considerable resources on meeting these requirements.  In these circumstances,
        I agree with the learned chambers judge that there was material non-compliance.  Grahams
        responses could not reasonably be said to conform in any material way
      to the requirements in Schedule 8.









V.  DISPOSITION

[36]

The
        learned chambers judge applied the correct test and properly concluded
        that the deficiencies in Grahams bid were material and therefore rendered
        it incapable of acceptance.  These are my reasons for dismissing this
      appeal.







The Honourable
Chief
      Justice Finch







I Agree:







The Honourable
Mr. Justice Mackenzie







I Agree:







The Honourable
Mr. Justice Thackray




