Procurement and Contracts

Our Group

The lawyers in Miller Thomson’s Construction and Infrastructure Group provide ongoing legal advice during the proposal/bid preparation stage and extending through bid closing, evaluation, selection and award of contract, as well as contract preparation. Usually, procurement and contracts go together  —  one flowing from the other. And, both flow from the decision made about the execution structure that will be employed to complete the project.

Our Expertise

Contracts: The array of available construction contracts — reflecting the client’s decision on the execution strategy — range from those between the owner and its consultants to the contracts that will be necessary to take the project to construction execution. Such contracts run from lump-sum, cost plus, design-build, construction management, EPC contracts (engineering, procurement, construction) through to P3 agreements, also known as AFPs. Our familiarity with all manner of execution strategies has made us adept with standard form contracts such as those published by CCDC, CCA, RAIC and ACEC, to name a few. For most of these standard forms, we recommend and develop supplementary conditions based on the requirements of the project. But, we also recognize when a “custom-built” contract is necessary and we have the expertise to put it together.

Procurement: Procurement is not for the faint of heart. Since Ron Engineering was decided in 1981, procurement has become a battleground in the construction sector and almost anywhere else procurement is undertaken. We understand the procurement playing field and when it is and is not appropriate to employ a procurement model that invokes the “bid contract” described in Ron Engineering.

Like the selection of the project execution strategy, the decision on the procurement model should be based on the needs and requirements of both the owner and the project for which the procurement is being conducted. Whether our client is securing the services of a professional consultant or putting a completed set of drawings and specifications out for competitive tendering, we have the tools required to put together a procurement mechanism which will best serve our client’s needs and, where the “bid contract” is invoked, reduce the exposure of the owner in the event it makes process mistakes. There is no one right answer — each procurement needs to be assessed against the backdrop of what is being procured, the needs of the owner for flexibility or for discipline, and the owner’s tolerance for risk.