Compliance of a bid depends on the compatibility of two sets of
documents: the call-for-tender documents and the documents
comprising the bid. Two recent cases are indicative of the range of
issues our courts are called upon to decide in this area.
The mystery of the missing bank draft
The first of these decisions dealt with a compliance
C.F.G. Construction Inc. ("CFG") was the lowest bidder
for a demolition contract to be awarded by the
Société immobilière du Québec
(the "SIQ", now called the Société
québécoise des infrastructures). CFG was
"stunned" to learn it was not awarded the contract, on
the grounds that its bid did not include the bid surety required by
the call-for-tender documents. According to CFG, a bank draft for
that purpose had been enclosed in the envelope containing its bid
documents. The SIQ persisted in maintaining that no bid surety had
been provided, and rejected CFG's bid as non-compliant. Who was
in the wrong here?
On June 5, 2015, after hearing the evidence, the Court of
Québec concluded that CFG had in fact included a bank draft
with its bid, such that the bid should have been deemed
In its decision, the Court criticized the four-day delay between
the opening of the bids and the SIQ's compliance analysis of
them. During that time, the handling of the bids by SIQ employees
heightened the risk that documents would be misplaced, and that the
envelopes containing the bid documents might be tossed into the
recycling bin. Is that what happened? Had CFG's bank draft been
Ultimately, the Court found that the SIQ was liable for the
damage caused by the loss of the bank draft. The judge accordingly
awarded $25,000 to CFG to compensate it for the profit it would
have earned had it performed the contract.
On July 16, 2015, the motion for leave to appeal that judgment
was dismissed2, as the matter was "primarily
factual" in nature, and the trial judge's conclusion that
a bank draft had been included with the bid documents was the
cornerstone of his judgment.
The mystery of the missing bank draft was thus solved.
Is your attestation from Revenu Québec valid?
The second decision deals with an eligibility
The Société québécoise des
infrastructures (the "SQI") issued a public call for
tenders for the construction of an office building that it would
lease for 15 years, with an option to renew the lease for a further
When the bids were opened, Corporation de
Développement Bertone ("Bertone") was the
lowest bidder, but its attestation from Revenu Québec was
missing. The following day, Bertone contacted Revenu Québec
in this regard, in order to render its bid complete. The SQI
considered however that it was too late for Bertone to do this, as
Bertone was not able to provide it with an attestation issued
prior to the deadline for the receipt of bids.
This was an eligibility condition that was clearly stipulated in
the call-for-tender documents. Bertone's bid was thus
Bertone then filed a motion for a declaratory judgment in order
to have the compliance of its bid judicially acknowledged, and a
motion for an injunction to suspend the tender process until that
judgment was rendered.
On July 3, 2015 judge Gibeau dismissed Bertone's motion for
the interlocutory injunction3. The judge concluded that
a bidder who has submitted an attestation from Revenu Québec
after the deadline for the receipt of bids has no
prima facie case at the interlocutory stage. This irregularity on
the part of Bertone was fatal to the eligibility of its bid. Where
an attestation from Revenu Québec is missing, a grace period
can be accorded the bidder, provided the attestation eventually
submitted was issued by Revenu Québec for no more
than 90 days before the deadline for the submission of
Thus, before submitting a bid, it is important to request an
up-to-date attestation from Revenu Québec, as failing to do
so could result in the bid being rejected as ineligible.
1 CFG Construction inc. v. Société québécoise des infrastructures, 2015 QCCQ 4995
2 Société québécoise des infrastructures v. CFG Construction inc., 2015 QCCA 1179
3 Corporation de développement Bertone inc. v. Société Québécoise des infrastructures, 2015 QCCS 3139
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).