Canada: Notices Of Qualification And Applications For Qualification Governed By The Act Respecting Contracting By Public Bodies: The Court Of Appeal Clarifies The Rules

Public bodies subject to the Act respecting contracting by public bodies1 may add a preliminary step to evaluate the qualifications of contractors and service providers interested in entering into contracts with them. During this step, the public body (the prospective client) publishes a notice of qualification and then studies the applications for qualification submitted in response to determine which contractors are sufficiently qualified to carry out a project or class of work. Only those contractors demonstrating that they have the required qualifications will be authorized to submit a tender during the actual call for tenders phase.

When no tender has yet been formally submitted, what are the rules governing this screening process? In the ruling Demix Construction, division de Holcim (Canada) inc. c. Québec (Procureur général)2 rendered on October 19, 2010, the Quebec Court of Appeal resolved any uncertainty regarding this step by clearly stating that the general principles governing calls for tenders are applicable during the notice of qualification and application for qualification stage.

The facts

The facts underlying this decision are straightforward. Demix Construction (Demix) submitted an application in response to a notice of qualification published by the Ministry of Transport (Ministry), but, inadvertently and in good faith, omitted to enclose a one-page document containing a series of undertakings and a declaration by the person signing the application for qualification. The notice of qualification indicated that the one-page document was an [translation] "essential required" document, and that the application would automatically be rejected if it was missing. When Demix became aware of the omission and was informed that its application had been rejected, it provided the document, but only after the application for qualification deadline had passed. Citing the provision of the notice of qualification giving the public body the discretion to disregard any defect in form that it deemed minor, Demix asked the Ministry to reverse its decision. Backed by the opinion of its legal department, the Ministry refused to reconsider its initial decision to reject Demix's application.

After the Quebec Superior Court dismissed Demix's motion to quash the Ministry's administrative decision rejecting its application,3 Demix decided to take its case to the Quebec Court of Appeal. The contractor maintained that notices of qualification and applications for qualification should not be governed by the same compliance requirements as calls for tenders. According to Demix, this step should only be used to verify the qualifications of interested contractors. Therefore, an application containing an irregularity that does not raise concerns about a contractor's qualifications should not be excluded. Demix felt that, in any case, regardless of the applicable rules, the omission amounted to a minor defect that did not prevent the prospective client from evaluating Demix's qualifications. The appellant argued that the Ministry should therefore have used the discretionary power that it retained in the notice of qualification to disregard Demix's failure to comply with the requirement in question.

The Ministry argued that the notice of qualification clearly indicated that omitting this "essential required" document was a cause for peremptory rejection. In the Ministry's opinion, its omission was also a major defect that did not warrant the exercise of its discretionary power.

The decision of the Court of Appeal

In a unanimous decision, the Court of Appeal found that the qualification procedure for calls for tenders subject to the Act respecting contracting by public bodies is not a separate process from the call for tenders, but is rather, along with the subsequent bid, one of two steps in the tendering process. The court relied, in particular, on the sections of the Regulation respecting construction contracts of public bodies4 (Regulation) which specifically provide for the possible splitting of a call for tenders into two steps. The same general principles that govern calls for tenders therefore apply to notices of qualification and applications for qualification. Consequently, splitting a call for tenders into separate steps does not change these general principles, including equal and fair treatment of all tenderers:

[translation] Splitting the tendering mechanism into two steps cannot negate all the principles that would ordinarily apply to a call for tenders – in particular, the equal and fair treatment of competitors. The process put in place here is one of successive screenings, which simply requires adapting the general rules developed by case law.5

The Court of Appeal also pointed out that section 7 of the Regulation sets out the compliance requirements that are to be included in the tender documents and for which non-compliance will entail automatic rejection of a tender. These conditions include the absence of a required document or required signature:

7. Compliance requirements must specify the cases that will entail automatic rejection of a tender, namely:


(2) a required document is missing;


(4) the required signature of an authorized person is missing;


(7) any other compliance requirement stated in the tender documents as entailing automatic rejection of a tender has not been complied with.

[Our underlining]

Section 7 therefore gave the Ministry the right to specify, as it did in its documents, that a failure to provide documents qualified as "essential required" and a missing signature would entail peremptory rejection of an application for qualification. In this instance, the contractor had inadvertently failed to meet these two requirements.

Moreover, Demix argued that the omission amounted to a minor defect covered by the Ministry's discretionary power. In section 10 of the notice of qualification, the Ministry did, in fact, retain [translation] "complete discretion to disregard any defect in form of the Application for Qualification and the accompanying documents that it deems to be minor."

The Court of Appeal dismissed this argument for two reasons. First, when a notice of qualification states requirements for which a failure to comply entails peremptory rejection of an application, it does not matter how serious the failure to comply is: the requirement is met or it is not met. Such "complete discretion," often included in contingency clauses, may not be used to address a failure to comply with any such requirement. Second, the court determined that the failure to comply with such requirements amounted, in any case, to a major defect as the published document was the only means the Ministry had of verifying certain undertakings made by the contractor.

Scope of the decision

This Court of Appeal's ruling, which confirmed the Superior Court's judgment dismissing the motion to quash an administrative decision, clarifies the rules that apply at the notice of qualification and application for qualification phase. Reiterating the importance of section 7 of the Regulation relating to the Act respecting contracting by public bodies, the ruling insists on the public bodies' right to set out certain formal and substantive requirements for which non-compliance would entail automatic rejection of an application for qualification. Businesses responding to such notices of qualification must therefore bear in mind that when a tendering process is divided into two steps, the principle of equal treatment of tenderers requires strict enforcement of compliance requirements.


1. LRQ, c C-65.1.
2010 QCCA 1871 (CanLII), jj. François Doyon, Marie-France Bich et Guy Cournoyer (ad hoc) (Demix Construction).
2010 QCCS 3183 (CanLII), j. Pierre-C. Gagnon.
4. RRQ, c C-65.1, r 5, art 22, 26, 36-38.
5. Demix Construction, supra note 1, para 21.

Norton Rose OR LLP

Norton Rose OR LLP is a member of Norton Rose Group, a leading international legal practice offering a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia Pacific, Canada, Africa and the Middle East.

The Group's lawyers share industry knowledge and sector expertise across borders to support clients anywhere in the world. The Group is strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

Norton Rose Group has more than 2600 lawyers operating from 39 offices in Abu Dhabi, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Brisbane, Brussels, Calgary, Canberra, Cape Town, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose OR LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

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

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.