Comment on the Superior Court’s decision in 9006-9311 Québec inc. c. Ville de Boisbriand (2023 QCCS 2109)

On June 13, 2023, the Superior Court issued an important decision on a call for tenders and, in particular, on the advisability of a client to correct certain information contained in a bid. 

The main facts of the case:

In 2019, the City of Boisbriand (the "City") launched a call for tenders to transform a church into a cultural creation center. Three corporations submitted a bid, including the plaintiff, 9006-9311 Québec Inc. ("Devcor") and Groupe Piché Construction inc. ("Groupe Piché"). Devcor submitted the lowest bid and Group Piché, the second lowest, by a small margin.

However, once the bids had been submitted, the City analyzed them and corrected what it considered to be calculation errors in the various bid slips. As a result of these corrections, Groupe Piché ended up being the lowest bidder by a small margin and was therefore awarded the contract by the City.

Devcor is therefore suing the City on the grounds that the City was not entitled to correct the Groupe Piché’s bid, and that the latter was not in compliance with the tender documents.

1) Rectification of Calculations by the City

The City made corrections to the calculations of the bid slips on the basis of section 2.10 of the specifications, which authorizes a correction to the total amount of the bid in the event of an addition or multiplication error. This provision also specifies that the unit price (compared to the lump sum price, which includes costs and profit) prevails in the event of a discrepancy.

The calculation errors alleged by the City arose from the fact that, for all items, there was a systematic difference of 11.9% between the unit price (the cost of one unit of a particular item) and the total price for that item. As a result, the City’s representative responsible for verifying the compliance of the bids reperformed the calculations based on the unit price and substracted nearly $20,000 from the total price of the Groupe Piché’s bid. However, the Court noted that the difference between the unit price and the total price was due to the fact that Groupe Piché had made an error in filling out the slip and had probably omitted to indicate its profit in the unit price. This explains the systematic deviation of 11.9% from total prices.

The Court therefore concludes that it was not a clerical calculation error, but rather an error in the use of the slip. It seemed obvious that Groupe Piché wanted to include this 11.9% profit in its costs. Thus, the actual amount of the price submitted by Groupe Piché was in the total prices, and not in the unit price. As a result, the City could not consider that these were calculation errors within the meaning of section 2.10 of the specifications and therefore had no right to correct the prices in the Groupe Piché’s bid. Devcor was therefore the lowest bidder and should have been awarded the contract:

[43] I therefore conclude that the City could not avail itself of section 2.10 of the General Specifications to change the Groupe Piché’s bid total with respect to the unit price items, as this was not a calculation error.

[44] Devcor was therefore the lowest bidder and the contract had to be awarded to it under sections 573 et seq. of the Cities and Towns Act, provided that its bid was compliant.

2) The Groupe Piché’s Non-Compliant Bid

Devcor also claimed that Group Piché’s bid was not compliant, as key documents were missing, such as addenda pages and stenographic slips.

The bid form clearly indicated the list of documents to be attached to the bid, on pain of automatic ineligibility. One of the first elements of this list mentioned the addenda completed and initialled on each page by a representative of the bidder. It was also requested to attach detailed unit price sheets of the stenographic elements.

Applying the principles established by the Court of Appeal in Tapitec, the Court concluded that the essential nature of these documents was clearly apparent from the tender form, which expressly stated the essential nature of each page of each addendum to be initialled and detailed records of unit prices of the stenographic elements.

As a result, these irregularities were major according to the Tapitec test and, in addition to not being the lowest, Group Piché’s bid was not compliant.

3) The Recourse in Warranty by the Consortium of Architects

In the event that it was held liable, the City had called in warranty the consortium of architects (the "Consortium") that assisted it in verifying bids.

The Court pointed out that the first recommendation of the Consortium for the selection of the successful bidder was Devcor, which had submitted the lowest bid. The Consortium recommended Group Piché in a second step, as the latter had become the lowest bidder, according to the City representative. However, the changes to the calculations were made by the City and imposed on the Consortium, which was reluctant to reverse the order of bids on this basis. The City convinced the Consortium otherwise by invoking section 2.10 of the specifications.

The Court therefore considered that the City could not accuse the Consortium of having incorrectly applied section 2.10, as the City representatives convinced the Consortium to change its initial recommendation. In addition, the City had specifically indicated to the Consortium that its representatives would verify the compliance of the bids.

The contract of services between the City and the Consortium states that the Consortium must analyze the bids received, but in fact, the Court found that the mandate was limited to verifying the prices of the items on the bid slips, according to the specific instructions of the City.

The Court noted, however, that the fact that the Consortium confirmed by email the compliance of the Groupe Piché’s bid constituted a professional malpractice but concluded that such misconduct was not causal to the damage suffered, particularly since the City representatives included a lawyer, much better placed, by virtue of her status, to ascertain the non-compliance of the Groupe Piché’s bid.

Thus, on the one hand, the analysis of the bid compliance was the responsibility of the City according to its instructions, and on the other hand, the City was able to see itself the non-compliance of the Groupe Piché’s bid. The Court therefore dismissed the City’s recourse in warranty against the consortium of architects.

Conclusion

It must be noted from this case law that, in accordance with the principle of equality between bidders, a client must act with great caution before making corrections to bid slips.