In public construction tenders, the integrity of the process must take precedence over the pursuit of the lowest price. A recent decision involving the City of Lévis (the “City”) confirms this: the lowest bid may be rejected if it fails to meet an essential requirement at the time of submission.

This decision is a clear reminder to contractors that initial non-compliance of a tender can have serious consequences, including the loss of a contract.

How two missing wheels sparked a tendering dispute

On July 19, 2022, the City issued a call for tenders for a snow removal contract in the Pintendre district. The specifications required bidders to have a six-wheel-drive grader for the duration of the contract.

When Excavation Marcel Vézina Inc. (“Vézina”) submitted its bid, the company owned only a four-wheel-drive grader—something not disclosed in its tender documents. As the lowest bidder at the opening, Vézina was slated to be awarded the contract, with adjudication scheduled for mid-September of that year.

After the bid opening, however, the City requested clarification regarding Vézina’s equipment. On August 26, Vézina submitted a new schedule stating that it had since acquired the required six-wheel-drive grader.

Despite those changes, the City awarded the contract to the second-lowest bidder, finding Vézina’s bid non-compliant at the time of submission. Vézina contested the decision, arguing that the modification was permitted and that its bid should have been accepted.

1. Parties’ positions

Vézina maintained that its bid was compliant, even though the proper equipment was acquired only after submission. Vézina claimed that a clause in the specifications allowed for corrections and that its actions did not compromise the integrity of the process.

The City responded that Vézina’s bid contained a major irregularity, as it failed to meet an essential requirement of the specifications. It further argued that the specifications expressly prohibited modifications during the 120-day validity period following submission.

2. Court’s decision

Relying on principles established in case law, the court held that the requirement to own a six-wheel-drive grader was an essential condition of the call for tenders because:

  • It was described as “required” in the tender documents.
  • It was directly tied to the expected performance in an area with harsh winter conditions.
  • It was explicitly mentioned in Schedule A of the specifications, which required proof of ownership or lease for the duration of the contract.

The court rejected Vézina’s argument that it was entitled to modify its bid after the opening. The clause it relied on allowed corrections only at the City’s request, and another clause expressly prohibited unilateral modifications of bids for 120 days following the opening. The court concluded that Vézina had attempted to illegally modify its bid in order to make it compliant after the tender closed.

In doing so, Vézina undermined the principle of equal treatment of bidders. This was unfair both to those who had complied with the requirements when they submitted their bids and to potential bidders who refrained from bidding because they did not meet the requirements.

Vézina’s failure to acquire the required grader before submitting its bid was therefore a major irregularity that created a risk of prejudice to other bidders. The court upheld the City’s decision not to award the contract to Vézina and dismissed the company’s claim.

Bottom line

The integrity of the tendering process depends on the immutability of bids. A bidder who fails to meet an essential requirement at the time of submission cannot be awarded the contract, even if that requirement is met by the time of adjudication.

Safeguard your ability to secure contracts. Miller Thomson’s Construction Litigation team supports you through every stage of the tendering process, helping you navigate compliance issues and protect your interests. Contact us today for guidance on safeguarding your projects and minimizing risks.