Docket:
T-1494-12
Citation:
2013 FC 1287
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 24, 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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ASPHALTE ABC RIVE-NORD INC.
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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and
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ROBERT & GILLES DEMERS INC.
and
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PAUL MIHALCEAN
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The dispute that this Court is being asked to
adjudicate is really between Asphalte ABC Rive-Nord Inc. and Robert &
Gilles Demers Inc. The other two respondents, Paul Mihalcean and the
Attorney General of Canada have a secondary role. Mr. Mihalcean is the
real estate agent whose services were retained by Public Works and Government
Services Canada to sell three parcels of land. The applicant and the principal respondent
are disputing the ownership of these parcels of land, which was the subject of
a form of call for tenders to purchase on the part of the respondent, the
Attorney General of Canada, with the assistance of Mr. Mihalcean.
[2]
The applicant Asphalte ABC Rive-Nord Inc.
[Asphalte ABC] is challenging the decision of Public Works and Government
Services Canada [PWGSC] dated July 18, 2012, in which it accepted an improved
promise to purchase the three parcels of land on the part of the respondent
Robert et Gilles Demers Inc. [Demers Inc.].
[3]
Ultimately, the entire debate in this case
relates to when Demers Inc. submitted its improved promise to purchase. As we
will see, the 10% deposit was not presented at the same time as the documents
required for Demers Inc.’s improved promise to purchase. A certified cheque for
$30,000, which completed the deposit of $205,000 that had already been paid, arrived
a few minutes after 2 p.m. on July 12, 2012. The issue is whether the
time limit for submitting improved bids was so imperative that the delay of a
few minutes invalidated Demers Inc.’s improved bid.
Facts
[4]
On June 2, 2012, PWGSC entered into a
brokerage contract with Mr. Mihalcean to list three parcels of land for
sale that could be operated as a sandpit. Interested parties were to submit a
promise to purchase and pay a deposit equivalent to 10% of the price offered.
[5]
A period of 30 days was allocated to permit
interested parties to submit promises to purchase. Three promises to purchase
were recorded. The applicant submitted one for $900,000, which was the minimum
required under the terms of the listing. Demers Inc. submitted a promise to
purchase for $2,050,000. A third business submitted a promise to purchase, but
its involvement was negligible, and it is not involved in this dispute. Both
the applicant and Demers Inc. deposited the required deposits, i.e. $90,000 and
$205,000. It is not disputed that these promises to purchase complied with the purchase
conditions established by PWGSC.
[6]
On or about July 4 , 2012 (letters were
sent on July 3 and 4, but there is no argument about that), PWGSC put in
place a process for improving bids that was aimed at the three companies that
had submitted promises to purchase.
[7]
There was not much documentation used to
establish the selected process. It consisted of a letter sent to the three
initial bidders. The letter stated that other bids for the listed property had
been received and that bidders were being given the opportunity to improve
their bids. The letter amended the wording of the promise to purchase, which
was standard wording, to make some additions that are not germane to this
application.
[8]
The important paragraph for our purposes reads
as follows:
[translation]
If you wish to do so,
please send your new proposal before 2 p.m. on July 12, 2012, to the
attention of Paul Mihalcean whose coordinates are listed below. The new
proposal must be submitted in a letter signed by the acquirer. In accordance
with the “PRICE” provisions of the promise to purchase, a new certified cheque
or bank money order payable to the Receiver General of Canada must be attached
to comply with the deposit of 10% of the purchase price. The purpose of this initiative
is solely to increase your bid and does not negate your promise to purchase.
[9]
As a result of this offer [translation] “to improve”, Asphalte ABC and
Demers Inc. opted to enhance their bids. Asphalte ABC increased its promise to
pay from $900,000 to $2,260,000. It therefore attached to its improved bid a
cheque for $136,000. As for Demers Inc., it improved its bid by $300,000, to $2,350,000.
A cheque for $30,000 was also prepared.
[10]
Asphalte ABC made an appointment with Mr. Mihalcean
for July 12 at 1 p.m. It was Mr. Mihalcean who went to Asphalte
ABC’s office and who received the improved bid to purchase. An appointment had
also been made with Demers Inc. for 1:30 p.m. the same day. However, that
appointment was to take place in an office that Mr. Mihalcean had access
to, in Saint-Jérôme, a few kilometres from Asphalte ABC’s offices. The Saint-Jérôme
office was also some distance from the premises occupied by Demers Inc.
[11]
It appears that the first meeting at 1 p.m.
took some time because Mr. Mihalcean, accompanied by his son, had to rush to
his Saint-Jérôme office in order to arrive before 2 p.m.. He waited there
for Eric Demers, one of Demers Inc.’s representatives, who was in
possession of two documents: the amended promise to purchase for $2,350,000 and
a corporate resolution authorizing it. However, the cheque required to improve Demers
Inc.’s bid, which constituted a deposit on it, did not arrive until a few
minutes after 2 p.m.. For reasons that were explained with difficulty,
Robert Demers, another representative of Demers Inc., had a cheque for
$30,000 certified at 12:45 p.m. on July 12 but chose to have a quick lunch
before driving to Saint-Jérôme. Traffic problems were the explanation for why
he was not present at 2 p.m.
[12]
There is no dispute that Mr. Mihalcean sent
the improved bids to purchase submitted by Asphalte ABC and Demers Inc. later
in the afternoon of July 12. Indeed, it appears that the facsimile
transmission took place around 4 p.m. PWGSC was not told that Demers Inc.’s
cheque had been delivered after 2 p.m.. PWGSC accepted Demers Inc.’s bid,
the one that had the highest purchase price, with a difference of $90,000.
Remedy
[13]
The applicant is disputing PWGSC’s decision to
accept Demers Inc.’s bid. It chose the remedy of an application for judicial
review under paragraphs 18.1(4)(b) and (e) of the Federal
Courts Act, RSC 1985, c. F-7 (the Act). They read as follows:
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18.1 (4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
(b) failed to observe a principle of natural justice, procedural
fairness or other procedure that it was required by law to observe;
(e) acted, or failed to act, by reason of fraud or perjured
evidence; or
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18.1 (4) Les mesures prévues au paragraphe (3)
sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le
cas:
b) n’a pas observé un principe de justice naturelle ou d’équité
procédurale ou toute autre procédure qu’il était légalement tenu de
respecter;
e) a agi ou omis d’agir en raison d’une fraude ou de faux
témoignages;
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[14]
From the outset, the applicant’s theory of the
case included allegations of misconduct between the respondent Demers Inc. and
the respondent Paul Mihalcean. In its notice of application, the applicant
alleged the following at paragraph 17:
[translation]
17. In addition, ABC has reasonable
grounds to believe that the Agent or his son could have told Sablière (i.e.
Demers Inc.) the amount of the improved promise.
[15]
Moreover, the case was conducted by the
applicant to attempt to prove this allegation. The cross‑examinations on
affidavit largely dealt with this alleged possibility.
[16]
Not only did the cross‑examinations on
affidavit not advance this part of the theory of the case, but the applicant
was not able to counter the evidence in the record that the certified cheque for
$30,000, which completed Demers Inc.’s deposit of $235,000, was issued at
12:45 p.m. on July 12, 2012. Mr. Mihalcean did not become aware
of the applicant’s improved bid to purchase until between 1 p.m. and
1:40 p.m., well after the cheque had been issued. Coordination between Mr. Mihalcean
and Demers Inc. would have been necessary to adjust the bid to purchase and to
prepare a certified cheque after 1 p.m.. This was not the case since the
cheque was issued before.
[17]
The applicant was unable to explain how there
was any fraud or perjured evidence in this case. We are faced with unproven
allegations that, prima facie, are directly contradicted by the
essential piece of evidence, the certified cheque, which shows the time of its
issuance well before the meeting that would have enabled, in the applicant’s
own words, the vital information to be given to Demers Inc.
[18]
The time of issuance, if it is false, would
certainly be evidence of fraud. But it was not disputed. There is no evidence
before this Court of perjured evidence. The allegations of fraud were not
proven, far from it. It follows that the entire theory of the case implicating
misconduct between 1 p.m. and 1:45 p.m. must be completely set aside.
[19]
The other argument based on paragraph 18.1(4)(b)
of the Act remains. The issue to be determined is whether the process chosen by
PWGSC was such that any deviation, no matter how minimal, at the time the improved
bids to purchase were received, set for 2:00 on July 12, 2012, disqualified
the improved bid, leaving in place only the initial promise to purchase.
[20]
In my view, that is the only question the Court
must answer. The allegations that the applicant tried to keep the real estate
agent as long as possible between 1 p.m. and 2 p.m. are of no importance.
His (and his son’s) excessive speed to get to their meeting are also of no use
to the debate. The reasons why the person who brought the cheque, Robert Demers,
was late are also not helpful in resolving the debate.
[21]
What matters is that the parties agree that the
certified cheque, which completed Demers Inc.’s improved offer to purchase, did
not arrive until about 2:05 or 2:10 p.m. Does this defect disqualify Demers
Inc.’s improved bid?
Arguments
[22]
The applicant makes a simple argument. It
submits that the process put in place by PWGSC, which is similar to, or is, a
call for tenders, means that the procedure created thereby required it to
accept the promise to purchase that complied with the mandatory terms. There
can be no deviation. Here, the $30,000 cheque, which was an essential part of
the improved bid, was submitted late. That, says the applicant, is fatal.
[23]
The applicant gave a detailed presentation,
submitting that
(a) this was really a call for tenders because the process selected met
the conditions in M.J.B. Entreprises Ltd. v Defence Construction (1951),
[1999] 1 S.C.R. 619 [MJB Entreprises];
(b) the jurisprudence of the Supreme Court of Canada has established the
existence of two contracts (contract A and contract B) in calls for
tenders, with the result that an offer that complies with the call for tender
may give rise to legal obligations. As was said in The Queen (Ont.) v Ron
Engineering, [1981] 1 S.C.R. 111, “The principal term of contract A is the
irrevocability of the bid, and the corollary term is the obligation in both
parties to enter into a contract (contract B) upon the acceptance of the
tender”;
(c) this theory of contracts A and B was received in Quebec to the
extent of its compatibility with Quebec civil law (Mercier c Raby, 2008
QCCA 1830 [Mercier]). It may be a convenient framework for examining the
legal acts that constitute a call for tenders;
(d) the applicant submits that, in any event, even without the theory of
contracts A and B, the same result is reached using only the offer and
acceptance rules in civil law;
[24]
Applying the theory of contracts A and B, the
applicant correctly points out the decision‑maker’s implied obligation to
treat all bidders fairly (Martel Building Ltd. v Canada, 2000 SCC 60;
[2000] 2 S.C.R. 860 [Martel Building]). It follows that only compliant bids
may be considered.
[25]
In the applicant’s view, the obligation to treat
all bidders fairly, which implies that only compliant bids may be considered,
becomes an obligation to reject a bid where one of the components was not filed
prior to the exact time set out in the offer to improve made by PWGSC in its
letter of July 4, 2012.
[26]
The applicant also relies on the administrative
law theory of legitimate expectations. This argument seems to me to be the first
cousin of the preceding argument. The theory is that when the federal
government decides on a formal process it must follow that process, and the
parties will have a legitimate expectation that this will be the case. Discretion
is limited by the process the decision‑maker used.
[27]
The principal respondent, Demers Inc., agrees
that the theory of contracts A and B applies in this case. The less formal
nature of the procedure that was adopted does not change the intrinsic quality
of the mechanism: there was a call for tenders to which Demers Inc. responded.
[28]
But the irregularity at issue here, a delay of barely
a few minutes in depositing a component of the improved bid, where the
intention to improve was clear long before, cannot be fatal. For Demers Inc.,
the obligation to treat all bidders fairly and on an equal footing does not
prevent the receipt of a cheque improving an offer that does not adversely
affect the adjudication process.
[29]
In addition, the principal respondent relies on
authorities, in particular, R.P.M. Tech inc. c Gaspé (Ville), J.E.
2004-1072, REJB 2004-60675 (CA) [RPM Tech inc.], that support its
contention that not all non‑compliance is fatal.
[30]
Since the irregularity, a delay of five to ten
minutes, did not adversely affect the other bidders or the process, there is no
need to intervene, says Demers Inc.
[31]
As for the other respondents, their involvement was
minimal. The respondent Paul Milhacean, although he admits not informing
PWGSC that the deposit cheque had arrived a few minutes late, submits that his
role was minor and that he was not a decision‑maker. PWGSC is not siding
with anyone. The Attorney General refuses to say whether his decision to
finalize the sale with Demers Inc. would have been different if PWGSC had known
that the cheque had arrived late. Finally, the Attorney General does not
maintain that the process selected, which was somewhat unusual, was not a call
for tenders; rather, he submits that it could be a call for tenders, but it
does not have the thoroughness we are used to. That is what is meant by
paragraph 18 of his memorandum of fact and law where the promise to
purchase process is characterized as not being [translation]
“ a formal call for tenders”.
Issue
[32]
On balance, the issue to be determined is
related to the delay in submitting the second deposit cheque. Demers Inc. had
made an irrevocable offer of $2,050,000 for the three parcels of land that were
initially listed at $900,000. The deposit of $205,000 was acquired. The improved
offer of $300,000, which included the $30,000 deposit cheque, was not completed
until a few minutes after 2 p.m. on July 12, 2012. Is this
irregularity minor?
[33]
If it is minor, PWGSC’s decision to choose the
bidder that offered the best price is unassailable. The highest promise to
purchase was chosen, and there would be no irregularity warranting a change in
the decision.
[34]
If this irregularity is not minor, the problem
is determining the appropriate remedy. Under subsection 18.1(3) of the
Act, the matter may be referred back to the decision‑maker, PWGSC, so
that it can choose. However, the parties are unanimous that they would prefer
that this court provide parameters to guide the decision‑maker in order
to avoid recommencing the same dispute on the basis that, having not been
informed that the second deposit cheque had arrived late, a new decision must
be made. Accordingly, if the irregularity is fatal, the only comparison would
be between Demers Inc.’s initial promise to purchase and Asphalte ABC’s improved
promise, a difference of $210,000 in favour of Asphalte ABC. Since the only
difference between the promises would be the time of purchase, presumably
Asphalte ABC would have been named the winner.
Standard of
review
[35]
The parties disagree on the standard of review that
should be applied in this case. It is not surprising that the applicant favours
the correctness standard. The principal respondent believes, on the other hand,
that the reasonableness standard applies.
[36]
In my opinion, this is a red herring. Since I
have already dealt with the argument under paragraph 18.1(4)(e) of
the Act (acting by reason of fraud or perjured evidence), there is only one remaining
issue, as I described at paragraphs 20 and 21. If the irregularity in question
is not minor and it is established that PWGSC was not informed of the irregularity,
it is difficult to see how the decision that was made could be reasonable. The
deference inherent to the reasonableness standard that Demers Inc. relies on
would not help the principal respondent’s case. What matters is determining the
seriousness of the irregularity. If the law is that a minor irregularity may be
ignored, PWGSC’s decision must be upheld.
[37]
That is why it does not seem to me to be helpful
to answer the question of the standard of review here. Whether the standard is
correctness or reasonableness, the result is the same. I add that the recent
decision in McLean v British Columbia Securities Commission, 2013 SCC
67, tends to reinforce the preference generally given to the reasonableness
standard.
[38]
Whether one invokes the theory of A and B
contracts, which is much more involved with contract law, or administrative
law’s reasonable expectations, in either case the minor error cannot taint the
decision that was made. If it is true that the issue must be considered from an
administrative law perspective given the remedy chosen, both approaches lead,
in my view, to the same result.
Jurisdiction
[39]
The issue of this Court’s jurisdiction to
dispose of this matter should be asked at the outset. The parties agree that
jurisdiction exists under section 18.1 of the Act. But, as we know,
jurisdiction cannot be conferred by consent.
[40]
In my opinion, it is sufficient for our purposes
to refer to the Federal Court of Appeal decision in Gestion Complexe
Cousineau (1989) Inc. v Canada (Minister of Public Works and Government
Services), [1995] 2 FC 694, [Gestion Complexe Cousineau] to be satisfied
that this matter can be heard.
Analysis
[41]
The irregularity at issue is minor. As such,
PWGSC’s decision to award the contract to Demers Inc. was not unreasonable. Nor
was it incorrect because the minor irregularity does not trigger an automatic
rejection in a case like ours where the process was intended to be informal,
was informal and was accepted as such by the participants. A minor irregularity
does not prevent a bid from being considered, and it certainly does not
contravene reasonable expectations. The application for judicial review will
therefore be dismissed.
[42]
It is useful to come back to the salient facts
of this case in order to establish the context:
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the process chosen by PWGSC was informal even
though it is common ground that the process had some characteristics of a call
for tenders;
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the promises to purchase in response to the
invitation were irrevocable. Of the three bids, Asphalte ABC made a bid at the
floor price of $900,000 (deposit of $90,000) while Demers Inc.’s promise to
purchase was for $2,050,000 (deposit of $205,000);
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Asphalte ABC improved its offer by $1.36
million, bringing its promise to purchase to $2.26 million; Demers Inc. added $300,000
to have a promise to purchase of $2.35 million;
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the applicant’s certified cheque was received by
the real estate agent before 2 p.m. on July 12, 2012, because he went
to Asphalte ABC’s place of business to get it. Demers Inc.’s intention to
improve its offer prior to 2 p.m. is quite clear. One of its representatives
was at the meeting to submit its promise to purchase. However, the deposit
cheque, although intended for prior to 1 p.m., arrived in the agent’s
hands a little after 2 p.m.
-
the promises to purchase were sent by the real
estate agent to the PWGSC representative later on July 12, around 4 p.m.
PWGSC was not told that the cheque had been presented late and chose the highest
promise to purchase, that of Demers Inc.;
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because no evidence of misconduct was
established and the applicant’s submissions on paragraph 18.1(4)(e)
of the Act are not accepted, must the mere delay in completing the deposit be
considered fatal?
[43]
In my opinion, both the process followed in this
case and the jurisprudence, which relaxes the bidding rules when irregularities
are minor, favour a negative response to the question.
[44]
First, PWGSC concedes at the outset that its
process was not formal, as it can be for public works concessions. In this
case, three parcels of land were being sold with not many details about them,
without any guarantee and certainly nothing resembling plans and
specifications, with sealed bids that have to be opened at a set date and time
or be rejected. Ultimately, the only thing that differentiates the offers to
purchase is the price.
[45]
Clearly, the applicant had suspicions about the
possibility that a competitor knew the amount of its offer and could manoeuvre
to obtain the land for a slightly higher price. These allegations, which were
never withdrawn, coloured the discussion somewhat. But no evidence was provided
to support these suspicions. On the contrary, the uncontradicted evidence is
that Demers Inc.’s cheque was certified before 1 p.m., which is when the
applicant met with the real estate agent. It follows that Asphalte ABC suffered
no prejudice because of the short delay in depositing Demers Inc.’s cheque.
[46]
What about the timeline? Was the deadline of
2 p.m. so strict that there could not be any variance?
[47]
The process established by the vendor was
clearly a process to give a particular property to the bidders. But, unlike
traditional invitations to tender where the state is purchasing goods and
services, the process here was not strict. The Attorney General agrees.
[48]
In my view, even if we are dealing with a
contractual matter, there is a public element to the decision to award a
contract that permits judicial review rather than another type of remedy. In
our case, did the process chosen by the vendor create an expectation such that
the applicant can validly complain about the delay in depositing the certified
cheque that was to complete the permitted improvement? Was there an obligation
to contract with Asphalte ABC because an irregularity disqualified a
competitor’s improved offer? The subject of the judicial review is whether the
decision to accept Demers Inc.’s promise to purchase was lawful. Was the
language used so specific that PWGSC was absolutely bound by it, to paraphrase Décary J.A.
in Gestion Complexe Cousineau?
[49]
I cannot bring myself to see in the promise to
purchase and the improved promise to purchase of July 4, 2012, the
strictness that Asphalte ABC would like to give to them. The process was
informal, the government was looking to maximize the sale proceeds for the
benefit of taxpayers, and Demers Inc.’s intention to improve its offer to
purchase was evident and was never withdrawn. The arrival of the cheque a
little after 2 p.m., but almost two hours before the promises to purchase
were sent to PWGSC, does not seem to me to be the type of irregularity that renders
the decision to accept that promise to purchase unlawful. Asphalte ABC suffered
no prejudice. It only presented a promise to purchase that was $90,000 lower
than that of Demers Inc.
[50]
We do not have before us the type of strict
conditions, expressed as such, in the case of very narrow invitations to
tender. The bids were not time‑stamped as some processes require. There
are, for example, documents that provide that “[r]ules
relating to the conformity of tenders shall state the cases that will be
automatically rejected, in particular where (5) the place and deadline for
receiving tenders have not been complied with” (RSQ, c A-6, r 5.001 and
c A-6.01, r 0.03, as cited in Construction DJL inc. c PGQ, 2006
QCCS 5290, 2006 RJQ 2753. Regulation respecting supply contracts, construction
contracts and service contracts of government departments and public bodies). That
was not the case here.
[51]
We must not lose sight of the fundamental
principle in this type of case. What matters is that the contractors are
treated equally, that one is not disadvantaged as compared to another. Major
irregularities cannot be ignored.
[52]
Quebec jurisprudence and authorities determine
whether an irregularity is minor or major based on the breach of the principle
of equality of bidders. In RPM Tech inc., below, the Court of Appeal of
Québec wrote as follows:
[translation]
[27] Certainly,
the City enjoys
some latitude in analyzing whether tenders are compliant. Accordingly, we must
avoid requiring it to adopt a formalism that would defeat the advantages of
public tenders. On the other hand, this latitude does not authorize it to
accept a tender containing a major irregularity that undermines the rules set
out previously and that the legislator has adopted. In other words, the City’s
recognized ability to accept tenders containing minor irregularities does not
extend to major irregularities, regarding which the City has no discretion; they
must be rejected on pain of nullity:
The municipality must have the necessary latitude to award
the contract based on the best interests of the taxpayers. As the courts have
already noted, “This is a duty
which is not owed to the lowest tenderer, no however, but to the public
treasury which should never be called upon to pay a higher price than is
necessary without good reason.” If a doubt arises about the compliance of a tender,
the offer containing the best price for the municipality must be preferred. But in pursuing this
objective, the municipality must not interfere with the principles of calls for
tender by showing favouritism and breaching equality among tenderers. In
other words, a municipality may show some flexibility in reviewing the
specifications and tenders but not to the extent of causing harm to some tenderers.
This is why the jurisprudence distinguishes between minor irregularities that
do not breach the objectives of calls for tender and irregularities that affect
the fundamental objectives of the procurement process via tenders. Municipal
discretion may be exercised only for the first category of irregularities.
Where there is a major irregularity that involves the
principles that underlie the procurement process of municipal contracts through
soliciting tenders, the municipality cannot permit any correction and must
refuse the tender as non‑compliant. In short, a municipality cannot
disregard an essential requirement of a call for tenders. (References deliberately
omitted)
[The underlining is in the Court of Appeal judgment, and
this is an excerpt from Jean Hétu, Yvon Duplessis and Dennis Pakenham, Droit
municipal, Principes généraux et contentieux, (Longueuil: Hébert Denault,
1998) p. 870-871.]
[28] To characterize an
irregularity as minor or major, the determining factor is the equality of tenderers.
The irregularity must not have an effect on the price of the tender; it must
not have upset the balance among the tenderers, one of the guiding principles
in awarding contracts by public tender;
The concern about ensuring equality among tenderers and not
unfairly preferring one of them is often the determining factor in
characterizing an irregularity as secondary or incidental or dealing with an
essential element: the omission or error must not have affected the price of
the tender or a fundamental requirement in the call for tenders. (References deliberately
omitted)
[From André Langlois, L’adjudication des contrats
municipaux par voie de soumissions, (Cowansville: Éditions Yvon Blais inc.,
1989), p. 90.]
[53]
This is a helpful guide, in my view. Not only do
taxpayers see their interests favoured by the fact that the highest promise to
purchase has to be accepted, but the irregularity is minor because it does not
breach the principle of equality of “bidders”, in this case, those who made an improved
promise to purchase that was sent around 4 p.m. on July 12, 2012.
There was no effect on the price offered because the wording of the promise to
purchase was unequivocal: the total amount offered as a promise to purchase was
$2,350,000, and it was in the agent’s hands before 2 p.m.
[54]
The applicant made much of the obligation to
treat bidders fairly and therefore to accept only compliant offers. Apart from
the Martel Building decision, above, which the applicant claims deals
with facts that are quite different from the facts in this case, there can be
no doubt that these principles of fairness apply. But the bidders were treated
fairly.
[55]
The applicant agrees that a minor irregularity
can be ignored. But it contends that the irregularity here is major. In support
of its theory, it offers the following paragraph from Mercier, above,
written by the dissenting judge:
[translation]
[57] There
is a multitude of possibilities for this type of inadvertence: for example,
forgetting to have the cheque for the tender guaranty certified, making the
cheque out for $1,000 instead of $10,000 or even submitting a tender bond on
which the signature is missing. I cannot be persuaded that it is possible to
permit one of the tenderers, unbeknownst to the others, to remedy this type of
inadvertence after the time fixed for the opening of tenders without breaching
the principle of equality among all tenderers, on the sole ground that it was
impossible to know at that time what prices would be submitted in the other tenders
not yet opened.
(References
omitted)
Not only is the
dissent being cited to us, but the passage is commenting on inadvertences that
a tenderer wants to remedy after the time fixed for opening the tenders. There
is nothing comparable in the situation under review. As for me, I am reassured
by the majority decision in that case, which stated that the fact the tender
had not been signed was minor, the result of an imbroglio. The majority could
not see how the other tenderers had been prejudiced, despite the requirement created
in the invitations to tender that tenders be signed.
[56]
Next, the applicant relies on a passage from the
Canadian Law of Competitive Bidding and Procurement by Anne C. McNeely, (Aurora:
Canada Law Book, 2010). The paragraph states:
Under Contract “A”,
there are no exceptions to a rule that a late bid is a materially non-compliant
bid which cannot be accepted by a bid calling party. Allowing a material
correction or amendment to a bid after bid closing, an indirect way of allowing
a late bid, or indirectly allowing one by allowing bid repair, derives from two
things. First, to allow a late bid is to unfairly allow the bidder involved
more time to finalize a bid than was provided to other bidders. Second, and
this goes to a core concern about the bidding process itself, to allow a late
bid or bid repair is to allow a change to be made in a bid at a time when the
bids of others are known or at risk of becoming known.
I fail to see how
this paragraph advances the applicant’s case. Not only was the bid, in our
case, not corrected or amended, but our facts do not correspond to the two
principles relied on. Demers Inc. had completed its promise to purchase prior
to 2 p.m. and therefore did not benefit from any advantage. The arrival of
the cheque did not in any way change the bid in light of the promises of the
other bidders.
[57]
The jurisprudence set out in Terrassement
St-Louis inc. c Municipalité de St-Honoré, 2009 QCCQ 13798, convinces me even
more that the irregularity in question here is minor. Equality among the
bidders was not breached.
[58]
Since the lawfulness of the acceptance of Demers
Inc.’s promise to purchase has been reviewed, I find that PWGSC was entitled to
accept it. It follows that the application for judicial review cannot be
allowed.
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