Morissette, Fournier, Monast (ad hoc)
Appeal from a judgment of the Superior Court granting an application for damages. Allowed.
The respondent answered a public call for tenders issued by the appellant in relation to the provision and installation of doors, frames, and hardware for the construction of a new detention centre. The tender submitted by Donlox, a competing company, was retained and the respondent’s tender was ranked second. The respondent denounced the fact that Donlox’s submission was ineligible, since it did not hold a licence issued by the Bureau de la sécurité privée (BSP) for the class of “locksmith agency”. BSP was consulted in this regard and was of the opinion, after examining the specifications, that the locksmith agency or locksmith licence was superfluous. The contract was awarded to Donlox. The respondent instituted an application for damages, claiming to have suffered damages because of the irregular adjudication of the contract to a competitor. The trial judge found that the performance of the work required that the contractor-tenderer hold a licence from the BSP. In addition, it had to hold this licence at the time its tender was filed, failing which its tender was ineligible because this omission would constitute a major irregularity affecting the integrity of the call for tenders process. Consequently, the appellant’s tender was ineligible.
The main and supporting documents of the call for tenders did not require and, as written, did not suggest that the work to be done for the performance of the project required a licence from the BSP. In addition, a priori, after a careful review of the call for tenders, a potential tenderer whose company offers the kind of services corresponding to Donlox’s specialty could rationally have concluded that, on the worksite, the locksmith work would not have been its responsibility. Even if we accept that some of the work to be carried out would require a licence from the BSP, it would have been unnecessary for the general contractor, Donlox, to hold such a licence at the time it submitted its tender. Indeed, at the time of the opening of tenders, it fully retained the right to sub-contract part of the work to a licence holder if this was necessary. The judge therefore erred in dismissing the appellant’s argument based on Donlox’s ability to sub-contract the installation of the locks. This conclusion is enough to allow the appeal. Furthermore, a review of the Private Security Act (CQLR c S-3.5), its purpose, and its intended scope, establishes that BSP’s opinion was in compliance with the law and a licence was not required to perform the work.
Text of the decision: Http://citoyens.soquij.qc.ca