Executive Summary: Key Legal and Evidentiary Issues

• Characterization of technical bid requirements as essential conditions in a federal public procurement process and the impact of non-conformities on bid validity.
• Determination of whether identified deviations in pre-award boot samples (lace thickness, heel compression, sizing tables) constituted major or minor irregularities.
• Application of Québec tendering law, including the “contrat A / contrat B” framework and the principle of equality and fairness between all bidders.
• Assessment of alleged unequal treatment between G.A. Boulet inc. and Alberta Boots inc. in the technical evaluation of their bids.
• Evaluation and admissibility of expert accounting evidence to quantify alleged lost profits from a rejected bid.
• Consequences of failing to prove a compliant bid and provable loss, including full dismissal of the claim and an order of costs (including expert fees) in favour of the federal defendant.

Facts of the dispute

G.A. Boulet inc. is a Québec-based manufacturer of boots and shoes created in 2008 through the merger of several companies, including a long-established boot manufacturer of the same name. The company employs up to roughly two hundred people and has the capacity to manufacture around 200,000 pairs of shoes and boots per year. Over the years, Boulet has regularly bid on and obtained federal public contracts to supply boots and shoes mainly to the Department of National Defence, the Royal Canadian Mounted Police (RCMP) and Correctional Service Canada. Since 2001, Public Works and Government Services Canada (Travaux publics et Services gouvernementaux Canada, TPSGC) has awarded Boulet more than 20 contracts and amendments worth over 45 million dollars in total. TPSGC, now known as Public Services and Procurement Canada, is the federal ministry responsible for providing procurement and related services to federal departments, including conducting calls for tenders and awarding supply contracts. In this case, TPSGC acted on behalf of the RCMP’s uniform and equipment program for the acquisition of ceremonial high brown boots. In 2018, the RCMP decided to revise the technical specifications of its high brown boots used as part of the traditional ceremonial uniform. The specifications had not been significantly changed for many years. The RCMP moved from sex-specific custom-made boots to a unisex model and introduced technical changes to address user complaints: uncomfortable soles, insufficient variety of widths, and laces that were too thick and too short. Detailed technical specifications, including strict tolerances for dimensions and materials, were drafted by the RCMP’s designers and technical leads, with particular attention to the uniform appearance and high standard expected for ceremonial use.

The first request for proposals and rejection of all bids

On 6 November 2018, TPSGC issued the first request for proposals (RFP) for 2,000 pairs of high brown unisex boots, plus an option for additional pairs and further annual options. The RFP provided that the contract would be awarded to the lowest compliant bidder who met all mandatory technical and financial criteria. The technical regime required each bidder to submit pre-award samples, together with supporting documentation and component samples, for evaluation by the RCMP’s technical team. The RFP stipulated that samples had to be manufactured in full conformity with the technical specifications and be fully representative of the bid. The evaluation would focus on quality of workmanship and conformity to prescribed dimensions and materials. “Minor differences” could be tolerated, but the text warned that even a single difference could render a bid inadmissible if the evaluator considered it to make the item unusable. Before closing, TPSGC issued amendments to clarify quantities and to answer questions from bidders, which were published so that all bidders benefited equally. On closing, three Canadian companies, including Boulet, submitted bids. The RCMP’s technical evaluation team concluded that none of the three bids met the mandatory technical criteria. Each bidder received an individual letter detailing the non-conformities observed in its samples. For Boulet, five deviations were identified, including: front laces that were too thick compared to the specified diameter; certificates of conformity for welt and sole thread that did not match the required nylon filament thread; an omission of a sizing table for certain width “G” sizes; errors in the insole measurement tables (notably a length misalignment equivalent to one full size); and non-compliant measurements for a specific size and width at the calf and in height. No bidder, including Boulet, contested the outcome of this first process. TPSGC chose instead to restart with a second RFP, adjusting the process but not relaxing the technical requirements.

The second request for proposals and Boulet’s lowest-price bid

On 27 March 2019, TPSGC issued a second RFP to the same three companies, expressly replacing the first. The second RFP maintained the technical specifications but reduced the number of samples required from four to two and required that pre-award samples, supporting documents, and component samples be filed with the bid, rather than later. Again, the contract was to be awarded to the lowest bidder whose proposal was compliant with all mandatory technical and financial criteria. Before the closing date, Boulet used the formal mechanism provided in the RFP to request an exemption from clauses dealing with the material of the thread used for the welt and sole. It sought permission to use polyester thread instead of the specified nylon filament thread. TPSGC granted this request and published an amendment so that the exemption applied equally to all bidders, maintaining equal treatment. On 29 April 2019, at the closing time, all three invited companies, including Boulet, submitted bids. Boulet’s bid, in the amount of approximately 2,330,000 dollars, was the lowest of the three on the financial side. Together with its samples, Boulet filed a letter identifying two “Minor Observations (will be rectified for preproduction sample and production)”: it acknowledged that the front laces of its samples were too thick because its supplier had not been able to provide the proper thickness in time, and it noted scratches on one boot. Boulet explicitly committed to rectify these issues at the pre-production and production stages if it won the contract.

The technical evaluation and the three decisive deviations

The RCMP’s technical team, composed of the same designers and technical leads, evaluated the three new bids. Alberta Boots Company inc. (Alberta Boots) was ultimately found to be the only fully compliant bidder, and TPSGC awarded it the contract for a total contractual value of 1,789,299.63 dollars. TPSGC informed Boulet on 13 May 2019 that its bid had been rejected because the pre-award samples showed three deviations and that the contract had been awarded to Alberta Boots. The three deviations recorded for Boulet’s samples under the second RFP were as follows. First, the front laces on all samples were again too thick. The specified diameter was 2.75 mm with a tolerance of ± 0.1 mm, but the Boulet laces were 4.2 mm in diameter. The court found that Boulet admitted this non-conformity in its own “minor observations” letter. Evidence established that this thickness parameter was important because RCMP members are required, under long-standing ceremonial dress practice, to pass the front laces twice through the first eyelet; with laces that thick, this was not possible. From the RCMP’s perspective, this made the boots unusable for their intended ceremonial use. Second, the evaluators identified a defect in the heel of the right boot of size 7½ E: the heel base was not sufficiently compressed, creating a noticeable bump that caused the boot to rock laterally from left to right and to feel uncomfortable. Specifications required that heels be “well compressed” and that the boots allow the wearer to walk comfortably or correctly. During evaluation, both an RCMP technical evaluator and an RCMP member tried on the boot. They observed a central pressure point and lateral instability, leading them to conclude that the boot was not only uncomfortable but effectively unusable. Third, Boulet’s insole measurement table was incomplete. The RFP required the manufacturer to provide a table of insole measurements for all standard sizes, stating maximum length and width in millimetres. Boulet’s table omitted the measurements for sizes 2D to 3D and 2E to 3E. Since this was the first time the RCMP was moving to a unisex boot system, these tables were considered essential to verify that suppliers could manufacture the full range of required sizes. The omission created doubt about Boulet’s capacity to produce these sizes and, at trial, Boulet’s own president confirmed that its supplier could not provide the measurements for those missing sizes.

Allegations of unequal treatment and the court’s public procurement analysis

Boulet alleged that TPSGC and the RCMP’s technical evaluators treated Alberta Boots more leniently, particularly regarding lace specifications and heel compression. Boulet argued that if Alberta Boots’ side laces being too thick were treated only as a “minor observation”, then its own front laces should also have been treated as a minor irregularity. It likewise sought to rely on handwritten evaluation notes to suggest that Alberta Boots had similar heel-compression issues but was not penalized. The Superior Court rejected these arguments. It accepted the evidence that the front laces and side laces served different functions: the front laces had a direct functional role in how the boots were worn and laced, whereas the side laces were largely aesthetic and their thickness did not affect serviceability. Similarly, the evaluation notes referred, for both bidders, to the usual forward–backward rocking typical of boots with heels, which was acceptable, but only Boulet’s sample showed the lateral left–right instability caused by a central bump in the heel. The court also noted that in the first RFP all bidders, including Alberta Boots, had been rejected and no bidder received preferential treatment. These factual findings fed into the court’s broader legal analysis of public procurement law. The court applied established Québec and Supreme Court jurisprudence on public calls for tenders, emphasizing: the distinction between “contract A” (the tendering process contract formed on submission of a bid) and “contract B” (the eventual supply contract); the obligation of the public authority to treat all bidders equally and to follow the conditions of the call for tenders; and the rule that an “essential” condition of the call must be complied with, whereas only minor irregularities in respect of non-essential conditions can be tolerated. It reiterated that a major irregularity affecting an essential condition obliges the public authority to reject the bid, because acceptance would undermine the equality of bidders and the integrity of the process. Against this framework, the court concluded that the requirements governing sample conformity, front-lace thickness, heel compression and comfortable walking, and complete insole measurement tables were essential conditions. The deviations found in Boulet’s samples were not trivial; they directly affected either the serviceability of the boots for their ceremonial purpose or the demonstrated capacity to supply the full size range. The court held that each of the three deviations constituted a major irregularity in relation to an essential condition. Accepting Boulet’s bid despite these deviations—especially on the strength of a unilateral promise to correct them later—would have granted Boulet an unfair extension of time and cost advantage over competitors who complied at the bid stage, in breach of the duty of equality.

Damages, expert evidence, and the court’s hypothetical assessment

Boulet claimed loss of profits corresponding to its anticipated margin on the contract, initially in the order of 1.25 million dollars and later adjusted upwards before being reduced to a claim of 1,546,236 dollars. To support this, Boulet filed an expert report from Mallette, based largely on an internal annex calculating unit costs of materials, direct labour, and defect rates specific to the RCMP contract. The expert assumed that the contract could be executed without any need to hire additional staff, without increased defect rates, and with very high contribution margins relative to Boulet’s historical business. The Attorney General of Canada responded with its own expert report from PricewaterhouseCoopers (PwC). PwC criticized the plaintiff’s data and assumptions as uncorroborated and largely prepared after litigation began, rather than as contemporaneous projections made at the time of the bid. Boulet had not provided various requested documents, such as detailed bid costings and analyses of profitability on comparable contracts. PwC therefore turned to Boulet’s audited financial statements and historical margins and showed that the exceptional margin claimed for the RCMP contract (around 70%) bore little relation to the company’s real-world profitability, which was closer to 24% on its overall operations. The court considered that, in principle, the better way to quantify lost profits would be to examine the specific contract’s expected margins. However, given the speculative and inadequately supported nature of Boulet’s cost and profit estimates, it preferred the defendant’s approach based on historical financial data. On this basis, the court concluded that, if liability had been established, Boulet’s lost profits would amount to approximately 597,713 dollars instead of the much larger sum it claimed. This conclusion, however, was explicitly hypothetical, because Boulet failed at the prior stage to prove any wrongful rejection of a compliant bid.

Final ruling and successful party

On the central legal question, the Superior Court held that Boulet bore the burden of proving that its bid under the second RFP was compliant and that the RCMP contract would have been awarded to it but for a fault in the evaluation process. The court found that Boulet did not meet this burden. The three deviations identified in its samples were major irregularities tied to essential conditions of the RFP. Under Québec public procurement law, TPSGC had no discretion to ignore these irregularities and was obliged to reject Boulet’s bid in order to preserve the integrity and fairness of the tendering process. Accordingly, the court dismissed Boulet’s amended application in full. The successful party in the litigation is the defendant public authority: the Ministère des Travaux publics et Services gouvernementaux Canada, represented by the Attorney General of Canada. No damages or monetary compensation were awarded to G.A. Boulet inc.; its claim for a lost-profit amount of 1,546,236 dollars was rejected, and the hypothetical figure of 597,713 dollars was not ordered because liability had not been established. The court did order costs in favour of the defendant, including expert fees, but the judgment does not specify any exact dollar amount for those costs; the total monetary sum of costs to be recovered will therefore be determined separately under the applicable procedural rules rather than in a fixed figure in the reasons.