Executive Summary: Key Legal and Evidentiary Issues

• The dispute turns on whether a BSDQ Tendering Code bidder may exclude civil work described in its own specialty's specification.
   
• Article D-5 of the Code prohibits excluding work such as excavation and concrete work from a section covered by a bidder's tender.
   
• Interpretive contrast between Article 3.5 (pull pits, expressly excluded) and Article 3.6 (concrete blocks, no such exclusion) proved decisive.
   
• Conflicting expert testimony on damages required the court to assess the credibility and personal knowledge of each estimator.
   
• Dismissal of a related industry-association complaint was found to carry no probative weight given its opaque, unreasoned process.
   
• Sealing of a confidential pricing exhibit was ordered temporarily as a protective measure pending the judgment becoming final.

Facts of the case

Groupe Promec inc. (Promec) and Les Entreprises d'électricité E.G. ltée (EG) are both contractors specialized in electrical work who submitted competing tenders for the electrical specialty portion of a construction project undertaken by Aéroports de Montréal (ADM), involving a shelter with electric vehicle charging stations for airport service buses. Ali Excavation inc. (Ali Excavation), the general contractor on the project, was required under the BSDQ Tendering Code to award the electrical subcontract to the lowest compliant bidder. Promec's tender, filed April 30, 2024, totalled $1,377,129.18 plus taxes and included pricing for excavation, backfilling, and concrete block construction associated with the electrical trenches. EG's tender, filed the same period, totalled $1,282,486.00 plus taxes and expressly excluded that excavation, backfilling, concrete block, protective bollard, and civil work. Because EG's tender was lower, Ali Excavation awarded it the contract on May 13, 2024. Promec's estimating director subsequently advised Ali Excavation that EG's tender was non-compliant because of its exclusions, and that Promec's tender was therefore the lowest compliant one. Promec sent a formal demand letter on July 5, 2024, and ultimately sued for damages of $116,106.16, representing its lost profit on the subcontract it says it should have received.

Policy and legislative provisions at issue

The BSDQ Tendering Code governed the parties' relationship. Article D-1 requires a tender to respect the scope of work in the tender documents and prohibits exclusions within a single specialty. Article D-5 goes further, stating that a bidder may not exclude work described in a section covered by its tender, giving excavation and concrete work as examples. Article J-2 obliges the recipient general contractor to award the contract to the lowest compliant tender, and Article C-2 makes that contractor liable for damages flowing from a breach of that obligation. The Electrical Specification's Article 3.6, dealing with underground conduits embedded in concrete blocks, described digging, concrete pouring, and backfilling without excluding that work from the electrical specialty. By contrast, Article 3.5, dealing with pull pits, expressly stated that digging, backfilling, and installation were "managed by other contractors." Addendum 02 similarly listed excavation, block construction, and backfilling within the electrical work items (F-1, F-2, F-3, and F-5) of the price schedule. Ali Excavation relied on a separate "Civil Technical Specification" and a contractual precedence clause to argue that all civil-type work, regardless of where it appeared, should have been excluded from the electrical tender.

Reasoning and analysis

The court held that Article 3.5's explicit carve-out for pull-pit civil work, contrasted with Article 3.6's silence on any such carve-out for the concrete blocks, showed that the drafters intended the block-related civil work to remain within the electrical specialty — applying the interpretive maxim expressio unius est exclusio alterius. Addendum 02's item descriptions for F-1, F-2, F-3, and F-5 reinforced that conclusion, since they explicitly priced excavation, block construction, and backfilling within sections labelled as electrical work. The court rejected Ali Excavation's argument that a separate civil specification and a general contractual precedence clause displaced these specific inclusions, finding that identifying "the complete scope of the work" did not require excluding civil work that the Electrical Specification and Addendum 02 themselves assigned to the electrical specialty. The court also rejected the submission that Promec's approach produced illogical results, noting that Promec itself excluded general civil work and protective bollards, and sought only the specific civil work tied to sections its own tender covered. On causation, the court found that because Ali Excavation was obliged to accept the lowest compliant tender, and only Promec's tender met that description, the fault directly caused Promec's loss of the anticipated subcontract profit. The court gave no weight to the ACQ Professional Practice and Discipline Committee's dismissal of a related complaint against Ali Excavation, since that process was opaque, Promec had no opportunity to participate, and no reasons were given for the dismissal. On damages, the court preferred Ali Excavation's expert testimony reducing the claimed amount, finding it credible and grounded in personal knowledge of cancelled and reduced work items, over Promec's objection that supporting documentation should have been produced.

Ruling and overall outcome

The Tribunal allowed Promec's claim in part, finding that Ali Excavation breached the Tendering Code by accepting EG's non-compliant tender and awarding Promec $92,617.21 in damages — a reduced figure from the $116,106.16 originally claimed — together with legal interest and the additional indemnity under article 1619 of the Civil Code of Québec running from the July 5, 2024 demand letter. Costs were awarded in Promec's favour. The Tribunal also ordered that Exhibit P-9, the pricing document underlying the damages calculation, be sealed for 60 days as a protective measure, without finally resolving the broader confidentiality question, leaving Promec free to renew that request on appeal if necessary.