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DECEMBER 2016 ISSUE 4 September 19, 2016 KICK-OFF in The Exchange IN THIS ISSUE… Chair’s Report………..3 Membership…….…….6 Director’s Report…….7 WCA News……..…..9-11 Save the Date ……….11 December meeting….14 November recap…….15 Legal article……….....16 www.cscwinnipeg.ca October 4, 2016 Breakfast at Manitoba Building Expo November 9, 2016 Specification writing presentation December 14, 2016 TOUR - Centennial Concert Hall January 11, 2017 Legal Presentation February 8, 2017 Design Presentation March 8, 2017 Design Presentation April 12, 2017 (Possible) TOUR May 10, 2017 Annual Chapter Meeting June 2017 Annual Golf Tournament THE WINNIPEG May 2017 Connections Cafe All above dates are subject to change. MEETING NOTICE CSC Winnipeg invites you to join us on Wednesday, December 14th for a tour of the Centennial Concert Hall & MCCC Physical Plant The Centennial Concert Hall was built as part of the Manitoba Centennial Centre, to commemorate Cana- da’s centenary. It is an $8 million, 253,014 square foot venue with a seating capacity of 2,305. Bill Nuhn will lead us on a backstage tour of the facility through such areas as the green room, star dressing rooms and main rehearsal room. He will also take us on stage, where you can stand under the big lights and imagine that you’re the next breakout star (or maybe not)! From there, Norbert Schuster will take us on a tour through the Physical Plant, which will include the plant, the parkade and the control room. For more information, please see page 14...

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Page 1: Winnipeg December 2016

D E C E M B E R 2 0 1 6 I S S U E 4

September 19, 2016 KICK-OFF in The Exchange

IN THIS ISSUE…

Chair’s Report………..3

Membership…….…….6

Director’s Report…….7

WCA News……..…..9-11

Save the Date ……….11

December meeting….14

November recap…….15 Legal article……….....16

www.cscwinnipeg.ca

October 4, 2016 Breakfast at Manitoba

Building Expo

November 9, 2016 Specification writing

presentation

December 14, 2016 TOUR - Centennial Concert

Hall

January 11, 2017 Legal Presentation

February 8, 2017 Design Presentation

March 8, 2017 Design Presentation

April 12, 2017 (Possible) TOUR

May 10, 2017 Annual Chapter Meeting

June 2017 Annual Golf Tournament

THE WINNIPEG

May 2017

Connections Cafe

All above dates are subject to change.

MEETING NOTICE

CSC Winnipeg invites you to join us on

Wednesday, December 14th for a tour of the

Centennial Concert Hall & MCCC Physical Plant

The Centennial Concert Hall was built as part of the Manitoba Centennial Centre, to commemorate Cana-da’s centenary. It is an $8 million, 253,014 square foot venue with a seating capacity of 2,305. Bill Nuhn will lead us on a backstage tour of the facility through such areas as the green room, star dressing rooms and main rehearsal room. He will also take us on stage, where you can stand under the big lights and imagine that you’re the next breakout star (or maybe not)! From there, Norbert Schuster will take us on a tour through the Physical Plant, which will include the plant, the parkade and the control room.

For more information, please see page 14...

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Winnipeg Specifier

The newsletter acts as a moderator without approving, disapproving or guaranteeing the validity or accuracy of any data, claim or opinion appearing under a byline or obtained or quoted from an acknowledged source. The opinions expressed by the authors do not necessarily reflect the official views of Construction Specifications Canada. Also, appearance of advertisements and new product or service information does not constitute an endorsement of product or services featured.

CONSTRUCTION SPECIFICATIONS CANADA Construction Specifications Canada is a multi-disciplinary, nonprofit association dedicated to the improvement of communication, contract documentation, and technical information in the construction industry. CSC is a national association with chapters in most major Canadian cities.

Vision Statement:

The construction community's first choice for quality documentation, education and networking.

Core Value and Belief Statement:

Quality, Professionalism, Teamwork, Integrity, Openness and Innovation.

Mission Statement:

Committed to the ongoing development and delivery of quality education programs, publications and services for the betterment of the construction community.

Objectives:

To foster the interest of those who are engaged in or who are affected by the compilation or use of any forms of specifications or related documentation for the construction industry.

To publish literature pertaining to the construction industry.

To engage in activities to improve procedures and techniques related to the construction industry.

For More Information: Contact any member o f the Executive.

Attend one o f our meetings.

Vis i t the Association website at www.csc-dcc.ca

Vis i t our chapter website at www.cscwinnipeg.ca

Send your name and address to:

CONSTRUCTION SPECIFICATIONS CANADA Winnipeg Chapter

1447 Waverley St., Winnipeg, MB R3T 0P7

WINNIPEG CHAPTER EXECUTIVE 2014/2015

Chapter Director Barb Boroskae 204-774-2431 [email protected]

Chair Dwayne Penner, CCCA 204-956-0980 [email protected] [email protected] Past Chair Barb Boroskae 204-774-2431 [email protected]

Vice-Chairperson Vacant Volunteer Required

Officers:

Specification Writer Rock Jerome, CCCA 204-885-9323 [email protected] Architectural Bradford Cove, C.T. (Arch) 204-477-1260 [email protected] Engineering Dwayne Penner, CCCA 204-956-0980 [email protected] Interior Design Jean Gallagher 204-956-9720 [email protected] Trade Contractor Terri Randall 204-253-7170 [email protected] Manufacturer/Supplier Jim Dupasquier 204-782-2601 [email protected] Landscape Architecture Vacant Volunteer required Facility/Plant Manager Norbert Schuster [email protected] General Contractor Coram Lalonde TBA TBA Owner Representative Jennifer Webber 204-360-3963 [email protected]

Appointments:

Secretary Jennifer Webber [email protected] Treasurer Jason Moses 204-989-0102 [email protected] Technical Vacant Volunteer Required Marketing Jim Dupasquier 204-782-2601 [email protected] Membership (Co-Chairs) Jesse Watson 204-942-0981 [email protected] Program Elizabeth Veloso 204-954-6922 [email protected]

Telephone Tree Jesse Watson 204-942-0981 [email protected] Education/Certification Brenda Thompson [email protected] SPECIFIER Newsletter Editor Sarah Panasiuk 204-253-7170 [email protected] Webmaster Mike Garlinski 204-632-9378 [email protected] Golf Tournament Ken Rowson 204-633-8316 [email protected] Connections Café Mike Garlinski 204-632-9378 [email protected] Sergeant-at-Arms Gord French 204-256-6007 [email protected]

ADVERTISEMENT RATES FOR WINNIPEG CHAPTER SPECIFIER

_________________________________

All copies supplied by advertiser will be stuffed into newsletter enve lope independent o f the newsletter.

Full page advertisements must be maximum 8 1/2” x 11”.

Note: One year advertising will be included in a minimum of 10 issues. The editor reserves the right to limit weight of loose insert advertising.

BUSINESS CARD (Rate is yearly-10 issues) $60.00 members $75.00 non-members

FULL PAGE All issues: $500.00 1 issue: $100.00

HALF PAGE All issues: $250.00 1 issue: $50.00

QUARTER PAGE All issues: $125.00 1 issue: $25.00

PREPRINTED INSERT 1 issue: $75.00

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Winnipeg Specifier

““Your Chair’s Report”

WOW – Winter is finally here. As I put the finishing touches on this report, the wind is howling and the snow is flying outside my window, as Manitoba experiences its first (I’m sure not the last) major snow

storm of the season. And with temperatures forecast to be in the -20’s for the weekend, I guess we can say good bye to our amazing Fall. But I guess that’s why they call it “Winter”peg (which, in my opinion, we should all wear as a badge of honour). So it’s been a busy month since my last report – with three interesting opportunities present-ing themselves to me. First… for the second year in a row, I had the incredible privilege to help educate some fu-ture engineers on the finer points of specifications and contracts. On November 8th, I pre-sented a short lecturer to a class of 3rd and 4th year civil engineering students at the Univer-sity of Manitoba, as part of their Construction Engineering and Management course. As in the past, the wide range of topics presented were mostly new to the approximately 50 stu-dents, and as always, I spent some of the time selling these young minds on the benefits of their future (we hope) membership in CSC and what the Association can offer to them as members – including continuing education and valuable networking opportunities. While some students chose to interact during the lecture, it wasn’t until after the presentation that a few brave folks came forward and asked the more detailed questions – which kept the small group of us engaged for another hour. All-in-all, a fantastic time to connect with these “kids” and reinforce some of the things we do on a daily basis. Second… on November 16, I had my first opportunity to participate as a member of an adju-dication panel for one of our local sales representatives to make his presentation, as part of attaining his Certified Technical Representative (CTR) designation. Mr. Paul Cantafio of DOW had completed the classroom portion of this educational program when the Chapter ran it some time ago, but now was his opportunity to complete the presentation portion. So congratulations to Paul on his successful presentation and attaining his CTR designation. Thanks also goes to George Heath for organizing this event and WSP (Brad Cove) for providing space in their offices to host. Speaking of education, a huge thank-you goes out once again to our Education Committee, headed up by Ms. Brenda Thompson ([email protected]), who recently completed facilitat-ing the Construction Contract Administrator (CCA) course, which took place the week of No-vember 14th to 18th. Thanks also to our course instructor, Mr. Peter Semchuk, FCSC, RSW, CCCA of CSC’s Edmonton Chapter. Another successful educational offering from the dedi-cated team on our Education Committee.

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Winnipeg Specifier

Dwayne Penner Winnipeg Chapter Chair, CCCA, Tetra Tech

Last, but not least… it was once again my pleasure this month to attend the Red River Col-lege Technology Awards Dinner, on behalf of the Winnipeg Chapter – to present one deserv-ing student with the F. Ross Browne CSC Scholarship. For those not familiar with it, this award was established a number of years ago in honor of the late F. Ross Browne, a long-time Winnipeg CSC member, and Past-President of the association, who dedicated a great deal of time to the furthering of CSC’s mandate of education and communication. In addition to the scholarship, the recipient also receives a complimentary 1-year membership in our as-sociation. This year’s recipient… Ms. Angela Grafilo, a second year student enrolled in the Architectural Engineering Technology course.

CONGRATULATIONS and WELCOME TO CSC!!!

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Winnipeg Specifier

In the construction industry’s fast-paced environment, the need for and value of Construction Specifications Canada is greater than ever. CSC brings together individuals from all segments of the construction industry. All who have a vested interest in Canada’s largest industry are invited to join CSC. When you join CSC you become a part of the only associa-tion that brings together professionals from all aspects of the construction industry.

CSC offers members of the Design Team the opportunity to meet with other members and exchange information. It also affords you the chance to help improve technology and its management, and the means to improve ways in which your ideals are translated into clear, concise and complete documentation.

If you are a member of the Building Team, Construction Specifications Canada offers you the opportunity to become involved in formulating specifications. Your valuable input into the programs can help generate time and cost savings as well as improve performance.

The multi-disciplinary composition of CSC allows members of the Supply Team to meet with other members of the construction team. CSC programs in data filing and information retrieval are geared to present convenient and concise information on your products for proper evaluation and specifica-tion.

If you are a student of architecture, engineering or construction technology, CSC will provide you with greater exposure to and a better understanding of the Construction Industry, giving you an excellent opportunity if you plan a career in the construction field.

Kevin Harbottle Non-CSC Designation: PMP, G.S.C. Sr. Project Manager Stantec Consulting Ltd. 500 – 311 Portage Ave. Winnipeg, MB R3B 2B9 Tel: 204-227-5409 Fax: N/A Email: [email protected] Classification: INDPM Web Site: www.stantec.com Chapter: Winnipeg

Mr. Jared Shuster Non-CSC Designation: N/A Sales Slot Drain Systems Ltd. 1061 Notre Dame Ave. Winnipeg, MB R3E 0N4 Tel: 855-497-7508 Fax: 204-775-2324 Email: [email protected] Classification: INDMS Web Site: www.slotdrainsystems.com Chapter: Winnipeg

Ms. Page Johnston Non-CSC Designation: N/A Sales Specialist – MB / SK Willis 74 Dells Crescent Winnipeg, MB R2M 5A1 Tel: 204-479-1602 Fax: 888-994-5548 Email: [email protected] Classification: INDPR Web Site: www.4willis.com Chapter: Winnipeg

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Winnipeg Specifier

On behalf of the Association:

Membership & Financial Great news – membership fees stay the same for 2017 and CSC is in good financial standing. CSC EDUCATION Contributors – Thanks to these dedicated individuals for their time and efforts to update critical industry courses! CSC Winnipeg Chapter sincerely appreciates the actions of the follow-ing individuals; EMTT CHAIR + CCCA: Chris Lance; CCA Sub Committee Contributors: Chris Mooring, Jacques Gauthi-er, Mark Clemmenson, Scott Cunning, and Ted Katsoris. EMTT PCD Course Subcommittee Chair: Corinne Golding; PCD Sub Committee Contributors: David Graham, Jenny Dergousoff, Herb Guhl, Len O’Connor, Sandeep Khanna, Scott Ruffett, Paul Shupe, Jori Toniello, Frank Zack, Kim Tompkins, Paul Zanetti, Peter Birkbeck, Tim Simpson, Wissam Itani, Teresa Jiang, Steve Ioannides, Karamjit Grewal, Marc Kast, Christine Graystone, Vincent Moseley, Brad Cove, and Glenn Chatten. EMTT TR Course Subcommittee Chair: Russ Snow; TR Sub Committee Contributors: Steve Guster-son, Isabelle Champagne, Guillermo Cordero, and Greg Mylks. EMTT SP Course Subcommittee Chair: Betty-Jo Tell; SP Sub Committee Contributors: Stan Bury, Don Shortreed, Paul Zanetti, Sonia Zouari, George McCutcheon, and Steve Londry. 5-Day CSC CCA Course in Toronto confirmed for March 22-26, 2017. Watch for CSC Winnipeg - Specifier Course – 5-Day format – tentative proposed dates Feb 27 – March 3, 2017 details to follow; save the dates. CSC MARKETING COMMITTEE - UPDATE A Marketing Committee meeting was held in Toronto on August 27-28, 2016. A committee member present-ed the ideas and actions of the committee to date to the board at the fall 2016 meetings; lively discussion followed. Marketing encourages chapters to send events to Construction Canada magazine (Kenilworth) for publication, and with firsthand experience this resulted in an out of province attendee for the Winnipeg CCA course in November! Also, the committee recommends the use of CSC Twitter and thanks to Sarah & George at Winnipeg Chapter for kick starting this activity. Watch for further news next report! STUDEN DESIGN COMPETITION Cathie Schneider, CTR (Grand Valley Chapter) and Isabelle Champagne, CTR (Toronto Chapter) were Co-Chairs of the CSC “Tapping the Future” Student Design Competition at National Conference in 2014. They have been very gracious to share their “Student Design Competition Booklet / Template” with the hope of spreading the word to other Chapters who may wish to run their own. The Winnipeg Chapter Executive is reviewing the document for consideration feel free to provide your comments to the Chapter Director at the following: [email protected] May you enjoy the holiday season with those most important to you! Barb Boroskae

Winnipeg Director & Proud Manitoban

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Winnipeg Specifier

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Winnipeg Specifier

September 2016 Building Permit Data

According to Statistics Canada, the value of all building permits issued in Manitoba in 2016 through September reached $2 billion. Overall activity is tracking just under 17% above last year’s numbers, with growth coming pri-marily from the non-residential sector, and in particular the Commercial and Industrial sectors. The Industrial sector has almost doubled its output from 2015.

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Winnipeg Specifier

City of Winnipeg releases 2017 budget The City of Winnipeg released its 2017 budget on November 22

nd, and the draft document is currently mak-

ing its way through various standing policy committees. In general, this is a status quo budget with few surprises on either the taxation or spending side. Of some concern to the WCA is a reduction in the tax-supported capital program by $51 million, partially through de-ferring some projects like fire-paramedic station maintenance and library renovations. While a reduction was forecast in last year’s budget, we feel it’s important for the city to have a consistent long-term capital invest-ment plan. This budget does call for a 2.33% property tax hike, 2% of which is supposed to be dedicated to road repair. However, as pointed out by our colleagues at the Manitoba Heavy Construction Association, the road repair budget for 2017 is identical to 2016, meaning that the property tax increase is actually being used to fund other civic programs. The WCA will continue to monitor the debate around the 2017 budget and will keep members informed of any developments that may impact the industry. For more information: http://www.cbc.ca/news/canada/manitoba/winnipeg-budget-2017-1.3862094 http://www.winnipeg.ca/interhom/budget/2017budget/default.stm

WCA presents Red River College Construction Management Awards

The Winnipeg Construction Association has always taken pride at looking out for the future of the construc-tion industry. One of the ways we do this is by helping the next generation of industry leaders through edu-cation. For the sixth straight year, WCA has provided several Red River College students with the Construction Man-agement Award for Continuing Students. Congratulations to JJ. Brandon Campbell, Michael Semegen, Kevin Olilo and Katrina Olafson - we can't wait to see the impact you make on the future of the construc-tion industry.

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WCA Education looking to 2017 December and the holidays are a busy time for everyone, but that doesn't mean there isn't time to fit in some learning to help you start the new year off on the right foot. WCA has courses coming up in December, and it's the perfect time to schedule in your early 2017 courses before the holidays. Here's what we've got coming up before the New Year:

Project Management Skills Academy December 6,7 and 8. 8:30 - 4:00 each day. Building Knowledge: The Construction Industry Explained (Formerly Construction 101) December 13 & 14, 7:30 - 4:00 each day. Building Code: Building Size and Construction Relative to Occupancy December 16 8:30 - 12:00

MITT offering Power Engineering Class 1 & 2 MITT is offering a new evening course, designed to help those already working as power engineers to advance their careers.

Winnipeg Specifier

Wednesday, January 11, 2017 Registration: 11:30; Lunch: Noon; Presentation; 12:30 - 1:30

Legal Update by Daryl Chicoine, Aikins MacAulay & Thorvaldson LLP

A presentation and discussion of the recently released; Expert Review of Ontario’s Con-struction Lien Act, the differences to Manitoba’s Builders‘ Lien Act and the consideration

of improvements to include prompt payment and dispute resolution under the Act.

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Winnipeg Specifier

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For your convenience, we have added a PayPal option to your existing payment solution.

Now, in a few easy steps, you can speed through checkout using your existing PayPal account, or, if you don’t have a PayPal account, you can

choose a one-time credit card or Visa Debit card payment.

Each meeting, we will provide a link within the meeting notice, which will direct you to a pay-

ment page for this particular CSC Meeting. Simply provide your account or credit card de-

tails, and you’re done. A receipt will be emailed to you immediately.

It’s EASY, FAST and SECURE !

Winnipeg Specifier

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Winnipeg Specifier

Winnipeg Chapter

PRESENTS

Date: Wednesday, December 14, 2016

Time: Registration begins at 11:30am; Lunch served at noon

Location: Centennial Concert Hall, 555 Main Street, Wpg, MB

Tour Guides: Bill Nuhn, General Manager

Nobert Schuster, Director Capital Development and Physical Plant

Cost: CSC Members $30 Potential Members $35

Please email your confirmation by 4:00 pm, Friday, December 9th to Gord French at: [email protected] (No shows will be invoiced).

Payment by cash or cheque at the door OR with paypal (Please advise Gord French in your RSVP if you wish to receive the PayPal link)

A Tour of the Centennial Concert Hall & MCCC Physical Plant

Have you ever wondered what exactly is happening behind the scenes as you take in a spec-tacular show at the Concert Hall? Well, here is your chance to find out! The Centennial Con-cert Hall was built as part of the Manitoba Centennial Centre, to commemorate Canada’s cen-tenary. It is an $8 million, 253,014 square foot venue with a seating capacity of 2,305. Bill Nuhn will lead us on a backstage tour of the facility through such areas as the green room, star dressing rooms and main rehearsal room. He will also take us on stage, where you can stand under the big lights and imagine that you’re the next breakout star (or maybe not)! From there, Norbert Schuster will take us on a tour through the Physical Plant, which will include the plant, the parkade and the control room.

We hope that you will join us for this exciting tour. For those attending, we ask that you please come in through the main Concert Hall doors (facing Main Street). From there you will be directed to the Piano Nobile lobby. Both in-door and outdoor parking is available. For more information please visit http://centennialconcerthall.com/plan-your-visit/location-parking/.

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Winnipeg Specifier

A big thank you to everyone who made it out to our lunch

meeting last month!

Paul Gerber’s presentation on Supplementary Conditions; The Good, The Bad and The Ugly

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Winnipeg Specifier

Bidding and Tendering – Hold your applause for sharp practice

By: Misty Alexandre, Robertson Stromberg LLP November 21, 2016

The world of bidding and tendering is risky business. It’s a competitive arena, and this atmosphere often leads to creativity from bidders. This creativity is not always on the positive side. Often, it makes for nervous consultants, who are acutely aware of the pitfalls awaiting when there is an irregularity in the submission of bids. A recent decision by the British Columbia Court of Appeal serves as a good example of the minefield that can be encountered when bids are not submitted perfectly in accordance with requirements of the bid documents. It also serves as a reminder for ‘creative’ contractors that courts are on the lookout for any behaviour that might jeopardize the integrity of the bid process, and they will not applaud anything that resembles sharp practice. In True Construction Ltd. v. City of Kamloops (2016 BCCA 173), the Court dealt with a bidding and ten-dering issue involving the construction of a new fire hall in the City of Kamloops. At the heart of the is-sue was whether the contractor, True Construction Ltd (“True”), submitted a bid that was “substantially compliant” with the Instructions to Bidders. The facts were relatively straight forward (as much as they can ever be in a legal battle): In September, 2010, the City issued an invitation to bid for a local fire hall. The bid documents

Included a Bid Form along with Appendices A-F;

Appendix A was a list of subcontractors not bid through the bid depository, and Appendix F was the form required to revise the base bid (Appendix B was not ultimately relevant to the court’s dis-cussion);

The Instructions to Bidders required the completed Bid Form to be provided in a sealed envelope and delivered to the City, though bidders were permitted to later revise their bids in person or by fax using Appendix F;

True submitted its sealed bid on the day prior to closing, but deliberately did not include pages 2 and 3 of Appendix A as well as Appendix B (essentially leaving out the names of the subcontrac-tors not bid through the depository);

On the following day just prior to closing time, True submitted the remainder of Appendix A as well as Appendix B, in addition to a price revision using Appendix F;

During the trial, True openly acknowledged that it deliberately did not include the full Appendix A or B, as they wanted to postpone selecting their subcontractors until they had received all their pricing up to the last minute, when subcontractor prices were typically at their best; they referred to subcontractor bidding practices as “the bane of our existence”;

True’s strategy was to withhold the information required in Appendix A and B, and simply complete their bid prior to closing time using Appendix F;

When the bids were opened, and taking into account the faxed revisions to base price, it was de-termined that True was the low bidder on the project. However, the City was in a real pickle at that point. While their consultant, Stantec Architecture Ltd., recommended waiving True’s failure to in-clude completed Appendices A and B in the sealed bid as an irregularity under the discretion clause, the City was concerned that allowing a bidder to gain a competitive advantage in this...

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...manner would damage the City’s reputation and ability to contract quality bidders down the road;

Despite Stantec’s caution that rejecting True’s bid would likely lead to litigation, the City stood firm and rejected True’s bid as incomplete;

Stantec was correct – the rejection of True’s bid did, in fact, lead to a lawsuit.

At trial, the judge held that:

The Invitation to Bidders clearly required the appendices to be submitted with the sealed bid (with the exception of Appendix F);

Appendix F could only be used to revise price, and could not be relied upon to complete an incom-plete bid;

True had gained a competitive advantage by failing to initially submit the list of subcontractors in Ap-pendix A, in that True could continue to negotiate with subcontractors when other bidders had al-ready submitted their bids;

By submitting portions of the appendices by fax, True had breached the secrecy that affected the integrity of the bidding process;

True’s bid was incomplete and incapable of acceptance even if the required information was later provided prior to the closing time;

By submitting its bid in this manner, True gave itself the option of later arguing that the bid was inca-pable of acceptance should it decide that the contract would ultimately be unprofitable.

The Court of Appeal did not agree with the trial judge’s reasoning on the competitive advantage gained by negotiating with subcontractors after submission of the sealed bid. Rather, this opportunity was available to all bidders, who could revise their price prior to closing using Appendix F. Similarly, the Court of Appeal could not find any evidence to support the ‘breach of secrecy’ argument.

However, the real issue from their perspective was whether True’s bid was substantially non-compliant.

In their examination of the law and related facts, the Court of Appeal noted:

When the tender documents were read in their entirety, Appendix A formed part of the Bid Form, and it was required to be submitted in full in the sealed bid;

There is a difference between revising an entry that is already complete (ie using Appendix F) and completing a bid that was initially incomplete. Specifically, the Court held that “the manner in which the tender documents contemplate that revisions can be made to the bid reinforces the conclusion that a complete bid must be in the sealed envelope and that bid must include a completed Appendix A as part of the bid form”;

While a plain reading of the discretion clause allowed the City to waive irregularities of a minor or technical nature, True had gained a competitive advantage by submitting its bid in this manner. They agreed with the trial judge’s reasoning that submitting an incomplete bid, which is later completed by fax submissions, allowed True the ability to back out of the contract if it proved to be unprofitable. In essence, True had set itself up for the best of both worlds;

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The tendering documents required a complete list of subcontractors, and that fact alone was enough to support the view that the information was, in fact, material and not of a ‘minor or technical nature’. They further held that “where the tendering documents on their face require the information in ques-tion and there is some indication in the documents that the information is material, prima facie, the information is an important or essential requirement of the Tender. No further evidence is needed to support that result.”

The Court of Appeal summed up True’s competitive advantage in this scenario with the following quote:

Allowing bidders to submit sealed bids that are incapable of acceptance and then

complete them under a mechanism intended to permit revisions to a bid that can be

accepted subverts the scheme. Treating that course of conduct as a mere irregulari-

ty does, in my opinion, provide a potential competitive advantage. To illustrate this

point, it is useful to compare the position of two bidders. Each submits its sealed bid

at the same time 24 hours before closing. Bidder A’s bid is complete and clearly ca-

pable of acceptance. If it is accepted, it is bound to perform the contract. Bidder A

can continue to negotiate with subcontractors, at least those who have not bid

through the bid depository system. If those negotiations are successful, it can revise

its price and fax in its revisions. Bidder B’s bid is incomplete because it has not filled

in Appendix A. It can continue to negotiate too, but if it is unsatisfied with the result

of those negotiations, it can avoid the risk of being bound to perform by arguing that

its sealed bid is not capable of acceptance. While it may be that Bidder A can contin-

ue to negotiate, it has lost the advantage of potentially being able to walk away from

its bid. It can avoid only being at a comparative disadvantage either by putting in a

similarly incomplete bid or waiting to the very last moment to put in a complete

sealed bid. The former option is surely not what is contemplated by the scheme. The

latter imposes a risk on Bidder A that it can get its sealed bid in on time or at least as

late as Bidder B could fax in its completed Bid. I do not think that this is what is con-

templated by the scheme.

Finally, the Court of Appeal held that it was immaterial whether, in fact, True did or intended to se-cure a competitive advantage over other bidders in this manner. What matters is whether this prac-tice objectively created a potential competitive advantage which undermined the integrity of the bid-ding process – clearly, the Court felt that it did.

Consultants are already abundantly aware that their bid documents must be drafted air-tight, as any ambi-guities, discrepancies or errors can result in significant headaches during the bidding process. As you’ll see from this case, the examination of whether a bid is substantially compliant is highly technical, and heavily dependent on the specific wording of the bid documents themselves. The requirement for the names of subcontractors here was clearly material to the owners’ decision, especially since much of the project would be completed by subcontractors.

But, the primary lesson to take away from this case is the court’s focus on the impact to the bid process as a whole. For those bidders who wish to gain an edge, know this – the Courts are forever guided by the need to uphold the integrity of the bid process, and they do not applaud when contractors ‘get cute’ with their bids.

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September 19, 2016 No Sponsor

MEETING SPONSORSHIP For $125.00 you receive:

Acknowledgement at the registration desk

Product display & table centre piece featuring your product or service.

Free full page ad in the Specifier for 1 issue.

On-going discussion with key industry people during the meeting.

Opportunity to make a 5 minute presentation to the membership.

One complimentary meal ticket To book your meeting contact:

Jim Dupasquier [email protected]

To place an advertisement in the SPECIFIER, please refer to page 2.

INDUSTRY CONTACTS

Winnipeg Construction Association (WCA) Ron Hambley [email protected] 204-775-8664

Architectural Woodwork Manufacturers Assoc. of Canada (AWMAC) Curtis Popel [email protected] 204-231-0890

Floor Covering Association of Manitoba Inc. (FCAM) 204-654-9199

Professional Interior Designers Institute of Manitoba (PIDIM)

Stephen Lamoureux [email protected] 204-925-4625

Building Owners and Managers Association (BOMA) Tom Thiesson [email protected] 204-777-2662

Manitoba Association of Architects (MAA) Judy Pestrak [email protected] 204-925-4620

Roofing Contractors Association of Manitoba (RCAM)

Marian Davidson-Boles [email protected] 204-783-6365

Manitoba Masonry Institute (MMI) Jeffrey Dolovich [email protected] 204-794-6128

National Air Barrier Association (NABA) Birgit Dotzlaw [email protected] 204-956-5888

Architectural Building Technologists Assoc. of Manitoba (ABTAM) John Mainer [email protected] 204-956-4727

Manitoba Building Envelope Council (MBEC) Ryan Dalgleish [email protected] 204-956-5888

Construction Safety Association of Manitoba (CSAM) Mike Jones [email protected] 204-775-3171

Canadian Institute of Steel Construction (CISC-ICCA) Gordon Tumilson [email protected] 204-297-6275

Manitoba Chapter, Canada Green Building Council (MBCaGBC) Crystal Bornais [email protected] 204-230-5371 Sustainable Building Manitoba Dan McInnis [email protected] 204-943-1023

Does your association belong on the above list? For any errors and/or emissions, please contact Sarah Panasiuk at [email protected]. Thanks!

October 4, 2016 Sponsorship Available

November 9, 2016 Sponsorship Available

December 14, 2016 Sponsorship Available

January 11, 2017 Sponsorship Available

February 8, 2017 Sponsorship Available

March 8, 2017 Sponsorship Available

April 12, 2017 Sponsorship Available

May 10, 2017 Sponsorship Available

June 2017, CSC GOLF Sponsorship Available

THE WINNIPEG