Public tenders: does the failure to file a prior complaint bar a claim for damages?
Public tenders: does the failure to file a prior complaint bar a claim for damages?
In Transport Martin Forget inc. c. Municipalité de Saint-Alexis, 2026 QCCA 1254, the Court of Appeal of Quebec held that failing to challenge the terms of an RFP through the complaint mechanism provided under the Municipal Code does not bar a claim for damages arising from the rejection of a bid.
In this case, the disputed requirement was the obligation to hold a licence from the Régie du bâtiment du Québec, even though no such licence was required to perform the snow removal and abrasive spreading work covered by the specifications.
The Court rejects the trial judge’s view that the complaint mechanism was intended to protect small municipalities against judicial proceedings brought after bids are opened. According to the Court of Appeal, this complaint mechanism rather seeks to ensure transparency and fair competition, rather than confer immunity from claims for damages.
On this point, the Court distinguishes Sintra inc. c. Municipalité de Noyan, 2019 QCCS 4293, where the relief sought on the merits was to prevent the performance of the contract and secure its award to the plaintiff or, alternatively, to have the RFP cancelled. At the provisional injunction stage, where the plaintiff sought to prevent the municipality from entering into the contract with the lowest bidder, the Superior Court considered the plaintiff’s entitlement to relief on the merits was doubtful because it had failed to challenge the tender requirements before the municipality and then before the Autorité des marchés publics before seeking the court’s intervention.
The Court of Appeal considered that case distinguishable because the present proceedings involved a claim for damages—a remedy the AMP cannot grant.
Since Sintra was not decided on the merits, the question therefore remains open for proceedings in the nature of judicial review challenging the legality of tender requirements. In such cases, is exhaustion of the complaint mechanism a mandatory prerequisite to the exercise of the Superior Court’s powers of judicial review?