Calls for tenders: How the related-work concept applies when determining required licences

When a contractor is asked to submit a bid pursuant to a call for tenders, it obviously must ensure that it holds all the licence classes required for the planned project.

Generally, tender documents do not specify the numbers of the required licences, leaving it up to bidders to determine them.

The client will, however, require a declaration from each bidder stating that it holds all required licences and is in compliance with applicable legislation.

To determine which licences are required, bidders must determine the main purpose of the call for tenders, i.e. the nature of the proposed work.

In some cases, each bidder must determine if the licences it holds will allow it to perform the related work, or if it risks being disqualified, or legal sanctions if its bid is successful.

The concept of “related work”

The Quebec Court of Appeal recently ruled, on two occasions, on the concept of “related work,” which allows the holder of a licence class to qualify for the performance of work coming under another class.¹ In doing so, the Court had to interpret section 11 of the Regulation respecting the professional qualification of contractors and owner-builders (the “Regulation”).²

The Court concluded that “[TRANSLATION] … related work is subjacent to the main work, or at least is required to ensure or enhance its functionality, quality or sustainability….”³ The Court also specified that “the concept of ‘similar or related work’ is meant to be flexible in order to allow contractors to perform work closely related to that covered by their licence subclass.”⁴ The concept of related work must be applied flexibly, and each case is sui generis.

In addition, the fact that all the work is covered by the same contract does not necessarily mean it is related.

Practical examples

Here are some practical examples where courts have ruled on the relatedness of certain work:

• In Action Progex inc. c. Société québécoise des infrastructures,⁵ the Superior Court concluded that work consisting of rock anchoring, drilling an elevator shaft and installing a sheath so rock fragments would not fall into the shaft was neither similar nor related to the work involved in preparing the excavation base. The judge stated that “[TRANSLATION] the concept of relatedness does not correspond to physical proximity, convenience or sequential logic.”⁶
• In Paradis Aménagement urbain inc. Construction de défense Canada (1951) Limité,⁷ the Court of Appeal found that connecting pipes to municipal water mains, constructing culverts and moving a hydrant located in a street right-of-way, was work related to the purpose of the contract, namely adequate drainage of residential backyards and the construction or refurbishing of sheds.
• In Ville de Québec Paradis Aménagement urbain inc.,⁸ the Court of Appeal concluded that electrical work to connect the retractable bollards installed outside a building was related to the installation of the bollards. The work could therefore be subcontracted by the contractor holding licence 1.4 to an electrician holding licence 16.
• In Directrice des poursuites criminelles et pénales Climatisation BS inc.,⁹ the Court of Appeal acknowledged that a contractor specialized in ventilation and refrigeration could subcontract to an electrician the electrical work involved in replacing the electrical distribution panels required for installing heat pumps.
• In E. Pageau inc. c. Société des établissements de plein air du Québec¹⁰, the Superior Court concluded that the installation of a new parking lot access control and payment system was not related to the construction of three buildings, as the two projects were distinct and independent of each other.

Takeaways

Determining what licences are required is a mixed question of fact and law, and each case is sui generis. Where the tender documents do not specify the licences required, it is critical to fully grasp the purpose of the contract in order to identify them.

Among the tools available to the client or bidder are the descriptions in the Regulation and the explanations provided by the Régie du bâtiment du Québec in its application guide to Schedules I, II and III of the Regulation.

In addition, it is possible to ask the Régie du bâtiment questions directly, via a request for regulatory interpretation. However, it is important that the premises of the request be accurate. It must be noted, however, that the courts are not bound by the Régie du bâtiment’s answers, although they generally do consider them.

Finally, if in doubt we suggest you consult a lawyer specialized in this area or, depending on the nature of the problem, a qualified technical specialist.