Steelmac Ltd. v. Nova Scotia (Attorney General)

Steelmac Ltd. v. Nova Scotia (Attorney General) Court Supreme Court Date 2007-05-18 Citation 2007 NSSC 156 Docket 212816 Judge/Registrar/Adjudicator Kennedy, Joseph P. (Honourable Chief Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Steelmac Ltd. v. Nova Scotia (Attorney General), 2007 NSSC 156 Date: (20070518) Docket: 212816 Registry: Halifax Between: Steelmac Limited Plaintiff and The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendant Judge: The Honourable Chief Justice Joseph P. Kennedy Heard: October 10, 11, 12, 2006, in Halifax, Nova Scotia Decision: May 18, 2007 Counsel: Colin D. Piercey for the Plaintiff Michael T. Pugsley for the Defendant By the Court: [1] This action results from a construction tendering process as conducted by the Province of Nova Scotia. [2] On September 26, 2002, the Province, through its Department of Transport and Public Works, issued a call for tenders specific to the provision and installation of concrete slab reinforcement for each of two high schools, Pictou West and Pictou East. [3] The plaintiff Steelmac, a structural steel fabrication and installation business, expressed an interest in bidding those jobs and was provided by the Province with a tender package being a bound volume of materials, one for each job. [4] Prominently attached by rubber bands to the outside cover of each of these volumes was a pre-printed form called a Request for Quotation (RFQ). This was a form created by the Procurement Branch, the part of the Nova Scotia Government which oversees tendering for all departments of Government. [5] Steelmac had experience bidding with the Province for the supply of materials, but this was the first time that it bid to provide services as well. [6] Steelmac concluded that this RFQ form was the document by which the bids were to be made, and submitted its bids using that form. [7] Steelmac was the lowest bidder on each of the two tenders, by $13,262.32 on the Pictou East school and by $11,468.97 on the Pictou West school. [8] However, both of these bids were rejected for noncompliance by the Province, because, it claimed, the bids were made on the wrong form and therefore were not submitted in accordance with the specifications. The contracts were awarded to the only other bidder. [9] Contained in the bound materials - the tender package - provided by the Province for each job was a document titled “Bid Form”. I find that this document was also prominently displayed amongst these materials, being a different colour than other documents. [10] The Province says that this “Bid Form” is the standard form used in construction tendering and is the only form that the Province considers when assessing bids and awarding tenders. [11] Steelmac’s claim is two fold: firstly it argues that by using the RFQ forms to submit its bids, it was using “forms provided by the Department” and therefore in compliance with the bid submission requirements. This terminology is used in the Instructions to Bidders contained in the tender package forwarded by the Province. [12] Secondly, even if the RFQ forms were not the forms that the Province anticipated would be used to submit those bids, Steelmac says that it provided, on the RFQ forms, information that was, in totality, sufficient to constitute compliant bids for both jobs and so, as the low bidder, it should have been awarded the contracts. [13] The failure to complete and submit the “Bid Forms” is the sole basis for the rejection of the Steelmac bids. ISSUES 1. Was a, so-called, “Contract A” created between Steelmac and the Province as to the Pictou school projects? 2. If there was a valid “Contract A”, was it breached by the Province and if so, what measure of damages is Steelmac entitled to? [14] It is clear, I find, that it was the intention of the parties that the submission of bids in response to these calls for tender, when accepted by the Province, would become a binding “Contract A”. [15] This type of contract, specific to the tendering process, was defined in the leading Canadian decision on construction contracts R. v. Ron Engineering & Construction (Eastern) Ltd. [1981] 1 S.C.R. 111. [16] Subsequently, in M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619 Iacobucci J. described the creation of a “Contract A” at para. 23: At a minimum, the respondent offered, in inviting tenders through a formal tendering process involving complex documentation and terms, to consider bids for Contract B. In submitting its tender, the appellant accepted this offer. The submission of the tender is good consideration for the respondent’s promise, as the tender was a benefit to the respondent, prepared at a not insignificant cost to the appellant, and accompanied by the Bid Security. [17] The inviting of tenders by the Province and the bids made in response by Steelmac had the potential to create a “Contract A” if, of course, the bids were proper bids - compliant bids. [18] The Instructions to Bidders contained in the tender packages provided to Steelmac, state as follows as to the process of bidding: 1.8 BID SUBMISSION 1 Submissions: .1 Bidders shall be solely responsible for the delivery of their bids in the manner and time prescribed. .2 Bids must be submitted on forms provided by the Department. These forms must be completely filled out in ink or by typewriter, with the signature in longhand, and the completed form shall be without interlineations, alterations or erasures. Electronic submissions will not be accepted. .3 Submit the executed offer on the Bid Forms provided, signed and corporate sealed together with the required bid security in a closed opaque envelope, clearly identified with bidder’s name, project name on the outside. .4 Improperly completed information, irregularities in bid security, may be cause to declare the bid informal. [Highlights added] [19] The Province reserved the ability to reject bids in some circumstances. [20] The provision of the Instructions to Bidders that specifically addressed the rejection of bids is section 1.9 which reads as follows: 1.9 BID INELIGIBILITY (Reason for Rejection) .1 The Contracting Authority (Minister) will refuse to evaluate a bid which has been received prior to the closing time where: .1 It is not submitted in the required form or bid is submitted by electronic transmission. .2 There are omissions of significant information. .3 A bid is not signed as required. .4 The bid has conditions attached which are not authorized by the invitation to bid. .5 The bid fails to meet one or more standards specified in the invitation to bid. .6 All addenda have not been acknowledged by listing on the Bid Form. .7 Any other defect which, in the opinion of the Contracting Authority (Minister) brings the meaning of the bid into question. [Highlights added] [21] Steelmac suggests that the bids submitted on the RFO forms did not create any of those reasons for rejection. [22] Shane Ross was the Steelmac employee who was involved in preparing and making the bids. He impressed me as a creditable and candid witness. He testified that he believed that the RFQ forms provided by the Province, were the documents upon which to submit the bids. However, he acknowledged that those forms appeared deficient in some respects and admitted that he had concerns about whether they were the proper forms to use. “There didn’t seem to be space on the RFQ for the provision of the usual information that we provide.” [23] As a result he attempted to contact Darrell Spencer, an architect with the Department of Public Works, to address this problem, but was only able to get his voice mail. Ross then tried to access the department’s web site for assistance in preparing the bid, but found that it was “down.” [24] He therefore decided to utilize the RFQ forms by supplying additional information about the nature of the bid, although there was no space provided for such. Ross added to the forms the price that Steelmac was bidding to supply and install all reinforced steel and welded wire mesh. He also confirmed that he had viewed addendums 1 and 2. [25] Ross did not find the “Bid Forms” in the materials provided by the Province until after the tenders had closed. He acknowledged that he did not read all of the materials provided in the tender packages before making the bids. Also included in the materials that he did not read were the “Instructions to Bidders.” [26] I conclude that even a cursory examination of the tender package materials should have disclosed the “Bid Forms” contained therein. The Instructions to Bidders are also easily found. [27] The RFQ forms also contained information and instructions that related to the bidding process. They clearly state in bold and capitalized letters on page 2 that: THE FOLLOWING INFORMATION MUST BE COMPLETED TO ENSURE TENDER ACCEPTANCE. [28] These RFQ forms were created not by the Department of Transport and Public Works, but by the Public Tenders Office of the Procurement Branch. Richard Draper, who now directs that office explained that the RFQ forms were a “tracking form” used to facilitate the Province’s overall “financial management system.” [29] At page 3 of the RFQ forms, the Procurement Branch’s General Instructions to Bidders are incorporated as part of the document. These General Instructions to Bidders say in part: 1.3 Bids must be submitted on the forms provided, or in the format specified by the RFQ. 1.4 Only RFQ forms issued to the Bidder by the PTO are acceptable; DO NOT use copies of RFQ forms received from user agencies, other bidders, or any other source. 1.6 All questions or areas on the RFQ form must be answered, even it if is only to indicate the referenced item is not available; blank items will assumed to be unavailable, and may result in rejection of your bid. 18.4 In the event of discrepancies between these General Instructions and anything in the other documents making up the RFQ, the RFQ will be considered correct. [Highlights added] [30] It is important to distinguish these General Instructions to Bidders from the Instructions to Bidders contained in the bound materials forwarded to Steelmac by the Province. These General Instructions to Bidders were not provided in the tender packages that were sent to Steelmac but were available on the Procurement Branch’s website. [31] The Instructions to Bidders that were provided to Steelmac as part of the bid package make no mention of the RFQ forms. [32] I find that the Province expected both the “Bid Form” and the RFQ form would be completed by the bidders. The RFQ form was attached to the tender package for a purpose. The Province, through its Procurement Branch, required that it be completed by the bidders to satisfy its tender tracking goal. [33] Kenneth Verge was called by the plaintiff. He is now retired but was the purchasing manager in the Procurement Branch at the relevant time. [34] He acknowledged that as such he received “many phone calls from people confused about the RFQ forms.” As a result, the Procurement Branch, subsequent to this bidding process, developed a clearer form - which spells out that it is the “Bid Form” only that is to be used when submitting the bid price. [35] On cross-examination, however, Verge said that in his capacity with the Province he had examined “thousands” of tender bids and this was the only one that was submitted “without a Bid Form.” [36] As indicated, Steelmac submits that the RFQ forms it used to supply its bids were forms “provided by the Department” and therefore, the bids were compliant. [37] However, it argues, that even were the Court to agree with the Province’s submission, that the bids were not submitted on the proper form, it says that the Court should nevertheless conclude that the bids submitted on the RFQ forms in the manner that Steelmac utilized them were substantially and materially compliant as a response to tenders. They were bids that should have been accepted by the Province and created a complete and enforceable “Contract A”. [38] Steelmac submits the case law on the issue of compliance suggests that, absent a requirement in the tender documents for strict compliance, which is the case herein, substantial compliance, or material compliance as it is sometimes called, is the appropriate standard for a bid to be met. [39] The plaintiff asks this Court to consider case law. [40] In British Columbia v. SCI Engineers & Constructors Inc., [1993] B.C.J. No. 248 (C.A.), the bid documents included specific instructions that any corrections made by fax were to reveal only the amount by which the tender was being altered, not the revised total. Prior to the opening of tenders, SCI, one of the bidders, faxed a revision that did not comply strictly with the conditions for a correction as it stated the revised total. Counsel for another bidder argued that the Province was obliged to imposed a standard of absolute strictness upon SCI’s last revision and hold it non-compliant. In finding that the tender was compliant, notwithstanding that it failed to strictly adhere to the conditions for a correction, McEachern C.J.B.C. for the British Columbia Court of Appeal stated at para. 17: With respect, we think there are no circumstances in this case which requires the Crown to apply a strict rather than substantial compliance test, particularly when the Crown was satisfied that no confusion was caused by the last revision. [41] The substantial compliance test finds further support in the seminal decision in Ron Engineering, supra, where Estey J. Noted that: It would be anomalous indeed if the march forward to a construction contract could be halted by a simple omission to insert in the appropriate blank in the contract the number of weeks already specified by the contractor in its tender. [42] In J. Oviatt Contracting Ltd. v. Kitimat General Hospital Society, [2000] B.C.J. No. 1196 (S.C.), a bid had been rejected because, amongst other things, the contractor failed to include four out of the eight pages of the Tender Form and therefore failed to complete eight blanks on those four pages. As in SCI Engineers, supra, an issue arose as to whether Oviatt was in fact a compliant bidder. Hunter J. of the British Columbia Supreme Court concluded that the omission of four pages from the tender form was not a failure to comply with the bid requirements and stated at para. 46: I have concluded that despite Oviatt having not included four of the eight tender form pages in its bid, and having not completed the “blanks” on those pages, to which I have already referred, that Oviatt does not by reason of those omissions fail the “substantial compliance” test ... [43] Hunter J. noted that the information required by the pages that Oviatt failed to complete was contained elsewhere in the submitted documents. [44] In Heath Care Developers Inc. v. Newfoundland, [1996] N.J. No. 149 (C.A.), Cameron J.A. for the Newfoundland Court of Appeal said at para. 52: The trial judge held that because of the nature of the call some exercise of judgment would be anticipated by the bidders and that bids would not be rejected for minor variation from the functional program; but, those bids that misinterpreted the functional program or required major reworking of design should be rejected. This position is a practical and reasonable method of dealing with this difficult situation. Substantial compliance with the conditions of the tender call is the test (British Columbia v. SCI Engineers & Constructors Inc. et al. (1993), 22 B.C.A.C. 89). [45] Steelmac says that recent case law would suggest that a more relaxed attitude has developed toward omissions which do not go to the root of the contract. As was noted in Mardave Construction Ltd. v. York (Regional Municipality) (2006) O.J. No. 2237 (S.C.) at para. 29: Relevant case law established that there is a more “ ... relaxed attitude to formalities to such things as the bidder leaving blank spaces where the information was available elsewhere in the documentation ... failure by the bidder to disclose its references in the exact manner required by the tender documents ... the faxing of a revision by a bidder which did not comply with one of the conditions of tender which governed faxed revisions ... and the variation by the bidder of a completion date from the “milestone” date in the tender documents ...”; Tectonic Infrastructure Inc. v. Middlesex Centre (Township), [2004] O.J. No. 4933 at para. 114. [46] Steelmac suggests further that several recent decisions indicate that the substantial or material compliance test has met with approval and been adopted in Nova Scotia. In Winbridge Construction Ltd. v. Defence Construction (1951) Ltd., [2004] N.S.J. 50 (C.A.), the Trial Judge was quoted by Chipman, J.A. as saying: I find that Lefarge’s tender was compliant and capable of acceptance in that it provided all of the information required and necessary ... [para. 15] [47] The Appeal Judge then finds: I am of the opinion that Boudreau, J. did not err in his decision that Lafarge was a compliant bidder ... In my opinion Lafarge complied in substance with what was required ... [para. 17] [48] Steelmac says this case law suggests that substantial or material compliance with the tender specifications is the standard that Steelmac’s bids must meet. [49] In the present case, it is submitted that a review of the tender documents suggests that a substantial compliance test is most appropriate in the circumstances. Provision 1.15.2 states that: .2 Acceptance of Offer .1 The Minister reserves the right to accept or reject any or all offers or to accept any offer deemed most satisfactory. The Minister reserves the right to waive any informality in any or all Bids. [50] Steelmac suggests that this is similar to wording used in the Oviatt, supra, documents which read: ...had the separate right to waive irregularities in the tender form if in the Hospital’s discretion such irregularities are of a minor or technical nature. [51] Steelmac says the RFQ forms submitted were certain as to unit price and extended price. There was no Bid Bond, Performance Bond, Labour/Material Payment Bonds, certified cheque or letter of credit required. No deposit was required. [52] Steelmac argues further, that the entire tender specifications for trade package 4.16B and 4.16C were incorporated by reference into the RFQ form. By incorporating the contract and technical documents the bids cannot be said to omit material facts such as would render the RFQ forms submitted non compliant. [53] Finally, in support of its claim Steelmac refers to two architects’ letters dated “2002.10.10". These letters were sent to the Department of Transport and Public Works by W.H.W. Architects Inc. This was a firm retained by the Province, relative to these jobs. Part of their retainer involved assessing the bids. Each letter is exactly the same except in the reference to the specific tender. The letters say: We found the lowest Bid information to be within the estimated budget and complete, in accordance with DTPW requirements in the Instructions to Bidders, as no Bid Bond or Consent of Surety documents were required. However the bid information was not written on the bid form provided. If this informality is acceptable to DTPW, we recommend acceptance of this bid from Steelmac Limited. [54] Steelmac stresses that this is the determination of the Province’s own architects recommending acceptance of the Steelmac bids. [55] It stressed that the architects found that its bids were “complete” and referred to the failure to utilize the “Bid Forms” as an informality. [56] What we have here, says Steelmac, is substantial compliance no matter what forms were used. These were compliant bids made in response to the Province’s offer. There was a “Contract A”. [57] The Province has breached that contract by refusing to give the lowest bidder, Steelmac, those two jobs. [58] The Province disagrees with the plaintiff’s submissions. [59] Firstly it suggests that it was basic to a proper bid application that the tenderer thoroughly read all of the tender documents and specifications that the Province provided to potential bidders, which included the Instructions to Bidders, prior to submitting the bids. Had Steelmac done so it should have concluded that the clear instruction was that it was the “Bid Form” that was being provided to be used in making the bids and that the RFQ form was a collateral form designed to accomplish a different purpose. [60] It was Steelmac’s neglect to accomplish this obvious and necessary prerequisite, says the Province, that lead to the failure of its bids and resulted in this litigation. [61] The “Bid Form” was a three page document which in addition to a space designated for the “tender price” also contained a commitment by the tenderer to complete the contract by a date set out in the construction schedule. Further, it contained commitments by the tenderer to numerous conditions. [62] By the use and submission of the “Bid Form” the bidder agrees to the following terms at p. 1: The undersigned Bidder agrees if awarded the Contract on this Bid to achieve Completion of this Tender Package 4.16C Concrete Slab Reinforcing. .1 Completion on or before the date shown on the Construction Schedule, Section 01010, providing contract is awarded within 14 calendar days of bid closing time. 1. The Bidder agrees that he has: .1 Carefully examined the site of the work described herein; become familiar with local conditions and the character and the extent of the work; carefully examined every part of the proposed Contract and thoroughly understands its stipulations, requirements and provisions. .2 Determined the quality and quantity of materials required; investigated the location and determined the source of supply of the materials required; investigated labour conditions; and has arranged for the continuous prosecution of the work herein described. ... 2. The Minister agrees to examine this Bid and in consideration, therefore, the Bidder hereby agrees not to revoke this Bid: .1 until some other Bidder has entered into the Contract with the Minister for the performance of the work and the supply of the materials specified in the notice inviting Bids or in the Instructions to Bidders, or .2 until sixty (60) days after the time fixed in the Instructions to Bidders for receiving Bids has expired. Whichever first occurs; provided, however, that the Bidder may revoke this Bid at any time before the time fixed in the Instructions to Bidders for receiving Bids has expired upon receipt by the Minister from the Bidder of written notice of such revocation before said time has expired. 3. The Bidder hereby agrees to be bound by the award of the Contract and if awarded the Contract on this Bid to execute the required Contract within ten (10) days after notice of award. 4. The Bidder hereby acknowledges receipt of the following addenda; The undersigned Bidder declares that this Bid is made without connection with any other person(s) submitting Bids for the same work and is in all respects fair and without collusion or fraud. [63] The Province agrees that while the RFQ form submitted by Steelmac did contain the price on units and acknowledged receipt of the addenda, but points out that it did not contain the other commitments and acknowledgements set out in the “Bid Form”. [64] Darrell Spencer testified on behalf of the Province. He is the Department of Public Works architect who drafted the “front end” specifications that were sent to Steelmac as a potential bidder. He was the government official who Steelmac tried unsuccessfully to contact prior to submitting the bid. [65] He “evaluated” the bids submitted. He recommended rejection of the Steelmac tender, notwithstanding that it was the lowest bid, because no “Bid Form” was completed and submitted on either job. [66] He explained that he considered this omission to be fatal to the bid. The “Bid Form” contains acknowledgements and guarantees that are not included in the RFQ form and which he described as crucial to the bid. [67] He was asked about the letters from the architects - the letters referring to the failure to submit “Bid Forms” as an “informality” and recommending acceptance of the Steelmac bids. [68] Spencer explained that the architects are not potentially liable if the tendering process is not properly conducted, but the Province is. [69] The Province, he said, has a responsibility to be fair to all bidders, to make sure that everyone plays by the same rules. [70] The obligation of the owner to treat all bidders fairly is well set out in Martell Building Ltd. v. Canada [2000] 2 S.C.R. 860 at p. 895: The court held that the tenderers would not have submitted a bid unless it was understood by those involved that all bidders would be treated fairly and equally. “Implying an obligation to treat all [pg. 895] bidders fairly and equally is consistent with the goal of protecting and promoting the integrity of the bidding process and benefits all participants involved...” [71] Spencer’s supervisor, Donald Beaton, also testified. He also reviewed the Steelmac tender and agreed with the Spencer recommendation to reject it. [72] He also stressed the necessity of following the rules established by the Province, the need for consistency in reviewing bids. “We would anticipate that other bidders would complain if we accepted ...” Steelmac’s bid submitted on the RFQ form. [73] The general contractor, EllisDon also evaluated the Steelmac bids. Unlike the architects, the contractor recommended that the bids be rejected. It sent two letters to the Province dated 10/11/2002, identical but for the reference to the specific school. Each letter said in part: We have reviewed the low bid for Tender Package 4.16C concrete slab reinforcing submitted by Steelmac Ltd. and recommend this tender be rejected. Steelmac Ltd. did not provide their bid on the proper tender form. [74] These letters were signed by Dan Quan as Senior Project Manager. He testified that the general contractor has a role to play as an independent reviewer of the bids submitted. He said the use of the proper “Bid Forms” was significant because that form contains assurances as to quality and quantity of materials. These are commitments that the general contractor wants to see incorporated into the contract. This witness agreed that he has not examined the RFQ form submitted to see what they contained. [75] In summary, the Province argues that the Steelmac bids were not compliant bids made on the forms provided by the Province. [76] It submits that its duty to the integrity of the tendering process requires it to treat all bidders fairly and dictates that the Province only consider bids that are strictly compliant. [77] The Province argues that even were substantial compliance to be the test applicable, these bids fell short because the RFQ forms did not provide acknowledgements and assurances that are made when the “Bid Forms” are utilized. FINDINGS [78] First let me say that the RFQ form was, as Steelmac’s evidence suggested, a confusing document. Its function in the scheme of this bidding process was obscure. The form seems to be designed for a purpose other than construction bidding and yet directs potential bidders that it must be completed “to ensure tender acceptance.” Its being attached to the outside of the Bid Package materials served to confirm its significance. [79] The evidence disclosed that the Procurement Branch has now replaced the RFQ form with a simpler - clearer form to be used in construction bidding and this is a positive development. [80] Although the RFQ form was made very much a part of this bidding process, I do not agree with Steelmac’s submission that it was a form “provided by the department” and hence its use resulted in a compliant bid. [81] The resolution of this matter is not that simple. It is true that the RFQ form was a form provided by the Province (if not the department) however it was not the only form provided. [82] A cursory examination of the tender package material by Steelmac would have disclosed the “Bid Form” and the Instructions to Bidders that reference that form. [83] There is not the ambiguity connected to the “Bid Form” that exists with the RFQ form. Rather, I find, after examination of the “Bid Form” that it is manifestly designed to accommodate construction bids. [84] When one reads the Instructions to Bidders contained in the Bid Package and then examines the “Bid Form” a reasonably literate person would determine that whatever the purpose of the RFQ it is the “Bid Form” that is to be used to make the bid. [85] But were Steelmac’s bids, although submitted on the wrong form, nevertheless bids that the Province should have accepted? [86] Firstly as to the applicable test for compliance. [87] The Province has argued that strict compliance is the required test to be applied to public tenders in order to protect the integrity of the public tendering system. [88] I see no reason why the acceptance of a low bid that was not strictly compliant, but nevertheless provided the information - acknowledgements and assurances that the Province determined to be necessary would compromise the bidding process. Turning down low bids for frivolous reasons would, on the other hand, be harmful to the public tendering system. [89] After having heard Steelmac’s argument and having reference to the case law cited, I agree with Steelmac and conclude that the substantive compliance test is the standard properly applied in this case. [90] If the bidder provides what the owner needs to know it doesn’t seem to me that the failure to use the anticipated form is all that significant. [91] The problem that Steelmac has in this case is that it didn’t provide the information and the assurances that the Province required. [92] The acknowledgement and the assurances contained on the “Bid Form” are not on the RFQ form that Steelmac used. [93] For instance, the “Bid Form” requires the bidder to confirm that it has carefully “examined the site of the work described herein.” [94] Steelmac’s witnesses testified that it was already on the site in another capacity to the knowledge of the prime contractor and presumably to the department. That information though is not the same as a written confirmation that it had carefully examined the site. [95] The “Bid Form” requires confirmation that the bidder has “carefully examined every part of the contract and thoroughly understands its stipulations, requirements and provisions.” No such assurance is contained in the RFQ form. [96] The “Bid Form” requires the bidder to agree that it “Determined the quality and quantity of materials required; investigated the location and determined the source of supply of the materials required; investigated labour conditions; and has arranged for continuous prosecution of the work herein described.” No such assurances is contained in the RFQ form. [97] In the “Bid Form” the bidder agrees to be “bound by the award of contract and if awarded the contract on this bid to execute the required contract within ten (10) days after notice of the award.” No such assurances contained in the RFQ form. [98] Finally, in the “Bid Form” the “undersigned declares that the bid is made without connection with any other persons submitting bids for the same work and is in all respects fair and without collusion or fraud.” No such assurances contained in the RFQ form. [99] The prime contractor on these jobs, EllisDon considered these assurances by the bidder to be significant. That is why its operation manager, Don Quan told the Court that it recommended to the Province that the bids be rejected. Of particular significance to the prime contractor were the assurances as to quantity and quality of materials. [100] It was pointed out by the plaintiff that Quan had no recollection of having examined the Steelmac bids on the RFQ forms, however had he done so he would not have found the assurances he sought. [101] Steelmac submits that although the RFQ form does not state the acknowledgement and assurances that the “Bid Form” provides, they are nevertheless incorporated into the RFQ form by reference. The process by which this is said to be accomplished is convoluted. [102] The RFQ form at p. 3 read, “by submitting your response to this Request for Quotation you acknowledge that you have read and complied with the applicable Procurement Branch documents.” And below the applicable document is identified as the General Instructions to Bidders which is available on the Procurement Branch web site (but not contained in the Bid Package forwarded to Steelmac by the Province). [103] The General Instructions to Bidders turns out to be fifteen pages of general information pertaining to public bidding in Nova Scotia. [104] Steelmac specifically references para. 18.11 at p. 14 of this document. It reads: “All the terms and conditions stated or referenced in the RFQ are assumed to be accepted by the bidder and incorporated in the bid.” Steelmac says that referenced in the RFQ form is the entire trade package; Pictou East in one, Pictou West in the other. [105] Therefore, says Steelmac, by using the RFQ form it acknowledged that it had read and complied with the General Instructions to Bidders which in turn requires its acceptance of all of the terms and conditions referred to in the RFQ, therefore the terms and conditions of each trade package referred to therein. [106] These trade packages, says Steelmac, included the entire materials and bid specifications provided to Steelmac by the Province, including the “Bid Forms” and the acknowledgements and assurances contained therein. [107] Steelmac argues that through this reference and incorporation combination it, by use of the RFQ forms, provided all of the acknowledgements and assurances that were contained in the “Bid Forms” just as surely as if it had actually used and executed those “Bid Forms” in the submission of its bids. [108] The reality that Steelmac not having read tall he tender package materials, didn’t know that the “Bid Forms” existed when it executed the RFQ forms does not appear to shake Steelmac’s confidence in this submission. [109] I find that this suggested process by which Steelmac is said to be substantially compliant, does not provide the acknowledgement and assurances that the “Bid Forms” would have accomplished. [110] The commitments made by use of the “Bid Form” are clear, unequivocal, and potentially enforceable. This is not the case when the RFQ forms are used. [111] I have no confidence that process of incorporation that Steelmac submitted gives the RFQ forms the same ability to commit the bidder, in fact does so. [112] It might be argued for instance that the reference to the trade package in the RFQ forms serves only to identify the job being bid on and does not result in the totality of the trade package being confirmed and adopted by the bidder. [113] This is not substantial compliance. [114] I conclude that by using the RFQ forms to submit its two bids, Steelmac was not compliant with the tender instructions and therefore in the circumstances the Province was acting correctly when it rejected the two bids. [115] There was no “Contract A” created between Steelmac and the Province with respect to these two construction projects. [116] There was no breach of contract committed by the defendant herein and so no damages to be awarded. [117] If unable to agree, I will hear counsel on the subject of costs. Chief Justice Kennedy