At the Grand Valley Construction Association’s PACE event on October 17, guests learned about various aspects of modern construction procurement, including changes to the Construction Act, pitfalls in the bidding process, and the updated CCDC23 guide to calling bids and awarding contracts.

The session began with a briefing from Ted Dreyer, a partner in Madorin, Snyder LLP and a GVCA director, who threw some light on the new sections of the Construction Act, including prompt payment.

Dreyer led the audience through the pitfalls on prompt payment – dwelling at length on the fixed timeline schedules – and discussing the as-yet-untested adjudication process.

The timelines for prompt payment are clearly laid out in the legislation, but according to Dreyer, not every element of the process is as clear. For example, “The act is silent on how a proper invoice is to be delivered,” he said, even though it is the delivery of a proper invoice that kick-starts the timeline.
He told his audience that there are a number of critical issues in the new process – the presentation of a “proper invoice” is “really critical,” and it is “wise” to deliver invoices both to the owner and to the consultant, “unless the contract says otherwise.”

The discussion then turned to a round table on the bidding process. Participating were Leslie Williamson, Manager, Purchasing and Risk Management for the Town of Milton; Ryan Scott, Manager of Procurement, Corporate Services Department for the City of Cambridge, and Jeff Shantz, Vice President, Project Development, of Melloul-Blamey Construction Inc.

Williamson kicked off the three-part presentation with a checklist of best practices regarding responding to RFPs. Some seemed obvious – until she pointed out that all were arising from real-life snafus.

Scott followed, explaining that when an owner issues a request for tenders, “We’re looking for a strong bid response – five plus bids.” He added that, “we are looking for contractors who have the expertise and the experience” that the project requires. He also called on contractors to provide their own feedback into the bidding process. Questions don’t often come from contractors, but are welcomed—particularly during the process, “while the bid is still on the street.”

He also suggested that municipal owners appreciate being told if contractors are aware of other projects that might be competing for contractors’ time and attention. “Make us aware of competing projects,” he said.

Shantz brought a different perspective to the panel. He took the opportunity to suggest improvements that could be adopted by owners, including the municipal sector, when calling for bids. He suggested that the timelines of RFPs are often very tight. Often the deadline is 15 days; on larger projects, he said, “We would appreciate at least 21 days.”

He also underlined a problematic time frame – the 90 to 120 days before a project is awarded. That leaves a three-month period while the contractor “has resources you don’t know what you’re doing with,” he said. “As contractors, we don’t like that… What are we supposed to do with people we have on the shelf?”

The session concluded with a presentation from Geza Banfai, a Counsel to McMillan, and the ex officio legal representative on the Canadian Construction Documents Committee. He explained that the new CCDC23 guide to calling bids and awarding construction contracts, is a strong update to the previous iteration of the document that reflects industry standards.

He highlighted what he termed the best “tidbits” in the document, including a clear definition of “what duty of fairness means in practice”; and eleven things that invitation to bid document should contain – “if you just follow the recipe in 23, you should be okay”.
He also called attention to elements of CCDC23 that offer answers to difficult questions. For instance, if a call for bids results in a single bid, the answer should be “accept it, if it is compliant and within budget.”

If two bids are tied, the answer, he said, is “a coin toss.”

If all bids come in over budget, he suggested, the answer lies in the expectations of the owner. “The owner needs to realize that if everyone is over budget, you have to buy the Chevy and not the Mercedes.”

The session concluded with a short wrap-up from Andrew Bousfield of ABA Architects, who called on attendees to focus on the need for collaboration across the sectors of the industry.

He asked, “Do we actually share a common ground?” and concluded, “Each of us may have very different goals, but that doesn’t mean we can’t collaborate.”

He offered the opinion that while “CCDC is moving toward opportunities for more collaboration,” the Construction Act “is creating more complexities and driving more distance between the parties involved… Prompt payment creates the antithesis of collaboration.”

He suggested that the answer to this challenge is, in fact, that “The Construction Act means we will have to be more collaborative” in order to avoid the new adjudication process. “It’s going to be more and more important for us to be more proactive,” he said – positive final words in a jam-packed and successful workshop session.