Arnco Construction and Excavating (Arnco) is suing the Town of Hawkesbury for damages for breach of contract and loss of profits for failing to award Arnco (1351150 Ontario Inc.) a construction project in 2014. The company alleges that it suffered $872,058.70 in loss of profits as a result of not being awarded the construction contract.

Thomas Arnold, owner of Arnco, says his company was “unjustly disqualified” by town staff and the engineer during the bidding process for the Phase II reconstruction of Cartier Boulevard in Hawkesbury. Arnco had been awarded the contract for the first phase of work on Cartier Boulevard.

According to Arnold, the process has been “totally discouraging” and “unbelievably expensive” to pursue its case against the Town of Hawkesbury.

“It’s an awful thing when you have to sue a municipality,” says Arnold, who says that his company tried everything it could prior to the contract being awarded.

Although the matter has now been set down for trial, before that, Arnco underwant its first examinations for discovery in January 2015. That was adjourned to be continued after a damages brief was to be provided by Arnco. That brief was provided in January 2016, with the examination for discovery scheduled to continue in August 2016.

But the August 2016 examination for discovery was again adjourned pending receipt of a more detailed damages brief.

A detailed brief was later provided and the parties agreed to proceed using written interrogatories to save on expenses with continued examinations. After receiving answers to some questions it sent to Arnco in November 2016, the Town of Hawkesbury wanted more information about Arnco’s efforts to migitate its damages and requested copies of the company’s financial statements for 2011 up to and including 2016. In 2017, the company provided information regarding mitigation but refused to produce the financial statements.

The Town of Hawkesbury brought a motion in October 2017 requesting that the company provide its financial statements as well as answer “all proper questions posed during its written examinations for discovery.”

That motion was heard by O’Bonsawin J., who concluded that the written answers were sufficient, but that the financial statements should be produced by Arnco.

In February, the court ordered Arnco to produce its financial statements and said that Hawkesbury would be allowed to examine an Arnco representative for up to three hours on the documents. That court order also noted that Arnco, not Hawkesbury, had been the one to set the action down for trail, without Hawkesbury’s consent.

Six companies were disqualified out of 10 bidders in 2014

Arnold says that his company was not the only one disqualified. Most of those involved in the awarding of the contract were removed or were let go by the Town of Hawkesbury in the months after the contract was awarded, Arnold says. He says his company owns property in Hawkesbury and operates primarily in Ontario.

Hawkesbury’s mayor, Jeanne Charlebois, says that this happened before her time and because the matter was in litigation, she had little to say except that it is still in litigation.

In the March 3, 2014 Town of Hawkesbury report provided to The Review upon request, signed by treasurer Chantal McLean-Leroux, Director of Technical Services Pierre Gagnon and Director General Jean-Yves Carrier, indicated that the town would confirm the details of the contract with Landrock Excavation; its bid of $2,959,000, which was $1,027,424 less than the project estimate of $3,986,424 provided by the Ainley (engineering) Group, was also about $700,000 lower than the second-lowest bid. The report says that the town would confirm with Landrock the details of the project to make sure that Landrock understood the project requirements and that all of the work detailed in the submission document was included in the price.

The work included replacement of the sanitary sewer, the storm sewer, the water main and the reconstruction of part of Cecile and Cartier Boulevards.

The tender bids were reviewed by the town’s Director of Technical Services, the Public Works Superintendent, the town’s planner and the consulting engineer, Roger Quesnel, from the Ainley Group.

The report says that 10 submissions were received and all were in conformance but only four qualified to be considered for the tender.

The process included:

an obligatory site visit
A two-envelope system (submission and financial proposition)
Conformity of submitted documents
Qualification of contractors (five criteria of evaluation where the passing mark was a minimum of 70% and
Financial evaluation of qualified propositions.

The four companies which qualified and were ultimately considered for the contract were:

Landrock Excavation, $2,959,000

Hawkesbury Transport and Excavation, $3,659,386

9275-0082 Québec Inc. (Uniroc Construction), $3,788,155

Robert Excavation, $4,008,050.