3.1.4. Tension Resolution

The necessity to obtain the Treasury Board's approval through the derogation procedure creates legal and operational uncertainty for public bodies as well as tenderers since public bodies cannot rely on standardized procedures, guidelines or manuals to adequately supervise the collaborative mechanisms essential to the implementation of BIM or IPD. Furthermore, the RFI, ROM and CCM mechanisms represent a proposal conformity validation exercise and not BIM collaborative workflows such as group modeling or interference workshops. Since there are no mandatory topics in CCMs, there is no obligation, or guidance, to connect the stakeholders' BIM experts to analyze or assess the tenderer's team capacity to interact, cooperate and collaborate in person. Coupled with the legal uncertainty caused by the lack, see the inexistence, of jurisprudence concerning collaborative procurement practices in Quebec, public bodies and tenderers are stuck in a normative fog complexifying the pathway for integrated practices implementation. Infra-regulatory rules such as directives, manuals or guidelines could help clarify the expectations of tenderers, standardize collaborative mechanisms, reduce legal and operational uncertainty and gain predictability for public bodies and tenderers.

The current selection process is also characterized by a hyphenation between four major entities: the client, the SQI, the master team and tenderers. This hyphenation is only filled by the selection of candidates who have formally rather than substantially demonstrated their ability to carry out a project in a BIM context and by the transmission, at the RFP stage, of documentation and data regarding BIM. This hinders upstream contributions to the project and is in contradiction with the Paulson curve, whereby the more changes in a project are made upstream of the process—that is, at the time of design—the less expensive they will be to implement (Paulson 1976). This hyphenation is furthered by the absence of a mention in contractual documents about whether the reference models for the realization phase of the project are the ones developed by the master team or the ones advanced by the tenderers during the selection process. Stating in the contractual documents that 3D models developed by the winning tenderer serve as the basis for future development of the design could effectively ensure continuity and clarity during the selection process.

Another issue is finding balance between sharing non confidential ROMs and RFIs to ensure fairness and the necessary confidentiality to ensure tenderers can add value to projects without losing their competitive advantage. A possible solution would be to consider a more punctual vision of fairness, that is up to a submission of an initial proposal. From that point on, public bodies could entertain bilateral negotiations with one or multiple tenderers, whether through a rank-and-run or best and final offer (BAFO) process to ensure value creation.

Rank-and-run enables public bodies to engage in negotiations with the highest scoring tenderer and with subsequent tenderers in case the initial negotiation fails, while BAFO allows public bodies to entertain individual discussions with each tenderer to enhance their propositions before a final proposal submission. Negotiations and discussions must ensure the fundamentals of the solicitations as well as those of the proposals are preserved and allow the public body to iron out the finer and more confidential aspects of propositions, whether technical or financial, to achieve more value for the project (Lawther 2007). Including these processes in Quebec's legislation and regulations would help strike balance between fairness and value-creation.

## *3.2. Award Criteria*

Quebec's construction contracts regulation provides for either a one-stage lowest tenderer approach or a two-stage RFQ/RFP process for construction works. During the RFQ, the quality of tenderers is evaluated using a minimum of three criteria, which may notably include similar projects recently executed, the experience of a contractor, the ability to ensure efficient project management and the experience of key personnel. The second stage consists of inviting selected contractors to submit a tender including a price and the contract is awarded to the lowest compliant bidder. Quebec's service contracts regulation provides only for quality evaluation of professional service providers through multi-criterion weighting. The contract is awarded to the tenderer obtaining the highest final score.

As for mixed contracts for construction work and professional services, public bodies can use one-stage or two-stage processes. In a one-stage process, public bodies must use multi-criterion weighting and the k coefficient formula. The contract is awarded to the lowest adjusted price tender. In a two-stage tendering process, the RFQ is used to evaluate the quality of tenderers and the RFP can either evaluate only price or price/quality. In the case of the former, the contract is awarded to the lowest compliant tenderer while in the latter, it is awarded according to the lowest adjusted price tender.
