In a cautionary tale for anyone who bids in a public tender (and of interest to public authorities), the High Court dismissed a challenge to a local authority's decision to reject an electronic tender by a firm that forgot to attach files to its electronic submission. The Court ruled that it was not disproportionate, unfair or discriminatory to disallow a bid on the basis it was incomplete, with required attachments only being submitted after the deadline.
JB Leadbitter & Co was one of 25 companies invited to electronically tender to Devon County Council (DCC) for a framework construction contract. The Invitation To Tender's stated requirements (that Leadbitter admitted it had understood) were that bids must be: (i) submitted by the fixed deadline of 12pm on 16 January 2009; (ii) contain four completed case studies; (iii) made by uploading one electronic submission (which could not be amended) containing all documents to a secure portal.
In this case, the deadline was extended to 3pm on 16 January after one of the tendering firms had suffered a power failure, which prevented it meeting the original deadline. DCC confirmed this extension to all tenderers by email at 11.13am.
Leadbitter took advantage of this revised deadline to review its tender and uploaded the submission at 12.05pm. However, at 2.45pm Leadbitter noticed that the four completed case studies were not uploaded. Leadbitter tried to upload them but was unable to do so as no additions to tender submissions could be made. Leadbitter phoned DCC at 2.59pm to inform them of this. The case studies were later emailed to DCC at 3.26pm who were asked to consider them, but DCC rejected Leadbitter's tender on the basis that it was not complete and not submitted by the revised deadline.
Leadbitter brought an action claiming that DCC had breached its obligations under the Public Contracts Regulations 2006 to (i) treat tenderers equally; (ii) select the most economically advantageous tender; and (iii) act proportionately. The Court however, rejected each of those three arguments as summarised below:
Equal treatment: Leadbitter argued that DCC had not treated it equally compared with other bidders pointing to DCC's deadline extension due to a power failure experienced by another bidder. However the Court viewed the circumstances as "objectively very different" from those of Leadbitter's, as it was due to an issue beyond that bidder's control.
Generally, DCC was required to observe the ITT rules to ensure fairness to all tenderers and acceptance of Leadbitter's late tender could have resulted in an advantage, which was not available to others. Any waiver of the equal treatment requirement could create a potential for abuse.
Most economically advantageous tender: The Court did not agree that DCC had denied itself the chance to identify the most economically advantageous tender because the ITT rules had been applied in a way that was transparent and fair.
Proportionality: DCC had not applied a disproportionate sanction by failing to consider Leadbitter's tender on the basis of the missing attachments. The Court ruled that DCC did have a margin of discretion but that "a deadline is a deadline" and on the facts the decision to reject the tender was "well within" that margin.
The Court also considered circumstances, in which acceptance of late submissions may be proportionate, the most obvious being if resulting from "fault on part of the procuring authority". However, the Court noted that this was discretionary on the authority and not a requirement - in any event in this case, the fault here was on the part of the bidder, Leadbitter.
Whilst it's not difficult to identify with Leadbitter's frustration, this case clearly demonstrates that public authorities are entitled to (and indeed are likely to be obliged) take a strict approach to ITT rules to ensure all tenderers are treated fairly. As electronic procurement procedures become increasingly common in the public and private sectors, bidders should familiarise themselves with the technology used by the customer in good time before any deadline. As Leadbitter shows, even the most minor last minute glitch can easily become a potentially very costly issue for the business.
