A reminder to bidders to fully check their tenders

A recent decision provides a stark reminder to those submitting tenders of the need to thoroughly check a tender before it is submitted.

25 November 2016

The case of Dem-Master Demolition Limited v Renfrewshire Council [2016] CSOH 150 serves as a reminder to bidders of the very limited circumstances in which the Courts will interfere with a contracting authority’s refusal to allow a bidder to submit missing information after the tender deadline.

Renfrewshire Council, as lead authority for Scottish Exel, invited tenders for participation in a framework agreement to provide demolition services to Scottish public authorities. The services were to be provided in three lots. Dem-Master submitted an electronic tender covering all three Lots on the deadline date of 14 April 2016. On 12 May 2016 the Council advised Dem-Master that it had failed to submit a commercial offer for any Lot stating that in respect of Lots 1 and 2 it had failed to provide necessary financial information and, in respect of Lot 3, included a blank template.

Later that day Dem-Master submitted the missing percentages for Lots 1 and 2 and populated the template for Lot 3. On 16 May 2016 the Council informed Dem-Master that it’s tender for none of the Lots could be considered – on the basis that the tender documents specified that a tender would not be considered without this information. 

Dem-Master brought this action to set aside that decision and to obtain an interim order suspending the award of the framework. Submissions were made by Dem-Master that exclusion from the framework for the coming two to four years would likely lead to financial difficulties and could result in it making redundancies.

Lord Tyne held the Council’s refusal was not disproportionate. The judgment points to the unequivocal warnings that had been provided; the fact that submission of this information would have, in effect, allowed the submission of a new bid; and the fact that there was no fault on the part of the Council.  A distinction was drawn between a patent ambiguity, which should be remediable, and a patent failure to comply with the instructions. Several parallels with the similar English decision of R (All About Rights Law Practice) v The Lord Chancellor [2013] EWCH 3461 (Admin) were drawn. 

Lord Tyne also considered the balance to be struck between the principle of proportionality and the principle of equal treatment. Allowing late submission of the omitted information could breach the principle of equal treatment. Following Ministeriet for Forskning, Innovation og Videregaende Uddannelser v Manova A/S [2014] PTSR 254 (Case C-336/12) it was noted that: firstly, the documents provided could not have been proven to pre-date the deadline and; secondly, the tender information expressly stated that the tender would be rejected if the omitted documents were not provided.

What does this mean for those taking part in procurements?
This decision should act as a stark reminder to those submitting tenders of the need to thoroughly check a tender before it is submitted. The courts are unlikely to be sympathetic where mistakes are made – especially where allowing a party to submit information after the tender deadline could put other bidders at a competitive disadvantage. 

For procuring authorities, this case should act as a reminder of the importance that the Courts place on the equal treatment of bidders. Where an omission is evident, contracting authorities should carefully consider whether allowing a late addition would effectively amount to allowing submission of a new bid, thus disadvantaging other bidders. There are strong policy reasons why deadlines should be strict in order to uphold the principles of fairness and equal treatment of bidders.