In this case, the defendant local authority published a contract notice in the Official Journal of the European Union. The information released about the work being put out to tender did not include certain information about the restructure of staffing and the necessity of redundancies. The claimant received an Invitation To Tender (ITT). The claimant made an application which included a note containing further questions about the work for which it was bidding. In March 2012, the defendant informed the claimant that the claimant had not been successful and explained that the claimant’s tender had failed because it had included a qualification by way of the note. The claimant commenced proceedings, seeking to challenge the decision. The defendant applied for summary judgment to strike out the claim.
The claimant argued that the information provided during the tendering process had been incomplete and poorly presented, which made it very difficult to estimate payroll, redundancy and pension costs accurately. It alleged, amongst other things, that the local authority had breached its duty of transparency under the Public Contracts Regulations 2006, as amended. The issues to be considered were: (i) whether all or any of the claimant’s allegations of breach against the local authority were barred by the 30 day provision in Regulation 47D; (ii) if so, whether the claimant would be entitled to an extension of time to overcome such a bar; (iii) whether the note qualified or caveated the tender or otherwise showed non-compliance with the ITT; (iv) if so, whether the local authority should have sought clarification from the claimant before rejecting its tender and provisionally accepting another tender; and (v) whether there was an implied contract.
The claim was dismissed. It was held that: (1) The claimant had known that the information it had supplied was inadequate and incomplete and that it would have difficulty in tendering without it. Therefore, it had knowledge of the basic facts which indicated an infringement of the Public Contracts Regulations 2006 with regard to the basic inadequacy or incompleteness of the information provided no later than the date on which it submitted its tender. The allegations relating to complaints about inadequate information would be time-barred. (2) A good reason for granting an extension of the time would usually be something that was beyond the control of the claimant. For example, it could include significant illness or detention of relevant members of the tendering team. On the evidence, there was no good reason for granting the claimant an extension of time. (3) It was necessary to construe the note as an actual or prospective contractual document, on the basis that, if the claimant’s tender had been accepted, the note would have been incorporated in the subsequent contract. The wording of the note made it clear that the claimant had intended to enter into further discussions on redundancy costs and who should pay for them if redundancies were to occur. Alternatively, the note was a caveat, as there would be nothing to discuss if the financial and other risks associated with subsequent or consequent redundancies were to remain entirely and exclusively with the tenderer. Therefore, the note was a caveat or at the very least a qualification. (4) The ITT had made it clear that there were to be no qualifications or caveats to tenders but the claimant had sought to introduce one. There was no expressed entitlement within the ITT for the local authority to go back to tenderers for clarification on the pricing schedule. There was no implied obligation or entitlement on the local authority to seek clarification as to whether a tenderer would withdraw a qualification or caveat to the prices quoted. The local authority had not been required to seek clarification from the claimant before rejecting its tender. (5) On the proper construction of the ITT, there would be no room for any implication of other terms beyond the obligation to abide by the statutory obligations. The implied terms on which the claimant sought to rely could not and did not exist. The claim would be struck out.