Contracting authorities are obliged to observe the principles of equal treatment, transparency and proportionality when undertaking a procurement process. What happens when a tenderer seeks to rectify an omission after the deadline? If a contracting authority refuses to evaluate, is that acceptable?
On 14 April 2016, Dem-Master Demolition Limited (the "Tenderer") submitted its tender for the provision of demolition services to Scottish public authorities. On 12 May 2016, Renfrewshire Council (as Lead Authority for Scotland Excel) (the "Contracting Authority") informed the Tenderer that it had failed to provide percentage figures for overheads and profits and had submitted a blank template. The Tenderer immediately responded providing all the missing information and asked the Contracting Authority to confirm that its tender would now be evaluated. The Contracting Authority advised the Tenderer that its tender could not be considered further.
The Tenderer argued that the Contracting Authority acted disproportionately, stating that the omissions were obvious, easily corrected and would have caused minimal disruption to the tender procedure.
The Contracting Authority argued that the Tenderer had failed to comply with the tender procedure. The requirement of strict compliance with the deadline and inclusion of the correct information in any submitted tenders were made abundantly clear from the outset and throughout the tender documentation. There was no duty for the Contracting Authority to excuse non-compliance nor was there a duty to allow corrections.
The Court of Session held that if the Contracting Authority had granted the Tenderer's request, there would have been a powerful case to be made by the successful tenderers that the Contracting Authority had breached the principle of equal treatment. Even if it was obvious that an error had been made by the Tenderer, there was no duty incumbent upon the Contracting Authority to afford the Tenderer an opportunity to correct its tender after the deadline for submission had passed. Lord Tyre stated that "a contracting authority which acts in a manner necessary to avoid breaching that principle cannot, in my view, be said to be acting disproportionately".
There are strong policy reasons for enforcing deadlines for the submission of tenders. This would include, most notably, fairness to other tenderers and the avoidance of the risk of an accusation of abuse of the tender procedure. In this case, there was a complete lack of information from the Tenderer rather than its tender being ambiguous.
A contracting authority may reserve the right to seek clarifications from tenderers. However, this discretion does not create a duty on contracting authorities to allow corrections where tenderers made clear omissions.