EWHC 930 (Ch)
Procurement - rejection of an incomplete tender
Leadbitter claimed that its tender had been wrongly excluded from a procurement process being undertaken by Devon in relation to a four year framework agreement. The invitation to tender (“ITT”) required tenders to be supplied electronically to a secure portal by noon on 16 January 2009. Because of a power failure that day, which prevented one tenderer from submitting its tender on-time, Devon extended the deadline by three hours. An integral part of each tender was the need to include case studies. Leadbitter took advantage of the additional time to make a final check and sent in its bid at 12.05pm. At 4.45pm, Leadbitter realised that in error the case studies had not been included. Leadbitter immediately attempted to submit them to the secure portal, but this was not possible. Leadbitter called Devon’s helpdesk shortly before the 3pm deadline and also spoke to a procurement officer again before that deadline. However, the case studies were not submitted in any form before the deadline. Devon rejected the tender as a complete tender, including the case studies, had not been submitted on-time.
Leadbitter alleged that in rejecting the tender, Devon was in breach of the European regulations and its obligation to treat tenders equally and in a non-discriminatory way. Leadbitter also said that as a general principle of community law, Devon owed an obligation to act proportionately in relation to its treatment of the tenders.
Mr Justice Richards reviewed the ITT process. This made clear that a fully compliant tender submission was to be made without qualification, and that the main elements of the tender must be uploaded to the relevant system and submitted by the stated deadline. It was stressed that a failure to comply with this instruction may mean that the tender will not be considered. Tenders had to be submitted electronically to the secure portal. The submission of the complete tender was a onceonly option. No other method of submission was allowed. The case studies were one of the main elements of the tender. However, should a material and genuine error be discovered in a submission during the evaluation period, then the tenderer would be given the opportunity of confirming their offer or of amending it to correct the error.
Leadbitter said that Devon had the power to waive strict compliance with the requirements of the ITT as to the time and method of submission of tenders. It did so, for example, in extending the original noon deadline. The refusal to do so as regards Leadbitter, amounted to unequal and discriminatory treatment. The Judge disagreed.
The deadline was extended for all tenderers and in fact Leadbitter took advantage of this. Leadbitter here were arguing for special treatment for itself only. Further, the Judge did not consider that Leadbitter could argue that its tender, as submitted before the deadline, contained an error , which could be corrected in accordance with the ITT. The tender was incomplete, because it did not include the case studies.
The Judge noted that a waiver of the ITT terms carries the very risks of unequal treatment, discrimination and a lack of transparency which a contracting authority is required to avoid. Further, the Judge accepted that, for reasons of security, Devon could not be required to accept the case studies by email before the deadline. The issue before the Judge was whether the principle of proportionality required Devon to permit Leadbitter to send its case studies in after the deadline. Leadbitter accepted that it would not generally be appropriate to accept a late tender. However, Leadbitter argued that there were special circumstances here. Leadbitter passed the initial pre-tender stage and was invited to submit a tender. Its bid was therefore assumed to be serious. Its tender excluding the case studies was uploaded and submitted before the deadline. Its case studies were finalised before the deadline. Leadbitter was not taking advantage of its error to submit a document revised after the deadline. It had tried to upload the missing cases before the deadline and contacted Devon before the deadline to seek a solution. The submission of the missing case studies would fill a gap, not change any part of the tender already submitted.
However, the Judge held that Devon was entitled to reject the Leadbitter tender. It relied on the simple preposition that aprocurement process requires a deadline for the submission of tenders and that a deadline is a deadline. The ITT could not have been clearer on the requirement for a single upload and submission before the deadline. There were clear statements of policy in Devon’s code of business conduct that late tenders were not considered. Whilst the deadline was extended for three hours to accommodate a particular tenderer, this extension was agreed before the expiry of the existing deadline. It was caused by an event outside the control of the tenderer in question and it applied to all tenderers. Fairness to all tenderers, as well as equal treatment and transparency, required that the key features of the ITT, including the deadline, should be observed. Whilst, there may be circumstances where proportionality will require the acceptance of the late submission of the whole or significant proportions of a tender, these will be rare and most obviously where this results from the fault on the part of the procuring authority.
Accordingly, Leadbitter’s claim was dismissed.