The defendant contracting authority conducted a public procurement exercise, consisting of four lots, for the award of contracts to provide child health information services. Tenderers could submit bid responses, via on online portal, for any or any combination of lots. The claimant, who intended to submit tender responses for all four lots, uploaded a document in the wrong place. The error was not corrected by the deadline for closure of the tendering process, and although it only related to one lot, the claimant was prevented from submitting the bid as a whole. The defendant subsequently informed the claimant that it had not submitted its bid by the deadline, and that by virtue of the requirements of the invitation to tender the bid was excluded. The claimant brought an action for breach of statutory duty, alleging that it should have been permitted it to submit those parts of its bid covering the error-free lots, and which it said constituted separate bids.
On the claim and the question whether there was a discretion, by virtue of the requirements of equality, transparency and proportionality in regulation 18 of the Public Contracts Regulations 2015, to waive non-compliance with a stated deadline in the invitation to tender—
Held, claim dismissed. It was important to consider the precise terms of the tender documents to determine whether the contracting authority had reserved to itself a wide discretion to admit late tenders or permit missing documents to be furnished after a deadline had expired or whether a bright line exclusionary rule had been adopted. However, even where there was a bright line exclusionary rule, in order to comply with regulation 18 of the 2015 Rules it was always necessary for a contracting authority to satisfy itself on the facts of a given case that strictly applying the stated rules was the appropriate course. There might be circumstances where proportionality would, exceptionally, require the acceptance of the late submission of the whole or significant portions or a tender, most obviously where it resulted from fault on the part of the contracting authority. In the present case there was no express discretion in the tender documents to extend the deadline after it had been missed by a tenderer. Although the claimant had entered responses for all four lots, it was clear from the invitation to tender that the responses were to be treated as forming a single bid. The claimant did not submit its bid prior to the deadline, something for which it was solely to blame. Accordingly, the defendant’s determination to apply the deadline strictly was well within its discretion (paras 21, 22, 26, 29–30, 34–35, 44, 45, 63, 64).
Deok Joo Rhee KC (instructed by Trowers & Hamlins LLP) for the claimant.
Rhodri Williams KC and Jonathan Lewis (instructed by Hempsons LLP) for the defendant.