By Joanna Frost
4th Jul 2017
Quite often tender responses from bidders fail to include all of the information you requested of them. Sometimes bidders accidentally submit the wrong/out of date information or miss important details out. Do you exclude them from the tender process or do you allow them the opportunity to submit the information? By excluding them you could be faced with claims of not acting proportionality by the excluded bidder or run the risk of claims from other bidders of unequal treatment.
The Public Contract Regulations 2015 state the following with regards to bid clarification: “Where information or documentation to be submitted by bidders is or appears to be incomplete or erroneous, or where specific documents are missing, contracting authorities may request the bidders concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency."
However it’s not always easy to draw the distinction between clarification as outlined above and effectively giving the bidder a second chance. A case heard by the Scottish Courts (DEM Master Demolition Ltd v Renfrewshire Council) considered this very issue. The case involved a contract for demolition work where a bidder was excluded because it had omitted mandatory financial information and had also submitted a blank template. The bidder brought a claim arguing that as the omissions were obvious and easily corrected it should have been allowed to correct the mistakes so that the tender could be fully considered. The authority argued the requirement of strict compliance was plainly set out in their tender documents and that the bidder was not asking to correct an ambiguity as it had submitted no figures whatsoever and it was not obvious what it had intended to submit.
In this case the Court ruled that there was no duty on the authority to give a bidder the chance to correct its bid. The reservation of right in the authority’s tender documents to clarify, allowed the authority to resolve ambiguities in information that had been submitted but not to seek late submissions of information which should have been supplied but was not. Had they done so the Judge considered it was likely that the principal of equal treatment would have been breached.
What can we learn from this?
In this case the authority had put a statement in their tender documents about how it would treat a failure to provide responses to certain questions alongside reserving the right to clarify any information supplied by Bidders. It would be worth reviewing your standard tender documentation to see what information you put in this regard. This case certainly seemed to indicate that clear and unequivocal warnings of the consequences of not submitting information may help you defend against any arguments from aggrieved bidders of failing in your duty to act proportionality should they be excluded for this type of error. In this case the authority followed various requests for information in the tender documents, with the following statement “Please note that failure to provide a response to this question will result in your tender not being considered."
‘A Guide to Drafting Invitation to Tenders’ can be found on the Guidance section of FELP which includes example wording that might be useful. The guide also talks about including a ‘checklist for tenderers’ at the end of your invitation to tender to remind bidders of the information you require them to submit. This can help prevent these situations arising in the first place, which must be the desired outcome for all parties. It will help ensure you receive fully compliant and complete bids to reap the full benefits of competition and avoid an otherwise good tender being rejected on these grounds.