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The facts

The facts of this case relate to the dreaded 鈥�12 noon deadline鈥� for a tender submission. In July 2008, Devon council (鈥淒evon鈥�) published a notice in the Official Journal of the European Union inviting expressions of interest for a four-year framework agreement under which construction projects would be procured by local authorities in the South-west. The invitation to tender (鈥淚TT鈥�) was issued to 25 selected contractors, including the claimant, JB Leadbitter. The ITT fixed the deadline for the submission of the tenders at 12 noon on 16 January 2009 and required the submissions to be electronically uploaded to a secure portal. An integral part of each tender was the need to include case studies with the submission.

Owing to a power failure one tenderer was prevented from submitting its tender by 12 noon. Devon extended the deadline for all tenderers by 3 hours to 15:00 on the same day. JB Leadbitter was ready to submit its tender by the original deadline, however took advantage of the additional time and submitted its tender at 12:05. At 14:45, JB Leadbitter realised that, in error, the case studies had not been uploaded. When it attempted to correct the error by uploading the case studies, the secure portal prevented it from making any changes to the submitted tender. JB Leadbitter phoned the Devon helpdesk shortly before the 15:00 deadline and spoke to a procurement officer. The case studies were subsequently sent by email at 15:26; however, were not submitted in any form prior to the deadline.

Devon rejected JB Leadbitter's tender on the grounds that a complete tender, including the case studies, had not been submitted by the deadline as clearly stated in the ITT.

JB Leadbitter argued that in rejecting the tender, Devon was in breach of European regulations and its obligation to treat tenderers equally and in a non-discriminatory way. It said that Devon had the power to waive strict compliance with the requirements of the ITT, as it had done in extending the original noon deadline. JB Leadbitter also alleged that, as a general principle of European Community law, Devon owed it an obligation to act proportionately in relation to the tender and it failed to do so. JB Leadbitter sought an injunction requiring Devon to consider its tender, or alternatively, damages for the loss of the chance to be selected as a contractor under the framework agreement.

The issue

Did the principle of proportionality require Devon to permit JB Leadbitter to submit its case studies after the deadline?

The decision

Mr Justice David Richards held that Devon was entitled to reject JB Leadbitter's tender and was not acting disproportionately in doing so. He noted that 鈥渁 waiver of such terms [the ITT terms] carries the very risks of unequal treatment, discrimination and a lack of transparency which the contracting authority is required to avoid.鈥�

Devon relied on the simple proposition that a procurement 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. Furthermore, there were clear statements of policy in Devon's code of business conduct that late tenders were not considered. The deadline had been extended for three hours to accommodate a particular tenderer; however, it was caused by an event outside the control of the tenderer. The extension had been agreed prior to the expiry of the existing deadline and it applied to all tenderers.

The judge did note that there may be circumstances where the principle of proportionality will require the acceptance of a late tender submission - either the whole of the tender, or a significant portion of it. For example, if the late submission results from a fault on the part of the procuring authority, acceptance of the late submission will be required. Here, it had resulted from a fault on the part of the tenderer. However, while there is discretion to accept late submissions, there is no requirement to do so.

Mr Justice David Richards held that Devon's rejection of JB Leadbitter's tender was lawful and dismissed the action.

Commentary

The simple moral of this story is: don't leave the submission of a tender until the last minute - and check to ensure that you have all the necessary parts of the tender submission together, ready to be submitted in one package. This is an all too common situation for both contractors and consultants. Depending on the circumstances, a contracting authority will not be required to accept the late submission if the fault is as a result of the tenderer's actions. This case further emphasises that a 鈥渄eadline鈥� is a deadline and it means just that.