Is late better than never?

As someone who delivers a reasonable amount of training on public procurement it has been my experience that the decision in BAM PPP v National Treasury Management Agency & Minister for Education and Skills [2015 No 176 JR] comes as a surprise to those at the coalface of public procurement. Many public procurers believe that the rejection of late tenders is one of the few certainties that the law provides – this is not the case, with the dust having somewhat settled on the decision, it seems like a good time to provide a refresher on the law in this area i.e. that a simple rejection of a late tender may not be proportionate in every situation.

In reaching its decision in BAM PPP v NTMA the court relied on an English case JB Leadbitter & Co Ltd v Devon County Council [2009]. In Leadbitter the claimant was one of 25 contractors invited to submit an expression of interest for a Framework Agreement under which construction projects were to be tendered by public bodies in the South West of England.

The invitation documents specified a fixed deadline for the submission of expressions of interest and required submissions to be uploaded electronically to a secure portal to prevent the risk of collusion and to preserve confidentiality. The invitation documents expressly stated that it was the Tenderer’s responsibility to ensure that all relevant documents were uploaded and that an incomplete set of documents would render any submission invalid. It was also stated that any submission submitted outside of the portal would not be considered.

Leadbitter made its submission well before the tender deadline but discovered close to expiry of the deadline that certain parts of its submission had been omitted from the upload. Leadbitter tried to upload the missing documents but the portal would not accept a second submission. The Claimant then sent the missing documents by email some 30 minutes or so after expiry of the tender deadline.  The Council refused to consider the late email and rejected and disqualified the Claimant’s submission as being incomplete.

The tender process was governed by the Public Contract Regulations 2006.

The key point made by the court in Leadbitter was that the principle of proportionality will exceptionally require the acceptance of the late submission of the whole or part of a tender submission (where, for example, it results from mistakes on the part of the procuring entity). Even if there is a discretion to accept late submissions, there is no requirement that procuring entities do so, and the circumstances in which such a discretion is exercised are likely to be very rare.

On the facts of the case the Council’s decision to reject Leadbitter’s tender was held to have been proportionate. The deadline, and the need for a single submission for reasons of security and ensuring the integrity of the tender process, had been clear from the ITT and were understood by Leadbitter. Although Leadbitter’s position was stronger than tenderers who were simply late, as it was accepted its tender had been completed prior to the deadline and that the failure to submit was an unintended technical error, the Council was not required to undertake an investigation of those facts at the time of its decision.

Proportionality may require a waiver of strict deadlines in cases where they are missed because of a fault by the procuring body, but in a case where the fault is the tenderer’s it is within the procurer’s margin of discretion to refuse to accept the tender.

In BAM PPP v NTMA the court held that NTMA had discretion to accept the late tender documents, both according to the terms of the ITN and as described in Leadbitter in ‘exceptional circumstances’ as a matter of law, even where there is no express or implied discretionary power given in the tender documents.

Some of the exceptional circumstances relied upon by the NTMA were;

• The fact that only 8 out of 280 documents were uploaded after the deadline;
• That the late documents were received by 18:13;
• Only one document contained information which NTMA did not already have available before the deadline;
• Eriugena contacted the authority within 15 minutes of the deadline to notify that the system had not accepted a number of documents;
• NTMA was satisfied that Eriugena did not modify the Tender documents after 17:00;
• That NTMA was satisfied that no unfair advantage was obtained as a result of the late upload.

NTMA communicated its decision to accept the late tender at length and set out the reasons that found favour with it in exercising that discretion according to the court. The court held that this was done with sufficient transparency.

It is this last point that is particularly important and one that is a key takeaway of any procurement training – understanding and applying the basic principles of equal treatment, transparency, proportionality, non-discrimination and mutual recognition should never be taken for granted.  Creating transparency around your procurement decisions is vital.

Be open in what you are proposing to do – this allows tenderers to consider the lawfulness or otherwise of your approach and object to it.  This will allow you to change course if on reflection you believe they are correct.

Pauric Marray is a Director at Quigg Golden

If you have comments or queries on this topic, contact Pauric.Marray@QuiggGolden.com