Tenderers have no automatic right to submit missing information after a tender deadline

The case of Dem-Master Demolition Ltd v Renfrewshire Council [2016] ScotCS CSOH_150 confirmed that contracting authorities have no legal obligation to allow tenderers an unfettered ability to submit missing information after a tender deadline has passed.

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In this case Renfrewshire Council, acting as Lead Authority for the Scotland Excel central purchasing body for Scotland’s 32 local authorities, invited tenders for participation in a framework to provide demolition services to Scottish public sector bodies, divided into three lots.

Dem-Master responded to the tender via the Public Contracts Scotland electronic procurement portal in respect of the three lots on the deadline date of 14th April 2016. On 12th May 2016, the Council informed Dem-Master that it had failed to provide a valid commercial offer for any Lot as it had failed to provide the required financial information for overheads and profit under Lots 1 and 2 and, with regard to Lot 3, had submitted a entirely blank template.

Later the same day, Dem-Master supplied the missing percentage figures for Lots 1 and 2 and submitted a completed template for Lot 3.  Four days later, on 16 May 2016, the Council informed Dem-Master that none of its submission could be considered, as the procurement documentation had clearly stated that tenders which omitted the financial information would be rejected.

In response, Dem-Master launched legal proceedings in Scotland’s top civil court, the Court of Session, in which it argued that as its omissions were obvious and easily corrected and causing only minimal delay to the procurement.  Submissions were also made that exclusion from the framework for a period of two to four years would lead to the company suffering financial difficulties, and could result in it making redundancies.

The Court found for the Council holding that there was no duty on the Council to give the contractor a chance to correct the errors made after the tender deadline.  Lord Tyne presiding pointed to the clear and unequivocal warnings that failure to provide the information would lead to disqualification; that submission of the missing information after the tender deadline had passed would have, in effect, allowed the submission of a new bid; and, that no fault could be ascribed to the Council.  The Court also observed that the Dem-Master had left itself no margin of error and submitted its tender on the deadline day itself.

Following the principles established by the European Court of Justice in Ministeriet for Forskning, Innovation og VideregĂ¥ende Uddannelser v Manova A/S [2014] PTSR 254 (Case C-336/12), it was noted that the documents subsequently provided by Dem-Master could not have been proven to pre-date the deadline and, secondly, that the procurement documentation expressly stated that any tender would be rejected if the omitted documents were not provided.

Allowing late submission of the information could, therefore, breach the European Treaty principle of equal treatment in respect of the other bidders who had responded to the framework in full compliance with the tender instructions.

The case affords a useful illustration of the potential for conflict between the principle of proportionality on the one hand and the principle of equal treatment on the other.  The Court was very clear that it would only allow the submission of missing information after tender submission deadlines in the most exceptional cases, and these exceptional circumstances did not include mistakes made by the tenderer, however simple and easily remedied.

For contracting authorities, where an omission in a tender submission is evident, they should very carefully consider whether allowing a bidder to submit missing information after the tender deadline could put others bidders at a competitive disadvantage, thereby breaching the principles of fairness and equal treatment of bidders.