A simple mistake
We have all been there! The computer system has collapsed in the final hours of the bid or a document has not been uploaded in time on the portal. Or, as happened to us once, the numbers should have been in dollars and not sterling (saving almost 40% of the cost). When it is discovered after the deadline, the sales lead panics and the pragmatic Bid Manager picks up the phone to the client and explains the problem, pleading for understanding and some mercy.
When this has happened in the past, on many occasions the client’s procurement team have relented and allowed us to recover the situation. Not anymore!
In recent months, we have seen procurement teams taking an increasingly harder line when unforeseen problems have occurred. We have seen bids being refused which were only a few seconds late and the problem was the portal and not the bid teams. However, a landmark court case in Scotland last month, showed a court would only allow the submission of missing information after tender submission deadlines in the most exceptional cases. These exceptional circumstances would not include slip-ups made by the tenderer, however simple and easily rectified.
In this case the tenderer was bidding for a framework contract lot. It inadvertently omitted percentage figures for overheads and profits in two lots and submitted a blank financial template for the third. When the Council’s procurement team pointed this out, the tenderer realised its mistake and immediately provided the missing information which it had to hand. After several days, the procurement team told the tenderer its bid was not going to be considered.
Legal action taken
The tenderer immediately launched legal proceedings and argued that as its omissions were obvious and easily corrected, it should have been allowed to correct its mistakes.
The Court found that there was no duty on the Council to give a tenderer the opportunity to correct errors discovered after the tender deadline. The tender documents only allowed the procurement team to “clarify” information in a bid, but not to permit late submission of information which should have been supplied before the deadline.
The Court considered that the fundamental principle of equal treatment should take priority when handling tender errors, in accordance with PCR 2015. The Court also observed that the tenderer left itself no margin of error and only submitted its tender on the day of the deadline.
The lessons for us are clear:
• If you suspect a competitor is introducing new information into its bid after the deadline you should object immediately to the procurement team
• Upload a complete version of your bid (even if it is still in the final authorisation and tuning stages) on to a portal the day before the portal closes. You can always choose to update your bid later, but you will not be able to submit if you are late
• Find a detail obsessed individual who has had no part in compiling the bid to independently verify its compliance. Instruct them that they are only checking for adherence to the process and accidental omissions. Make sure you have time to respond to their findings before the deadline expires.
If you do find yourselves in a situation like this and want to get some quick advice on what your options may be, do give Sixfold a call on 01227 860375.
They would be delighted to give you some feedback and thoughts with no obligation on your part.