Public procurement: no mercy for last-minute bidders

Many bid teams will be familiar with the last-minute rush which can sometimes ensue before a big submission deadline. It is not uncommon in a complex procurement for the Invitation to Tender to set out a myriad of documents – organograms, policies, plans, Gannt charts etc – which need to be uploaded to an e-tendering Portal, along with a bidder’s core response to the technical/quality questions and pricing. What happens if the technology fails you at a vital moment

The ITT will usually reserve to the contracting authority the right to exclude from the competition bids which are not submitted by the deadline, or bids which do not meet certain mandatory criteria. The consequences of non-compliance are typically set out in very clear terms, to avoid any misunderstanding on the part of bidders. Despite this, contracting authorities do retain a discretion to waive bidder non-compliance, even where the ITT is clear that this will result in the exclusion of a bid, but they should only exercise that discretion in a manner which is proportionate, transparent and non-discriminatory.

In a recent case, the High Court showed no mercy to an unfortunate bidder whose bid could not be submitted on time as a result of technical problems. The tender was carried out by NHS England using a well-known e-tendering Portal. Bidders were required to submit a number of different mandatory attachments along with their response, and each one had to be uploaded into a specific Portal location. The Portal did not allow a bid to be submitted until all of the mandatory attachments had been uploaded.

The bidder, Inhealth Intelligence Limited (IIL), tried to submit its bid via the Portal approximately 20 minutes before the deadline. An error message was received, asking IIL to remove and re-upload one of the attachments. IIL did so, but then received another error message relating to a different document, which it transpired had been mistakenly uploaded into the wrong place on the Portal. ILL tried to remove and re-upload the problem documents several times, but was unable to resolve the issue before the deadline expired, and its bid could not therefore be submitted.

IIL appealed to NHS England to permit the late submission of its bid, providing screenshots as evidence of the technical problems it had experienced, but NHS England refused and IIL began court proceedings.

Whilst the court had some sympathy for IIL, it found that there was no technical problem or error with the Portal software. The issue had been caused by IIL uploading a document to the wrong location, and the reason IIL had been unable to resolve it was not because the Portal error messages were unclear, but because the person responsible for the upload was in a panic due to the impending deadline. Had there been even just another 20 minutes available, it was very likely that IIL would have been able to resolve the issue and submit its bid.

The court said that NHS England was entitled, in this case, not to exercise its discretion to waive IIL’s non-compliance. There was no fault with the Portal software and the non-compliance could not be attributed to NHS England in any way. Rather, it was an unfortunate consequence of ‘a series of minor human errors and having left the submission process to the last moment’.

This case should act as an important warning to bid teams, who should:

1. Check the requirements in the ITT for documents carefully, and ensure that your attachments comply with all rules as to format, size and naming conventions.
2. Take time to familiarise yourself with the e-tendering software and how it works.
3. Leave plenty of time for the final submission of your bid, especially if it is a complex one with multiple attachments.

If you need further guidance in respect of the above, please do not hesitate to contact our public procurement lawyers and they will be happy to help.