Cases - J B Leadbitter & Co Ltd v Devon County Council

Record details

Name

J B Leadbitter & Co Ltd v Devon County Council

Date

[2009]; (2009)

Citation

EWHC 930 (Ch) 124 Con LR 135; CILL 2713

Keywords

Tender submissions - circumstances outside of party's control - late submission

Summary

The rules for the tender submission clearly stated that only complete tenders would qualify for consideration. The invitation set out fixed and firm deadline for submission and expressly stated that all main elements of the tender, including case studies, had to be submitted electronically to a secure portal by a single upload.

Before the deadline one of the tenderers had suffered a power failure out of its control so the local authority extended the deadline. Another tenderer was advised by the local authority to supply a back up hard copy of its completed tender because it was unsure whether the case studies had uploaded.

The applicant tenderer uploaded and submitted its tender but forgot to attach case studies. It tried to upload them but was unable to do so. It phoned a help desk to explain and emailed the case studies but only after the deadline had passed.

The Court approached the issue looking at whether rules had been drawn and applied in ways that were transparent and ensure equal and proportionate non-discriminatory treatment. The power failure had been out of that particular tenderer’s control. The other tenderer had in fact submitted a correct tender notwithstanding the hard copy. The applicant’s tender was incomplete by omission of the case studies. This omission meant that the process was not complied with because there had not been a single upload.

Even if there was discretion to accept late submission of a tender, there was no requirement to do so, especially where it resulted from the tenderers’ fault. Proportionality would only apply where the late submission was due to the contracting authority’s fault.