Second chances for clerical errors?

Tuesday June 7th, 2011

By Ruth McNaught, Solicitor, Harper Macleod LLP

Following on from our recent post titled Electronic Tendering Mishaps, the Legal Services Commission has once again succeeded at the High Court in an application by an unsuccessful tendering law firm for review of its decision not to allow the tenderer to correct a genuine mistake in its bid (R (Harrow Solicitors and Advocates) v The Legal Services Commission).

The LSC invited law firms to bid for a contract to undertake publicly funded immigration work. The tender submission period was eight weeks. The day immediately prior to the deadline, Harrow Solicitors and Advocates (“Harrow”) submitted its bid, but in doing so erroneously answered “no” to whether the firm offered a weekly drop-in session. The LSC scoring criteria was based on the answers to the questionnaire. Harrow would have scored the necessary points to have been awarded a contract if it had answered “yes” to the question. However, as it was, Harrow’s bid fell short by two points.

On notification of the outcome, and realising its error, Harrow appealed the decision. The LSC rejected the appeal on the basis that the tender documentation clearly set out that the burden lay with the tenderer to ensure that their bid was accurate and that the appeal was an attempt on Harrow’s part to amend its bid after the deadline. Harrow submitted that the LSC’s decision was unreasonable and disproportionate as there was a genuine clerical error which could be easily ascertained. Furthermore, Harrow argued that the decision would have serious consequences as it would have to close its immigration department and indeed there was a risk of the firm closing altogether.

In considering whether the LSC’s decision was unreasonable and disproportionate, the High Court concluded that the key factor giving rise to a duty on a contracting authority to seek clarification of a tender is where the tender, as it stands, cannot be properly considered because it is ambiguous, incomplete or contains an obvious clerical error rendering that part of the bid suspect. In the case of Harrow’s bid, there was no such ambiguity or deficiency on the face of it – the error was not obvious to the LSC. The LSC was, therefore, entitled to consider the tender in the usual way, maintaining firm rules for the tendering process which were applicable to all bidders. Accordingly, the High Court did not consider that the LSC had acted unreasonably or disproportionately in its evaluation of Harrow’s tender submission.

Consideration was also given to the principle of equality of treatment: there was a need to treat all tenderers equally in terms of submitting an accurate and compliant tender by the deadline. The strict requirements for the tender process were made known in advance to all tenderers, including Harrow. A notable factor in this case (and in the LSC cases we blogged about a few weeks ago) was that Harrow had eight weeks to produce and perfect its tender but did not submit its bid until the last available day. Recent case law suggests that aggrieved bidders are less likely to be treated sympathetically by the courts in cases where they submit tender responses dangerously close to the deadline for submission. In this case, the High Court held that allowing Harrow to correct their error would have breached the principles of equal treatment and non-discrimination. Harrow’s application to the High Court was therefore rejected.

Ruth McNaught

Ruth is a solicitor at Harper Macleod LLP and can be contacted on: ruth.mcnaught@harpermacleod.co.uk

 

 

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