This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its March 2004 decision in Moores Air Express Services Limited v. The Postmaster General, the Supreme Court of Jamaica upheld the government’s rejection of a late bid that was submitted by a long-term incumbent. The case dealt with a tender call by the Jamaican Postmaster General for the provision of staff and mail transportation services. The legal challenge was launched over the rejection of the incumbent’s bid, which it had attempted to submit on behalf of a large group of mail contractors across Jamaica:
The invitations to tender and the tendered documents expressed that late tenders would be rejected. Moores Air Express Service Limited (Moores), who had provided such services for the Postal Services for a period exceeding fifty (50) years, had demonstrated their intention to submit bids in respect of the offer. Moores was also tendering on behalf of some thirty-five (35) mail contractors islandwide, whom they represented. Moores’ attempt to deposit these bid documents failed. They claimed they were prevented from so doing by the actions of an employee of the Postmaster General’s Department. The Postmaster claims that Moores was out of time, and that the box in which the tenders were to be deposited had been already sealed at the time Moores representative arrived there. This Moores has denied. It is this decision of the Postmaster General not to allow the Plaintiff to deposit their tenders that the Plaintiff seeks to impugn, by way of Judicial Review.
The bidder claimed it waited until the bid deadline to submit its bid due to concerns over the confidentiality of the bidding process:
Moores’ case is to the effect that they had intended to arrive at the Central Sorting Office at about 2:30 p.m., in order to ensure the integrity of the submitted bids. This decision to arrive as close to the deadline as possible was born out of the experience they had had with prior tendering process at the Postmaster General’s Department. Miss Moore testified that “the later they could put their bid in, the more comfortable we would be.” They had complained in 1998 about the confidentiality of the process.
The desire to submit its bid as close to the deadline as possible set the scene for the late bid drama. As is often the case in late bid disputes, the case turned on varying accounts of quickly unfolding events and, as the Supreme Court noted, the rejected bidder’s team provided conflicting evidence about those events:
The fact that they did not arrive as they had planned at 2:30 p.m. was a result of difficulties that they had encountered in the preparation of some of the bid documents for mail contractors whom they represented, and the unexpected level of traffic they had encountered on their way to the Central Sorting Office. Miss Andrea Moore, an attorney-at-law, representing the Plaintiff at the deposit of the bids, deponed that she had arrived at the Central Sorting Office “at approximately 2:53 p.m.” she was accompanied by Helen Richards and Courtney Whilby and said in cross-examination that the attempt to deposit the bids would have been made no later than 2:55 p.m. She said that Miss Chambers, the Head Postmaster, had her right hand placed over the aperture of the box, and there was no tape on the box.
Mr. Whilby who drove the vehicle in which Miss Moore travelled, testified that they had left the offices of the Plaintiffs at 2:30 p.m. This bit of evidence is in conflict with the evidence of Miss Moore and Miss Richards. They, on their evidence, left at 2:15 p.m. Mr. Whilby stated it took him fifteen (15) minutes to make the trip, however Miss Richards was of the view that it took them a little under thirty (30) minutes. Richards maintained that he arrived at Central Sorting Office at 2:53 p.m. On his evidence the journey would have taken twenty-three (23) minutes. If the evidence of Miss Moore and Miss Richards is correct that the time of their departure from the Plaintiff’s office was 2:15 p.m., then the journey would have actually taken some thirty-eight (38) minutes on their own evidence.
Richards, in her evidence said that, “We had planned to leave at two o’clock. We had planned to arrive there at 2:30 p.m.” Moore was in agreement with this proposed departure and arrival times. It is clear that the journey took a longer time than they had anticipated. In the evidence of Whilby, he had deponed that the tenders were presented no later than 2:55 p.m. In cross-examination he said that when he went to Central Sorting Office he checked his phone and it said 2:57 p.m. Both statements are palpably inconsistent. Although there is no general agreement on the time of departure or on the duration of the journey, the plaintiff’s witnesses are unanimous as to the time of arrival.
The Supreme Court then summarized the government’s side of the story:
The Postmaster General adduced the evidence of Percival Griffiths, a Director in the office of the Contractor-General, who was present to execute his office’s oversight capacity in the bid process and to specifically deal with the opening of the tenders. He said he observed that it was three o’clock and the tender box ought properly to be closed. He dispatched Mr. King … to deal with the closing. Griffiths has testified that he asked Miss Moore one question. Why are you late? To which she responded that there was a problem with the traffic among other problems.
Miss Chambers testified that when she went to the tender box, three o’clock had already passed; the box was fully closed with tape. The opening through which the tenders are deposited was taped over. Prior to the arrival of Miss Moore, Miss Chambers said a gentleman had come to the area, looked at his watch and left. Miss Moore arrived with several envelopes which were not sealed. The Court had the benefit of reading the affidavit of one Mr. McCatty who deponed that he entered the hall and observed the box taped and left with his bid. McCatty’s evidence was unchallenged.
Barry Davis said he was instructed to close the tender box at three o’clock. When he arrived at 2:56 p.m. he was satisfied that the time was correct. He checked the time with a security guard. At 3:03 p.m., he sealed the box. He observed a man came and he advised that the tender was closed. The man left without complaint. He observed a lady complaining that it was not yet 3 o’clock. By his watch the time was then 3:06 p.m.
After summarizing the competing version of events, the Supreme Court noted that government procurement decisions are subject to reversal where they are made on irrational or unreasonable grounds:
In reviewing the decision of the Postmaster General (PMG) to determine whether it may be deemed to be irrational or unreasonable, the Court is to investigate whether the PMG took into account matters that she ought not to have considered or disregarded matters that she should have taken into account. In either case the decision may be impugned. However, the decision having satisfied these primary considerations may yet be impugned if it can be assailed on the ground of perversity or irrationality. The test for such a course being; if no reasonable PMG acting on the circumstances presented before this PMG could come to a decision that the advertised time for the tendering of bids had passed and that she was justified in refusing the Plaintiff’s bid.
On the production of such evidence, the reviewing Court acting in its supervisory capacity will quash the decision. It takes evidence of a very high standard to satisfy this test. The applicant would be required to demonstrate by way of evidence that the decision of the PMG to use language of Lord Green is so “absurd that no sensible person could ever dream that it lay within the power of the authority”, see Associated Provincial Picture Houses Ltd. v Wednesbury Corp. (1947) 2 ALL. E.R.
However, the Supreme Court ultimately ruled in favour of the government, finding that the bid had been validly rejected as late and that there was no breach of the applicable tendering rules:
The Plaintiff did not specifically point to any relevant matter that was omitted from the PMG’s consideration. However, issue was taken that there was no provision made to have an official clock by which the closing of the tender would have been guided. It appears to me the issue of an objective assessment of the time was duly considered as demonstrated by the presence of the Contractor General’s agent. Additionally, the requesting of time from the security guard and consequent adjustments made to the time. The advertised guidelines published by the PMG’s department were in conformity with the guidelines issued by the National Contracts Committee as it pertains to the Deadline for submission of tenders.
As this case illustrates, the rejection of late bids can be a contentious decision that gives rise to legal disputes. Government bodies should therefore ensure that their bid submission procedures are clearly defined and administered with a high degree of precision in order to ensure that those decisions are defensible in the face of inevitable legal challenges.
