This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its September 2013 decision in Yukon (Department of Highways and Public Works) v. P.S. Sidhu Trucking, the Yukon Territory Supreme Court determined that a last-minute low bid was properly rejected as late by the government. The dispute dealt with a bidder who submitted an initial bid approximately five minutes before the deadline, but then requested that the bid be returned to confirm that there were no calculation errors in the pricing. The bid was re-submitted and stamped as having been received at 4:00 p.m. The issue turned on whether the bid was late as the tender call rules stated that bids had to be submitted “before” the 4:00 p.m. deadline, whereas the online tendering system stated “up to and including” 4:00 p.m. However, the Court ruled that the deadline contained within the solicitation document was the official deadline:
The first issue to determine is the precise closing time for the tender. In my view, the Instructions to Bidders-A is clear in s. 2.5, where it states: “tenders must be received before the specified time.” That time is clearly stated in the contract documents to be 4:00 p.m. To make it clear, s. 2.5 goes on to say, “Tenders received after this time will not be considered, regardless of the reason…”. This means that tenders must be received by 3:59 p.m., and tenders received after 3:59 p.m. will not be considered. The wording, “regardless of the reason”, in my view, is intended to refer to errors, misunderstandings, or confusion that occur, as it did here, where someone asked for a sealed, time-stamped bid to be returned, opens it, and writes something. I do not find the small print on the TMS notice of tender using the words, “up to and including 4:00 p.m.” to be part of the contract documents. The TMS is an online document for convenience of bidders that was explicitly not warranted, guaranteed, or represented to be complete or accurate. The notice of tender in the Whitehorse Star newspaper is not a part of the contract. The contract documents are set out in s. 1.1 of the Articles of Agreement.
The Court determined that by withdrawing its bid and then resubmitting it right at 4:00 p.m., the low bidder was late and the low bid was therefore non-compliant:
The result was that the Sidhu bid was filed and date stamped 4:00 p.m., which is clearly not before 4:00 p.m.
I declare that the Sidhu bid was not filed in time in accordance with the Instructions to Bidders-A which required a filing time before 4:00 p.m.
The low bidder appealed this decision, while also suing the government for lost profit damages for the improper rejection of its bid. In 2015 the Yukon Territory Court of Appeal ruled that the appeal of the initial judicial interpretation was moot since the bidder had since brought legal proceedings against the government. The Court of Appeal criticized the lower court’s decision to provide an interpretive declaration since it could result in “judicial embarrassment” if the trial court later ruled that the government was liable for rejecting the bid. While the issue of deadline interpretation may have been dealt with in the original ruling, the legal challenge could raise other factual issues that could change the ultimate result. The years of resulting litigation over the ambiguous deadline serves as a useful reminder for project teams to ensure clarity and consistency in drafting their tendering process rules and in consistently communicating those rules through the official bid documents and other communication channels.
