This article is an excerpt from Government Procurement, 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 ruled that a last-minute bid received by the Yukon government was non-compliant and not eligible for acceptance. Faced with conflicting case law, the government brought an application seeking a judicial interpretation of the closing time in order to determine whether to accept or reject the last-minute low bidder. As set out in the court judgment, the low bidder arrived at the government’s Procurement Support Centre at approximately 3:55 p.m. The bidder had not yet calculated its total bid price and, after arriving at the submission counter, proceeded to tally the line items in its bid. The bidder’s calculator malfunctioned and then crashed.
The government’s counter staff confirmed that they would calculate the total for the bidder as long as the line items were all completed properly. The bidder submitted the bid. It was stamped as timely at 3:59 p.m. The bidder then had second thoughts about the accuracy of the figures in the bid and asked for the envelope to be returned. It was. After opening the envelope and confirming the figures, the bid was resubmitted and time stamped as 4:00 p.m. The issue before the court was whether the 4:00 p.m. low bid was on time or late. After noting the inconsistency between the tender call terms that stated “before” the stated deadline of 4:00 p.m. and the wording on the online Tender Management System which stated “up to and including” 4:00 p.m., the court ultimately determined that the express terms in the tender call trumped the inconsistency in the online posting system:
11 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 also considered the issue of whether the original timely bid should have been considered fixed and irrevocable and therefore capable of acceptance. However, the court determined that the bidder’s last minute bid withdrawal was fatal to the compliance of the original timely bid:
16 The second issue to be addressed is whether the Sidhu bid, filed at 3:59 p.m. forms the Contract A and becomes irrevocable. That, perhaps, would have been the case if that was the end of the story. Unfortunately, Mr. Bicudo requested that the bid be returned, which is a clear breach of the Instruction to Bidders-A, which requires a written withdrawal letter in s. 1.5 before the tender will be returned, or the amendment procedure in s. 2.6 to 2.9, which was not followed. In any event, the sealed bid was returned to Mr. Bicudo, torn open, and he “darkened a zero on item number 1”.
17 While this may have been a perfectly innocent event, it is a clear breach of the Instruction to Bidders-A and calls into question both the fairness and integrity of the bidding process. While Mr. Bicudo may have relied on the Yukon Government staff, it was he who interfered with the bidding process. 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.
18 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 court therefore concluded that the bid was non-compliant and ineligible for acceptance. As this case illustrates, the bid submission deadline is an inherently high-risk point in the tendering process. Purchasing institutions should therefore standardize their bid submission practices and avoid inconsistencies in their stated rules in order to mitigate the risk of legal challenges from late bidders.
