This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its March 2000 decision in Star Telecommunications Company Limited v. Trinidad, the Trinidad and Tobago High Court of Justice upheld the government’s decision to reject the plaintiff’s late tender. The case involved a Request for Proposals (RFP) for licences to provide a cellular telecommunications system for Trinidad and Tobago. The RFP contained the following rule regarding the submission of proposals:
Proposals should be submitted in Triplicate, letter size (A4) paper with all supporting documentation on or before Friday May 28th, 1999 4:00 p.m. hand delivered and addressed to the Director, Telecommunications Division, Ministry of Information, Communications, Training and Distance Learning. 17 A Abercromby Street, Port of Spain.
Star Telecommunications Company Limited submitted its proposal on the above-noted date. However, according to the government, the proposal was submitted after the stated proposal submission deadline, so it was rejected. Star Telecommunications took issue with its rejection, maintaining that it had in fact submitted its tender on time.
After considering the testimony of the parties, the Court determined that Star Telecommunications was in fact late in submitting its proposal. The following excerpts from the decision, which include highlighted text as contained in the actual judgment, underscore the relevant facts relied on by the Court in reaching its conclusion:
Ramnauth said that at about 3.56 p.m. he arrived at the premises where the Director’s office was located. In cross examination, he explained that by this he meant that he arrived at the building at 3.56 p.m. He had been driven there it seems, leaving 34 Sackville Street at 3.45 p.m. for Abercromby Street, but had run into traffic. Having arrived at the building at 3.56 p.m., it seems that Ramnauth ‘entered the ground floor and inquired of a man who appeared to be a security officer as to the exact location of the Director’s office and he directed me to the second floor of the building’ (paragraph 8, Ramnauth affidavit). He then ran up four flight of stairs to the second floor and entered an office, which upon enquiry turned out to be the Director’s office.
When Ramnauth entered the Director’s office, he deposed that he inquired of a ‘young lady behind the counter’ whether it was the Director’s office [our site visit did not reveal any ‘counter’ and in fact Ramnauth at this visit placed the lady he spoke with, at a desk in the open area opposite the parapet wall and the Director’s office (see sketch plan).
In Ramnauth’s words, what transpired next was as follows (paragraph 8, Ramnauth affidavit):
I explained to her the purpose of my visit and said I had three (3) copies of proposals for submission in response to the RFP. The young lady showed me to a conference room where she said I should take a seat and await the Director, which I did. The time then, according to my watch…was about three minutes to 4.00 p.m. [Emphasis mine].
The effect of this evidence, is that from the time Ramnauth arrived at the building to the time he was seated in the conference room, one (1) minute had elapsed. I find this highly improbable, given the two conversations he had and the distance he would have had to have covered from the road up four (4) flights of stairs to the Directors office.
After noting other inconsistencies in the witness’ testimony, the Court concluded that the proposal had in fact been submitted after the prescribed deadline and it dismissed the claim.
This case shows the level of judicial scrutiny that can be brought to bear when a tendering process is legally challenged. To better ensure the defensibility of your tender screening procedures, take great care to craft clear threshold requirements, to enforce those requirements consistently and to document the enforcement of those requirements.
