This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its January 1999 decision in Bradscot (MCL) Ltd. v. Hamilton-Wentworth Catholic District School Board, the Ontario Court of Appeal dealt with a dispute over a last-minute low bid that was submitted 30 seconds after 1:00 p.m. The tender call defined the deadline as 1:00 p.m. The issue was whether this allowed a bid to be accepted at any time prior to 1:01 p.m., or whether a bid that was submitted even one second after 1:00 p.m. was late. As the Court of Appeal noted, a bidding process attracts strict procedural compliance standards:
… the tendering process is and must always be a carefully controlled process, since the opportunity for abuse or distortion is ever present. While that is not what happened in this case, the process must nonetheless be, and be seen to be fair to all bidders. For that reason, the process is often attacked for technical reasons and the law has accordingly applied strict rules for any alteration in the process by both bidder and owner.
The Court of Appeal found that there was no clear industry understanding that could resolve the ambiguity since “evidence on the application shows that the industry itself does not have a clear rule”. The Court of Appeal noted that the Ontario General Contractors’ Association “is of the view that a tender received 30 seconds after a tender deadline of 1:00 p.m. is late”, but that “the Hamilton Bid Depository, the Toronto Bid Depository and the architect who prepared the instructions to tenderers are all of the view that any tender received before the clock registers 1:01 is on time”. While the Court of Appeal declined to resolve the interpretive ambiguity, it ruled that in the specific situation the purchasing institution was within its rights to accept the low bid as being timely. As this case illustrates, the need for split-second precision in the administration of bid deadline rules requires similar standards of precision in defining bid deadlines, right down to the last second.
