Mistakes in tender documents

8 July, 2011

The High Court has dismissed an application by an unsuccessful tenderer for review of a decision by a contracting authority not to allow the tenderer to correct a genuine mistake in the tender documents submitted – R (Harrow Solicitors and Advocates) v The Legal Services Commission [2011] EWHC 1087 (Admin)

The tender, which had to be completed electronically, was an invitation by the Legal Services Commission (LSC) for publicly funded immigration work via a points based system. The tenderer, Harrow Solicitors and Advocates, mistakenly answered “no” to a question about its ability to offer a drop in service, when it did offer such a service. Had it answered the question correctly then it would have received the minimum points required to be awarded a contract for the work.

After learning from the LSC that it had been unsuccessful in the tender, Harrow Solicitors appealed directly to the LSC arguing that it should be permitted to correct its mistake. The LSC rejected this appeal on the basis that it had been Harrow’s responsibility to ensure that the tender submitted was accurate. The LSC considered that it had a duty to treat all bidders fairly and equally and, as such, it was not permitted to allow Harrow to amend its tender to correct its error. Harrow Solicitors sought judicial review of this decision. In considering this application the key issue for the High Court was whether the LSC was obliged to allow Harrow to amend its tender after submission to correct a genuine mistake.

Giving evidence, the managing partner of Harrow Solicitors told the court that without the work which it would have received if the tender had been successful, the firm would be faced with having to close its immigration department with the loss of seven jobs and annual revenue from publicly funded work worth £288,000 (about 28 per cent of its total earnings).

The High Court dismissed the application stating that there was no precedent to entitle a bidder to rectify their mistake when the tender is not ambiguous or deficient. This was despite the fact that the mistake was objectively verifiable (i.e. it could be demonstrated that Harrow Solicitors did in fact offer a drop in service). The High Court stated that allowing a bidder to amend a mistake after submitting a tender could lead to unfair treatment of other bidders.

The High Court went onto say that there can be a duty on the contracting authority to clarify an ambiguity in a tender bid but there is no duty to rectify a genuine mistake where there is no ambiguity. If there is no ambiguity then a contracting authority can consider the bid submitted as it appears.

This case demonstrates that it is vitally important for tenderers to ensure that all tender documents are completed accurately before submission. Even where a mistake is made that can be verified, the contracting authority is under no duty to reconsider such a bid. 

 

 

 

 

Reviewed in 2015