It pays to read the small print and give yourself plenty of time when submitting tenders.

A recent law case has highlighted the need for suppliers to read the tender documentation thoroughly and adjust their plans to give themselves plenty of time to submit on electronic tender portals.

𝗡𝗲𝘄 𝗽𝗿𝗼𝗰𝘂𝗿𝗲𝗺𝗲𝗻𝘁 𝗹𝗮𝘄 𝗰𝗮𝘀𝗲 – 𝗲𝘅𝗰𝗹𝘂𝘀𝗶𝗼𝗻 𝗼𝗳 𝗮 𝗹𝗮𝘁𝗲 𝘁𝗲𝗻𝗱𝗲𝗿

𝗜𝗻𝗛𝗲𝗮𝗹𝘁𝗵 𝗜𝗻𝘁𝗲𝗹𝗹𝗶𝗴𝗲𝗻𝗰𝗲 𝗟𝗶𝗺𝗶𝘁𝗲𝗱 𝘃 𝗡𝗛𝗦 𝗘𝗻𝗴𝗹𝗮𝗻𝗱 [𝟮𝟬𝟮𝟯] 𝗘𝗪𝗛𝗖 𝟯𝟱𝟮 (𝗧𝗖𝗖)

This recent judgment involved the NHS successfully defending another procurement law challenge. A bidder failed to submit their bid on time and was, compliantly the court has found, excluded from taking any further part in the process. The case concerned NHS England’s procurement of contracts, divided into 4 lots, for the provision of Child Health Information Services. The ITT stated, that: “The Contracting Authorities will not consider any tender response received after the stated deadline, and failure to submit a response by the deadline will result in the exclusion of the bidder from participating any further in this procurement.” and that “Note: The e-tendering portal In-tend does not accept files with the same name.”

The claimant, InHealth Intelligence Limited, had attempted to submit their bid at 11.49am ahead of the deadline of noon that day. They encountered a series of error messages on the portal, attributable to the presence of a file of the same name having already been uploaded. The issue was not resolved by midday and the claimant’s tender was not submitted on time. 

An investigation followed between the authority and portal provider, which provided no evidence of fault at their end, the claimant's bid was excluded for non-compliance. The claimant challenged the design of the portal, which it said was defective, the transparency of the ‘error’ message, and the lawfulness of the decision. The Court found the error message was "perfectly clear", and the decision to exclude their tender was not irrational, manifestly erroneous or otherwise in breach of the Regulations.