Public Procurement: Late bids due to extenuating circumstances (2/3)
This is the second post in a series that provides an overview of how late bid submissions are handled under Canadian Law. The first post gave an overview of what is considered late. This post will cover how to handle bids that are late due to extenuating circumstances.
Bids Caught in Traffic
In Re Complaint Filed by Corbel Management Corp. (25 May 2009), the CITT considered a challenge filed by Corbel whose bid was delayed due to a company representative being delayed in traffic. The bid was due at 2:00pm. At 12:30pm, one of its representatives was en route to the bid reception office with the bid. However, a “serious automobile accident created a gridlock and the representative was blocked from proceeding”. As a result, the bid arrived 10 minutes late.
The owner returned the bid unopened on the basis that the bid had been delivered late and Corbel objected.
Corbel argued that the bid was delayed due to a force majeure and should not be penalized. In finding for the owner, the CITT stated: “… the Tribunal does not consider that traffic resulting from an automobile accident can neither be anticipated nor controlled… Corbel could clearly have left earlier to deliver its proposal in order to guard against such occurrence.”
Bidders assume the risk of potential delays in the delivery of their bids, including traffic and similar delays, such as weather.
Electronic Bids Delayed by System Glitches
Late due to Computer Glitch
What if a bid is delayed due to a computer glitch through no fault of the bidder?
In the Ontario Court of Appeal decision Coco Paving (1990) Inc. v. Ontario (Transportation) 2009 ONCA 503, the owner set out a process for electronic bid submissions in the tendering documents. Bids were supposed to be received by the owner’s computer servers before the tender closing in order to qualify as a compliant bid. If a bidder experienced transmission problems it was instructed to contact the owner no later than 30 minutes before the submission deadline. By the time Coco Paving submitted its bid and experienced transmission problems, it had run out of time to contact the owner. Coco Paving’s bid arrived late, having been caught in cyberspace due to a computer glitch.
The Court of Appeal was unforgiving. It considered Coco Paving’s actions in submitting the bid and found that Coco Paving had not taken the appropriate steps to guard against this potential problem. Coco Paving was held responsible for the consequences of its failure to plan ahead in the submission of its bid.
Late due to Fax Transmission Problems
In the CITT decision Re Complaint Filed by Promaxis (1 January 2006), the CITT considered a late bid submission where bidders were invited to submit their bids by fax. Bids were to be received by 1400 Hrs EST. Promaxis commenced sending its bid by fax approximately 2-3 minutes before the bid receipt deadline. For reasons unknown, the bid transmission was stopped and Promaxis had to re-start the transmission approximately 3 minutes after closing. The CITT relied on the wording of the RFP which required that bids be submitted by 1400 Hrs to find that Promaxis’ bid had to be rejected regardless of the circumstances leading to the delay.
Bidders using electronic systems in the submission of their bids plan to submit their bids well in advance of the bid submission deadlines as they are expected to accept the risk of bids not arriving on time due to system glitches.
In my next post, I’ll explore the question of whether owners can reserve the right to accept late bids in the terms of their RFX.