Combined authority concedes tender portal case

Another day another procurement challenge related to the use of on-line electronic procurement portals!  In this article Michael Winder in our Procurement team looks at the recent case of Developing Assets (UK) Limited (t/a Helioperations) v West Yorkshire Combined Authority.

The Claimant submitted a tender as part of a public procurement process being run by the Combined Authority.  The Claimant had fully uploaded its final tender submission into the portal being used by the Combined Authority for the procurement. This uploading occurred before the submission deadline required by the tender documents had expired.  Unfortunately, the Claimant did not manage to press a ‘Submit a Response’ button before the portal automatically locked itself and prevented any further use. 

When the Claimant raised the issue with the Combined Authority, the Combined Authority said it would not consider the Claimant’s tender submission on the basis that its own competition rules provided it with no power to evaluate a “late” bid in these circumstances.

The Claimant challenged this decision on the grounds that:

• The Combined Authority had misdirected itself in respect of its powers under the rules of the tender competition; and
• The Combined Authority had failed to have regard to its general procedural power to evaluate late bids conferred under the law including under the principle of proportionality.

All contracting authorities when undertaking a procurement process governed by the Public Contracts Regulations 2015 will be familiar with the overriding principles of equal treatment, transparency and non-discrimination and proportionality.

Following the first day of oral arguments at an expedited to trial, the Claimant indicated that it would apply for summary judgment. At this point, following a short adjournment, the Combined Authority conceded the proceedings and agreed that its decision to exclude the Claimant must be set aside.  It also agreed to pay the Claimant’s costs.

This is another example of issues arising around the use of electronic tender portals and deadlines.  One key take away from this case must remain that the earlier a tender submission can be uploaded the better. Leaving it to the last minute just raises the possibility of issues arising, which may in turn lead to legal challenges (which may or may not be successful).

A second key take away is that this case is a useful reminder that while a contracting authority may set out its requirements in its invitation to tender and other procurement documents, it remains subject to the overriding principles of procurement.

If you require advice in relation to a portal submission issue (whether you are in the private sector or a contracting authority) or want any other advice on public procurement matters, get in touch with me at michael.winder@brabners.com or another member of our procurement team.