One of the key elements in most tender and RFP processes, is a requirement for tenders or proposals to be submitted by a certain time. In many cases, this is a mandatory requirement, so that bids which are received after the stated time are invalid, with little or no discretion for the owner to accept the late bids. Not surprisingly, this has given rise to a variety of cases determining exactly what the relevant time is.

The first of these is Smith Bros. and Wilson (BC) Ltd. v. BC Hydro and Power Authority. In this case the relevant time was described in two separate places in the documents as "until 11:00 a.m." and "not later than 11:00 a.m.". The judge held that these words did not allow tenders to be delivered until 11:01 a.m. The closing time was exactly 11:00 a.m. In contrast, the Ontario Court of Appeal held in Bradscott (MCL) Ltd. v. Hamilton-Wentworth Catholic District School Board that a closing time of "at 1:00 p.m." allowed tenders to be delivered at any time up until 1:01 p.m.

The BC Hydro case was interesting also in that the judge held that if the clock at the closing location was inaccurate, evidence could be given as to the accurate time at which the tender was delivered.

Two practical points need to be taken from these cases. First, is that the tender documents should state that the clock at closing location takes priority over any other time. This allows for certainty at the time that tenders are delivered as to whether or not they are on time. The next is the need for absolute clarity as to the closing time. In some cases this has led to people drafting their tenders as being delivered at, for example, 11:00:00 a.m., taking beyond doubt the fact that no tender received even seconds after 11:00 a.m. would be accepted.

The case of Coco Paving (1990) Inc. v. Ontario, another Ontario Court of Appeal case, deals with a more recent case of electronic bidding. The tender in this case said that the bid must be "received" before the tender opening at 3:00 p.m. to be considered. The bid in question was received at the server at 3:28:05p.m. and was therefore rejected. The bidder claimed that the bid had been sent well before the closing time and that as some kind of computer error had delayed the receipt, in "fairness" its bid should be accepted. The court rejected this argument. The timing of bid submission is a fundamental part of the tendering process, and allowing a late bid to be accepted would be to breach the duty of fairness to the other bids which were submitted on time. Allowing a late bid, would erode the integrity of the bidding process.

Again, a key practice note here is the clarity of the bid condition, where it was clear that receipt of the bid on the owner's server was the key time. Where electronic bids are being considered, particular care needs to be taken with the bid conditions in order to ensure that bidders know what is required.

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