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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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