Why are Bid Submission Processes Strictly Enforced?
Submission of a complete bid on or before the bid submission deadline and in compliance with the bid submission requirements is not a mere formality. Timely submission of bids is sacrosanct - a fundamental and strict requirement of the competitive tendering process. As bidders have learned, a bid submitted - even mere seconds - after the closing deadline, or to the wrong person, the wrong address or using the wrong format or delivery method will be rejected.
A general principle of Canadian common law is that in instances where a compliant bid has been submitted and a Contract "A" is formed1, the resulting duty of fairness owed by a procuring entity to compliant bidders means that it can only accept compliant bids.
The submission of a complete bid by the bid submission deadline is usually a fundamental mandatory condition that must be strictly complied with for any bid to be considered compliant. Bids submitted after the submission deadline will generally be rejected by the procuring entity because to do otherwise would breach the duty of fairness owed to other bidders. Accepting a late bid from a bidder amounts to preferential treatment for that bidder – the bidder has, in fact, been provided additional time to prepare and submit their bid.
Bid submission deadlines also serve a practical purpose – providing certainty as to when the bid submission period ends and the bid evaluation period begins.
Can Procuring Entities Waive This Essential Element of the Process?
Procuring entities may reserve a right to accept late bids (usually in the form of a "privilege" or "reserved rights" clause); however, late bids are in essence non-compliant bids, and, in the Canadian common law context, these clauses are read restrictively by the courts when determining their scope and impact with respect to accepting non-compliant bids. Where there is no express clause to allow acceptance of non-compliant bids, there is an implied term that only compliant bids will be accepted.
As we note in all of our bulletins regarding privilege clauses, the exercise of the rights in these clauses is optional; the procuring entity is not required to exercise them.
If you are bidding on public sector procurements that are covered by trade agreements, these procurements are subject to inherent obligations for fair, open and transparent procurement processes. No Contract "A" need be found in order for the obligations to arise. Accordingly, public sector entities, even if they have reserved a right to waive bid non-compliance, will not typically waive mandatory bid submission deadlines.
So What Should Our Bid Team Do?
Step one is always the same - review the bid submission requirements closely to ensure that the obligations are clearly understood and, if not, seek clarification immediately. Some questions that the bid team should ask in their review:
Who does the bid goes to?
- Is there an identified individual (by name or by title) or bid
receiving group or unit?
Note that the procuring entity for bid enquiries may be different than for bid submissions.
- If bids are submitted through a bid platform, confirm whether you must first submit an "intention to bid" or other bidder identification form, or otherwise register as a bidder in order to have access to the bid platform (either to receive the bid solicitation or to submit a bid).
What is the correct format for the bid?
- Is the bid delivered in a particular program such as Word or Excel? Is there a page limit (either for the entire bid or for each section) or a file size limit? Does the procuring entity require you to structure your bid in a particular way or complete their forms without modification? Does the financial bid have to be submitted separately?
Where is the bid to be sent and how is it to be delivered?
- Beyond knowing who to send it to, where do you send your bid? What is the delivery method? Can you send by fax? email? If more than one option, which option is best for your team to manage?
- If bids are being submitted in printed format, what is the specific address for delivery? If by email, do you have the right email address? Is there a specific bidding platform that is being used? Do you have to be a registered user to submit bids?
When does it have to be delivered?
- What is the actual bid submission deadline? Is the bid required to be submitted "before" the bid submission deadline (e.g. before 2 pm) or "by" the bid submission deadline (e.g. no later than 2 pm)? What is the time zone of the bid submission deadline? If the bid solicitation provides both a day (e.g. Tuesday) and a date (e.g. June 6th), are they aligned?
- If transmitting electronically, begin your bid submissions well ahead of the bid submission deadline to account for delays such as transmission interruptions, delays in the deliveries or clerical errors. Bids are not considered received when transmission begins, but only when transmission ends. As such, incomplete or partial submissions caused by interruptions in the transmission will be considered late even if you started transmission before the deadline.
- Electronic tendering systems often allow bids to be submitted before the bid deadline - either in full or in part - and bids may be modified up to the bid submission deadline. If bids are submitted in multiple files, consider submitting completed portions when ready, as opposed to waiting until the full bid package is ready for submission. This approach will also help to reduce the volume of the material that must be submitted at one time and reduce the risk of intervening transmission errors.
- Have a back-up confirmation process in place – don't leave one individual with the burden of ensuring everything is submitted as required, particularly in large or complex procurements.
- Maintain a tracking process for your submission that will generate not only verification of delivery but also the necessary evidence if a bid submission is delayed (either as required by the tender itself or otherwise). For example, obtaining proof of mailing and/or delivery, bills of lading, electronic time stamps and proof of delivery or delivery failure.
Bidders always remain responsible for ensuring they clearly understand the tender requirements – including those regarding bid submissions.
A complete bid means exactly that – a full bid is submitted as required and on time. Portions of your bid that are not received by the bid submission deadline are deemed not to be delivered, do not form part of the bid and will not be evaluated (and can result in rejection of the entire bid).
Procuring entities are not responsible for and assume no obligation to notify bidders if a bid is not delivered as required. In fact, most procuring entities will expressly exclude any responsibility or liability for lost, misdirected or delayed bid submissions.
Bidding is, by nature, chaotic. Eliminating as much of the possibility for error by clearly understanding the mechanics of bid submission well in advance of the bid submission deadline is key to chaos reduction.
1. See our recent bulletin explaining Contract A, Procurement 101: How Not To Turn Your Next Procurement In To New Case Law
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.