Timing is everything in procurement – bidders beware

In this article Samantha Thompson and Michael Winder from the Procurement team review a recent case between Inhealth Intelligence Limited (Claimant) and NHS England (Defendant), where the Contracting Authority was not required to evaluate a late bid submission, due to correctable human error during the bidding process. 

Background

The Defendant had a procurement for the award of contracts divided into four lots for providing child health information services. The deadline to submit a tender was midday on 12 July 2022. The Claimant was a leading provider of such services and intended to submit a bid for the work in three of the four lots. All bids had to be uploaded onto an online portal.  

The Claimant stated that 20 minutes before the deadline, when its bid was ready to be submitted, it received several error messages when attempting to upload to the portal. The final message stated the file already existed on the portal but that the Claimant had to try again. The error messages occurred in relation to a single mandatory bid document, while the other documents were already on the portal. However, the portal was set up in a way that being unable to submit the single document meant that the Claimant could not click submit in respect of any of the lots. As such, the Claimant was unsuccessful in completing the submission and the deadline of 12 noon passed.

The Claimant argued that it was these error messages that caused it to miss the deadline.

Judgment

The High Court broke down the various issues and found that despite the confusion of the document submissions, in its judgment, the initial error messages were easily understood and capable of being easily dealt with by a reasonably well informed and normally diligent tenderer. Therefore, the messages could not be considered a defect in the portal system that breached the principles of equal treatment, transparency or proportionality.

Further, the Court held that the Claimant failed to comprehend the issue behind the error messages because the employee uploading the submission was in a panic.

The panic was caused by having little time to submit the tender, which in turn led to the Claimant failing to note that the issues flagged by the error messages stemmed from easily correctable human error, rather than an issue with the portal.

The Court noted that, had the Claimant had a little more time, this would have been understood and rectified.

Key Takeaway

This case is a welcome reminder to bidders to ensure they are giving themselves plenty of time when submitting bids, particularly when done so via portals or software where human error can delay submission.

The Defendant contracting authority in this case was fully entitled to uphold its deadline as there were no faults with the portal.

Further, if the Defendant had not upheld the terms of the tender strictly, it would itself be at risk of failing to comply with the principles of equal treatment and transparency.

This could have potentially led to a successful challenge from other bidders who felt disadvantaged by complying with the deadline but removing the additional preparation time. 

If you need any advice on the procurement process generally, or with any specific issues, please contact our Procurement team.