J B Leadbitter & Co Ltd v Devon County Council

In public procurement, a fixed tender deadline and a requirement for one complete submission may be enforced strictly where they serve transparency, equal treatment, security and probity. The principle of proportionality applies to the implementation of procurement conditions, but a contracting authority has a margin of judgment. The court intervenes only for an unjustifiable or manifestly erroneous decision.

Waiver of terms stated to apply without exception is exceptional. An authority is generally entitled to reject a tender omitting substantial elements, particularly where the omission results from the tenderer’s own error. An error-correction clause does not permit a tenderer to complete an incomplete bid after the deadline. A potentially successful tender has no independent right to consideration if the process rules have been lawfully applied.

The claimant, a construction company, challenged Devon County Council’s refusal to consider its tender for a four-year public-sector framework agreement. The tender had to be submitted electronically as one complete upload by a fixed deadline. The claimant uploaded the main tender before the extended deadline but omitted four required case studies and emailed them 26 minutes later.

It alleged breaches of equal treatment, non-discrimination, transparency, the duty to select the most economically advantageous tenders, and proportionality under the Public Contracts Regulations 2006 and Directive 2004/18/EC. The central issue was whether the authority had to waive the submission requirements or accept the missing material late.

The claim was dismissed.

1. The Public Contracts Regulations 2006 imposed enforceable obligations of equal treatment, non-discrimination and transparency. The requirement to select the most economically advantageous tenders did not create an independent right to have every potentially successful tender considered. The relevant question was whether the procurement rules had been drawn and applied transparently, equally and proportionately.
2. The principle of proportionality was capable of applying to the implementation of procurement terms. In matters involving judgment or assessment, the contracting authority retained a margin of appreciation. The court would intervene only where the decision was unjustifiable or involved a manifest error. This approach was consistent with Smith Glaziers (Dumfermline) Ltd v Customs and Excise Commissioners [2003] 1 WLR 656, Tideland Signal Ltd v Commission of the European Communities (Case T-211/02), and Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch).
3. A waiver of terms stated to apply without exception was exceptional because it risked unequal treatment, discrimination and lack of transparency. Proportionality might exceptionally require acceptance of a late whole or substantial part of a tender, particularly where the delay resulted from the procuring authority. It did not require acceptance here, where the omission resulted from the claimant’s own error and the tender documents clearly required a single complete submission by the deadline.
4. The error-correction provision in the invitation to tender applied to a genuine error discovered during evaluation in a tender properly submitted before the deadline. It did not remove the requirement for a complete tender or allow substantial missing documents, including the case studies, to be supplied later. Email submission was also impermissible because of the security and probity risks associated with disclosure before the deadline.
5. The different treatment of the tenderers affected by the power failure and the claimant was objectively justified. The extension was agreed before the original deadline, applied to all tenderers and resulted from circumstances outside the affected tenderer’s control. The claimant’s circumstances were materially different. Devon County Council’s rejection was within its lawful discretion.

The judgment records that the claimant issued proceedings with an application for interim relief. On 4 March 2009 the Chancellor granted an interim injunction requiring Devon County Council to evaluate the tender pending determination of the merits. This judgment then determined the claim at first instance.