29 March 2021

Court rules tender closing times are fixed

Submitted by Gerrit Davids

In a recent judgment, the High Court in Kwazulu-Natal dismissed an application by a potential bidder; wherein a municipality refused to accept the latter’s bid, after the stipulated closing time. 

Prior to the dispute, the municipality issued a tender with a specific closing date of 11h00 and duly extended it until a future date, without qualification as to whether any other material instruction of the initial tender, has also been changed. 

The aggrieved company was of the view, that since the “Extension Notice”, did not contain a specific instruction as to the time at, which bids must be submitted, it’s interpretation was, that any time up to and before midnight would be acceptable, and according to the Court, they were presumably, accordingly so advised by their legal representatives, of such an incorrect interpretation. 

Further, it argued that its bid document, “Was ready for submission” on the closing date, “By approximately midday” and on the day before, at 22h35 sent an email, in which it, “Made enquiries regarding the delivery address for the expression of interest.” 

An employee of the municipality replied to the email the next day, stating, 'As per our telephonic discussion this morning, the delivery address and time is clearly stated on the tender document, page 2 - see attached, of which you would have had access to, in order to prepare a response to the expression of interest”.  

In the telephonic conversation between the two parties, the municipal employee advised the company representative that the date had been extended but not the closing time of 11h00, as was stated in the initial bid document.  

The tender box was cleared after 11h00 on the day and realising that it had missed the deadline, the company instructed its legal representatives at 12h30 to send an email to the municipality claiming that the deadline, which had been extended, did not stipulate a closing time and that, “Consequently, the civilian method of calculation applied and the applicant was entitled to deliver the expression of interest document up to and including midnight”, on the closing date, per se. 

The municipality contended, that if it had to make an allowance for the company to submit its bid after the closing time of 11h00, then it would certainly prejudice the interests of other bidders, who have submitted their bids timeously. 

According to Gerrit Davids, Lead Advisor at TaranisCo Advisory (Tendering Agency), “The Court quite rightly dismissed the company’s application to prevent the municipality from evaluation and adjudicating the tender, since in the absence of where no time had been stipulated in the initial bid document, then the company could have relied on the “Civil Method of Calculation”, meaning up to and before midnight, on the date in question.” 

Davids says, “However, one also has to agree with the Court, that all the extension letter did, was to change the date and not the closing time, per se. Bidders are well advised to study the rules of engagement when submitting tenders for government and not to be rejected for misinterpreting, the accompanied instructions.” 

Gerrit Davids, Lead Advisor, TaranisCo Advisory (Tendering Agency) 

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