Fat finger syndrome - demolished!

Fat-finger syndrome so the ever-reliable internet tells us is the 'occasional tendency of stressed traders working in fast-moving electronic financial markets to press the wrong button on their keyboard and in the process lose their employer a mint'

Sadly any of us using a keyboard connected to the outside world is at risk of accidentally pressing the wrong button and bidders faced with an imminent deadline for submission of their tender via an electronic portal are no exception.  If cases before the courts are any reflection then there are a significant number of tenders submitted accidentally either with the wrong information out of date information or worst of all completely blank - it does happen just ask the Legal Aid Agency.

When this does occur the contracting authority has two choices: it can either reject the clearly defective tender out of hand or it can bring the obvious error to the attention of a bidder and ask for it to be remedied. Which approach is correct? While transparency and equal treatment are non-negotiable in bid evaluation contracting authorities do retain a margin of appreciation in matters of judgement provided the exercise of discretion is not manifestly wrong.

That means that both approaches could be correct depending on the circumstances. 

A Scottish court has recently considered the correct approach when dealing with the extent to which a contracting authority should allow a bidder to correct an obvious error. In this case a bidder for demolition work had its bid rejected because in relation to Lots 1 and 2 it had omitted mandatory financial information and for Lot 3 had submitted a blank template. The contracting authority disqualified the bid but the bidder argued that as the omissions were obvious and easily corrected it should have been allowed to correct the mistakes so that the bid could be fully considered. It argued that the Authority was bound to seek clarification.

The Authority argued that the requirement of strict compliance was plainly set out in the tender documents given to all bidders. The bidder was not asking to be allowed to correct a formality as it had submitted no figures whatsoever and it was not obvious what it had intended to submit.

The court found for the Authority. It said that there was no duty on the Authority to give a bidder the chance to correct its bid. The reservation of a right in the bid documents to clarify allowed the Authority to resolve ambiguities but not to seek late submission of information which should have been supplied but was not. Had the Authority done so here it was likely that it would breach the principle of equal treatment.

It is not always easy to draw the distinction between an ambiguity which might be clarified and the kind of correction which effectively gives the erring bidder a second chance.  In this case although the mistake was obvious allowing it to be corrected meant giving the bidder the chance to submit information it had been required to provide but had not something which is plainly unfair to bidders who had submitted their correct bid by the deadline.

Harsh though this might appear to the (perhaps junior) member of a bid team whose job it is to submit all of the tender on time it is an important reminder that it is never a good idea to leave bid submission to the last minute and to make absolutely sure that the bid is exactly what you need and want to submit. 

As for what happens when you try to submit a bid and the computer says no well that's another story.

Case referred to: Dem-Master Demolition Limited v Renfrewshire Council [2016] CSOH 150 CA78/16

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