Late tenders Acceptance of late documents found to be lawful The Irish High Court has ruled in the case of BAM PPP v National Treasury Management Agency & Minister for Education and Skills [2015 No 176 JR] that the acceptance of a number of tender documents, submitted by a bidder after the deadline for submissions had passed, was lawful. The NTMA, on behalf of the Minister for Education and Skills, conducted a competition to select a contractor to design, finance, build and maintain new academic buildings for Dublin Institute of Technology on the Grangegorman campus in Dublin. This was a complex tender process, involving the submission of hundreds of tender documents via an electronic portal system. Three bidders participated in the process, including BAM and a consortium known as ‘Eriugena’. The tender submission deadline was 5pm on 28 November 2014. Two of the bidders, including Eriugena, did not submit all of their documents on time, whereas BAM did. Eriugena submitted 8 (out of 280) documents between 5pm and 6.13pm. The NTMA considered that it had a discretion to accept the late documents and it did accept them. Following evaluation, Eriugena was selected as the preferred tenderer and this was notified to the other bidders. BAM objected to the NTMA accepting Eriugena’s late documents and commenced legal proceedings to have the decision to select Eriugena as the preferred tenderer set aside and seek a declaration that BAM should be the preferred tenderer as it had submitted the only compliant tender. BAM argued that the contracting authority had no entitlement to accept the late documents and that Eriugena ought to have been eliminated from the competition. BAM’s principal contentions were that the NTMA had misdirected itself and made a manifest error by exercising a discretion that it did not have, and, in the alternative, that any discretion could only be exercised in exceptional circumstances which, BAM claimed, did not exist. The NTMA argued that it had a clear discretion to accept late documents, including by virtue of the provisions of the Invitation to Negotiate (ITN) and general principles of European procurement law. Having investigated the delay in uploading the documents the NTMA had found that there were technical problems uploading the larger files but that none of the late documents had been modified materially after the 5pm deadline. All but one of the documents contained information that had already been submitted in other documents uploaded prior to the deadline. The High Court found against BAM on all grounds and its application was dismissed. It was held that the NTMA had a discretion to accept the late tender documents, both according to the terms of the ITN and in ‘exceptional circumstances’ as a matter of law, even where there is no express or implied discretionary power given in the tender documents. What constitutes ‘exceptional circumstances’ is for the contracting authority to decide and in this it has a wide margin for appreciation. ‘Exceptional circumstances’ would clearly encompass situations of force majeure or power failure, but also other circumstances ‘when viewed objectively, particularly from a tenderer’s perspective’. In this regard the Court considered that the NTMA was entitled to take into account the context of an expensive 31 week tender process and the public interest in progressing the project rather than risking its abandonment (which the NTMA considered a possibility because two of three bidders had submitted late).