In fact, we all know that a bid must be compliant to be considered for contract award. To avoid these types of non-compliant bids, you can email or call all bidders before the deadline to make sure they`ve received the surcharges, or you can automate this by using web-based software that records whether your bidders have received and read the surcharges. This way, when you open the results, you can be sure that they are all comparable and complete. The provincial project manager found the commas in the MQPP form confusing and could, for example, have induced a bidder to use a bid with a 1,600 mm pipe instead of 600 mm, which was intended. To avoid confusion, the project manager replaced the PPQM form with a redesigned CQM form that used periods instead of commas. The revised SQPP form has been included in Appendix 1 of the tender documentation. Problems arose when the successful bidder used the original SQP form (with commas) for its bid. Cougar, the second lowest bidder, used the revised (with delays) MCPP form. Cougar then sued the province for accepting an offer that did not strictly comply with the amended terms of the tender. In other cases, courts have found that the use of a form other than the correct form may result in the non-conformity of an offer: see, for example, Steelmac Ltd.
v. Nova Scotia (Attorney General) (2007) 61 C.L.R. (3d) 280 (N.S.S.C.) if an offer was made on a non-mandatory form that did not contain the written assurances on the prescribed form that the court found essential; and Eastern Regional Health Authority v Kannegiessar Canada Inc. (2015) Nfld. & P.E.I.R. 241 (NL), where the bidder contained a restriction on the prescribed form that the court considered a non-compliant counter-offer. In Cougar, the trial court found that the use of the original (incorrect) SQP form was not substantial and merely constituted an irregularity that did not affect the quantities or prices of the pipes to be supplied. The use of the wrong form in this case was not unfair to the other unsuccessful bidders, including the applicant Cougar.
Common sense prevailed, and the Newfoundland and Labrador Court of Appeal applied Ron Engineering and Double N and dismissed the appeal. As the Cougar case shows, the key to compliance analysis is unfairness to other bidders. While Cougar is technically correct in saying that the form submitted by the successful bidder was not the correct one, it was not possible to demonstrate that the injustice resulted from the use of the wrong form or, more importantly, could have occurred. In enforcement, compliance really means: Was it fair to everyone bidding? A bidder`s error does not automatically disqualify the bidder, unless the error results in at least theoretical unfairness to the other bidders. As one court has concluded, the assessment of the compliance issue begins with the express terms of the tender documents. In some cases, it is relatively obvious that an offer matches the offer. If an alternative offer is accepted, it cannot replace a compliant offer. It must be submitted in addition to a compliant bid so that all bids can be comparable before other options are considered.
More rarely, a tender that was initially found to be non-compliant may be considered compliant in a subsequent examination. Tenders give businesses of all sizes access to a variety of ways to sell to the government, but navigating the process can be intimidating. In this article, we`ll explain the difference between a non-compliant, non-compliant, and alternative offer and why it`s important to understand the language and interpretation of definitions (and what bothers people). In order for bids to remain as comparable as possible, you must correctly capture all bidders` questions, formulate clear answers and send the appropriate surcharges. However, since questions can come by email, in person or by phone, sometimes some of these questions are overlooked! Well, not from you, of course, but someone else;) in your office. These omissions can often lead bidders to make different assumptions, resulting in more non-compliant bids.