Help, My Bid was Late…Can I still Participate?

Help, My Bid was Late…Can I still Participate?

The bid tender process is one that is ripe with rules. Lawyers will almost always encourage you to adhere strictly to the terms of an agreed process, but what if, for no fault of your own your bid submission is late. Can you still participate in the process?

Consider this example: a municipality is looking to replace a water line and as such puts out a call to construction companies for bids. The closing date is March 5, 2025, at 2:00pm and bids must be submitted in person. On the closing date, you leave your office at 12:00pm, but due to a major accident you are delayed, and your bid is submitted ten minutes late. Is it a valid bid? The case law would suggest not.

The applicable legal framework highlights the potential existence of two contracts in a bid tendering process.

1. Contract A: Established when a call for bids is answered by a compliant bid between the requestor and the responder.
2. Contract B: A construction contract which automatically comes into force when the requestor accepts a bid.

A bid which is late does not create Contract A, and therefore cannot create Contract B.[1]

You may be wondering, what about force majeure, the legal remedy provided when something is in default due to an unforeseen event. Public policy considerations favour a strict interpretation of bid compliance.[2] Absent clear language in the tender documents permitting the acceptance of a late bid, it would be unfair to the compliant bidders to permit non-compliant bids to be accepted.

The case law supports that a bid is late when:

• A bid is late due to a computer glitch;[3]
• A bid is late due to traffic/an accident;[4]
• There is a discrepancy in some of the tender documents and a bid was submitted late in accordance with the error on some of the documents;[5] and
• The tender documents permit acceptance of a non-compliant bid, but not specifically a late bid, and a bid is submitted five minutes late.[6]

The takeaway? Like a good lawyer, submit early and with time for revisions! If your bid is late, you might shed a tear because you cannot participate.

[1] The Queen (Ont) v. Ron Engineering, 1981 CanLII 17 (SCC)

[2] See Coco Paving (1990) Inc. v. Ontario (Transportation), 2009 ONCA 503 at para 13: “Strong public policy considerations underlie these controlling principles.  Confi-dence in the integrity of government bidding processes is a matter of considerable public importance.”

[3] Coco Paving (1990) Inc. v. Ontario (Transportation), 2009 ONCA 503

[4] Corbel Management Corp. v. Canada (Public Works and Government Services), 2009 CanLII 43150 (CA CITT)

[5] Moorefield Excavating v. Municipality of Arran-Elderslie v Genivar Consultants, 2012 ONSC 1744

[6] NAC Constructors Ltd. v. Alberta Capital Region Wastewater Commission, 2005 ABCA 401

Please note that JSS Barristers insights are provided for informational purposes only. They are not intended as legal advice or a legal opinion. Please contact authors or JSS Barristers if you would like to obtain legal advice on this or other legal issues.