Is that a late tender
Evan Stregger, PQS, C.Arb.

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Controvery sometimes arises over the interpretation of the closing time for a tender. The Question will arise: "Is that a late tender?"

The answer turns upon the wording of the tender documentsl depending upon how the documents are worded, the two key interpretations can be:

1. It must be received not later than the stated closing time; or,
2. It may be recieved at the stated closing time plus 59 seconds.

Two recent court rulings, one in British Columbia and the other in Ontario, have addressed this issue.

1. In Smith Bros and Wilson v. British Columbia Hydro and Power Authority and Kingston Construction Ltd. in the Supreme Court of British Columbia by Justice D.W. Shaw, time according to the Advertisement and Instructions to Tenderers was set out as follows:

0.1 the Advertisement to tender used the expression:

B.C. Hydro will receive tenders until 11:00 a.m. local time...

0.2. the Instructions to Tenderers said:

Closing Time -- Tenderers shall deliver their Tenders... not later than 11:00 a.m. local time.. (The "closing time"). and Tenders which are delievered after closing time will not be considered.

As Justice Shaw read both the Advertisement and the Instructions, nothing implies that "11:00 a.m. local time" means the time according to B.C. Hydro's clock. There is nothing to suggest that if B.C. Hydro's clock is inaccurate that it will nonetheless prevail over accurate time. He did however note that "There is some evidence of custom that generally the clock used by the party receiving tenders will govern. But none of that evidence goes so far as to establish that on a close disputed call, an inaccurate clock will prevail over accurate time. While a provision to cover that situation could be included in the Advertisement and the Invitation to Tender, none was used in the present case."

He also found that "When the Smith Bros. tender was delivered, it was almost immediately stamped by the Widmer clock. At that time, both the clock and the stamp read 11:01 a.m. The conclusion I draw, based upon Mr. Lee's report, is that the tender was received after 11:00 a.m. and before 11:01 a.m. actual time."

Kingston Construction (the second bidder who was awarded the contract) submitted that whatever may have been B.C. Hydro's policy, it cannot change the clear provisions of the Advertisement and the Instructions to Tenderers. The words in each document are "until 11:00 a.m." and "not later than 11:00 a.m." respectively.

Justice Shaw concluded, "In my opinion, one cannot read into the quoted words that the time for delivery of tenders will extend past 11:00 a.m. until almost 11:01 a.m."

2. In Bradscot (MCL) Ltd. v. Hamilton-Wentworth Catholic School Board heard by Justice Somers of the Ontario Court of Justice (General Division) it was determined that the tender submitted thirty seconds after the time of closing was not late. The tender documents stated "Friday May 8, 1998 at 1:00 p.m." as the deadline. The Owner's Instruction to Tenderers made it emphatically clear that bids not received by the time stated "WILL NOT be accepted by the owner." The official clock was a digital one, but it showed the hours and minutes only and did not record the seconds. According to the watch of the representative from Bradscot (MCL) Ltd., the second bidder, the time that the tender of the low bid was submitted was 30 seconds past 1:00 p.m. The President of the Ontario General Contractors' Association stated in a letter: "In our opinion any tender received after the instant of 1:00... is later... One thing for sure contractors understand the tender that is even one second late, is late, and should not be considered." The Board's Architect offered the opinion that where the bid closing time is stated to be 1:00 p.m., any bid received at 1:00 p.m. was delivered on time, and for a delivery to be late the clock would have to register 1:01 p.m.

Justice Somers reviewed the decision in Smith Bros and Wilson v. British Columbia Hydro and Power Authority but did not find it particularly helpful as the clear provisions and particular words in that matter were "not later than 11:00 a.m." Justice Somers noted that the relevant bid deadline in the matter was set as "Friday, May 8, 1998 at 1:00 p.m." Justice Somers then concluded: "In my opinion when it is stated that some deed be done 'at 2:00 p.m.' the time is for that minute and the act is not overdue until the minute hand has moved off the 12 hand to the :01 position."

Clearly the answer is in the wording of the tender documents. "Before and not later than" clearly has a different legal meaning then "at." Bidders, in my experiance, are always waiting for one last, lower price or final adjustment. Submitting your tender prior to the stated closing time is the only certain way to avoid this problem.

Evan Stregger, PQS, C. Arb. practices in dispute resolution, legal support and as an expert witness in British Columbia and Ontario. The above is provided for information only and it is not intended to replace the need for qualified legal advice.

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