Alleged incorrect information provided by a Departmental Contract Committee to a tenderer

Case notes investigated by the Parliamentary Ombudsman

 The complaint

The Director of a local Company (complainant) felt aggrieved at the disqualification of his tender for a particular medicinal product by the Departmental Contracts Committee.  He argued that the Committee had wrongly interpreted a statement in his tender offer in respect of the expiry date of the product offered, and as a result disqualified his tender.  Subsequently, the Chairperson of the Committee had given him wrong information about the deadline for submission of an appeal.  He subsequently submitted his grievance to the Director of Contracts but was still not satisfied with the outcome.  He had also argued that the processing of this tender was inconsistent with previous practices.

Facts and findings

On 9 April 2012 complainant was informed by means of a faxed letter that his tender for the product under consideration had been disqualified on the grounds that it did not conform with the tender specifications as regards the shelf-life of the product offered.  Complainant was at the same time informed that he could lodge an official objection by noon, 13 April 2012 against a deposit of €400.

Complainant replied on the same day, acknowledging the information regarding his right of appeal and on the basis of his experience, three years earlier (when he appealed the decision in respect of another disqualified tender) he declared that the Company was “not in a position to appeal in this case”.  In its reply the Departmental Contracts Committee reminded complainant of the right to an official objection against a deposit.

Instead of lodging an official objection, complainant sought redress from the Director of Contracts informing him that the deadline given to him by the Departmental Contracts Committee was mistaken in terms of Regulations 5 & 6 of Legal Notice 296 of 2010 which allow for five working days for such objection when in effect the deadline that was imposed on him fell short of what the regulations allow.  The Director Contracts requested complainant to clarify his claims.  Complainant argued that based on past experience he needed legal advice prior to submitting his objection and this was not possible with the reduced deadline imposed by the Departmental Contracts Committee.  He argued that he was given four days within which he could ‘appeal’ – and not five as stipulated by law.  He therefore requested to be compensated, that measures be taken to ensure that such decisions are not repeated and that ambiguities/imprecise information in tender documents are appropriately addressed.  The Director of Contracts informed complainant of action that was being taken on his part to address these issues.

Considerations and comments

In his deliberations the Ombudsman considered that complainant had made two allegations.  The first one relating to the disqualification of his tender, while the second one related to the wrong information given to him by the Departmental Contracts Committee regarding the time frame within which complainant could submit a formal objection or appeal.  In respect of the latter complainant argued that he was not given enough time to seek legal advice in order to prepare his appeal.

As regard the disqualification of complainant’s tender, the Ombudsman considered that this fell within the competence of the Revisions Board in terms of paragraph 21 “Right of Recourse” of the tendered document which states that any tenderer who is aggrieved by an award of a contract may file a letter of objection, together with a deposit, within five working days from the publication of the notice, setting forth any reason for his complaint.  This statement is in conformity with paragraph 3 of Regulation 21 of Legal Notice 296 of 2010 as subsequently amended.  The Ombudsman opined that, in the first instance, it was this Board that had jurisdiction to decide whether the decision to disqualify complainant’s tender was correct or not, and if not, decide on redress.  The Ombudsman is not a substitute for this Board if a complainant does not, for a valid reason, avail himself of this means of redress.  The reason given by complainant for deciding on the first day of receipt of the notification of the disqualification of his tender, namely that of already having lost an appeal three years earlier, was not in any way, a valid reason. Neither were his other subsequent arguments of not having time to consult his lawyer.  Therefore the Ombudsman abstained from taking further cognisance of the allegation in respect of the merits of the disqualification of complainant’s tender.

In so far as concern the alleged misinformation on the deadline for appeal, the Ombudsman noted that complainant was informed by fax on the morning of 9 April 2012 of the disqualification of his tender and was given the reasons for this decision.  He was further given up to noon of 13 April 2012 to appeal against a deposit of €400.  In such situations where a short deadline is given, the first day of the notification is not to be considered for the purpose of the deadline period.  This means that complainant was given less than the prescribed period of five working days prescribed by Legal Notice 296 of 2010.

In considering complainant’s argument that it was only subsequently that he became aware of the mistake in the deadline and did not have enough time to prepare an appeal on the advice of a lawyer, the Ombudsman acknowledged that the deadline communicated to complainant fell short of that stipulated in the tender document and by law.  However the Ombudsman could not ignore the following facts.

a) the tender document submitted by complainant included a statement that the tenderer is declaring that he is aware of the relevant laws and regulations pertinent to the tender;

b) paragraph 21 “Right of Recourse” in the same document informed, the would be tenderers of their right to object to an award within five working days from notification, against a deposit.  The above means that complainant knew, or should have known of his rights in this respect;

c) despite the shorter deadline, complainant had on the same day of receipt of notification replied to the Chairperson of the Departmental Contracts Committee.  This means that on the first day of the period communicated to him, complainant had already formulated his reply.  In this reply he declared that on the basis of past experience, the Company was not in a position to benefit from an appeal[1].  In effect he had at that time decided not to exercise his right of appeal; and

d) notwithstanding the above, if complainant had meanwhile changed his mind and wanted to consult his lawyer, he could still have written back objecting to the mistaken deadline, argue that this misled him on his decision and request more time to submit his objection.

For the above reasons the Ombudsman did not consider that the mistaken notification on the part of the Departmental Contract Committee negatively affected complainant’s right of appeal.

Since in the course of the investigation the Ombudsman drew the attention of the Chairperson in respect of the statutory period of five working days for submission of an appeal, and noting that the Chairperson had assured him of action taken by the same Committee to change its policy, the Ombudsman decided that there was no scope for any recommendation in this respect.

[1] In actual fact the merits of the disqualification of complainant’s 2009 tender were totally different from those of the present case.

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