It's a process that I am asked about all the time, when and how would you withdraw and amend a bid? Most municipalities permit bidders to withdraw a bid at any time up until the closing time for a tender or RFP. They will also usually permit the submission of a new bid in place of the bid that was withdrawn.
The following provisions are characteristic of the prevailing practice:
- Withdrawal of a sealed bid, after its submission to the purchasing section, is permitted only prior to the time and date of the closing of the tender.
- A bidder may withdraw a bid at any time prior to the closing date and time for the tender by delivering a written request to the address specified for the deposit of bids, but no such request received after that closing date and time shall be effective.
- A bidder who withdraws a bid prior to the closing time and date for the submission may submit a revised written, signed and sealed bid at any time prior to that closing date and time, but otherwise no amendment may be made to a bid after it has been submitted and in particular no amendment may be made to a bid orally or by fax, email, or otherwise than by a sealed document.
- A withdrawal request shall be effective only where made in writing, on company letterhead, and actually received by the purchasing section. A faxed withdrawal may be accepted where its authenticity appears genuine in the absolute discretion of the purchasing manager. Faxed documents are considered to be received only when receipt is confirmed (by fax or email) by the designated buyer for the RFP.
- Where an alternate bid is submitted without the withdrawal of a prior bid made by the same supplier, it is assumed that the bidder intends to make either offer and that the city may accept whichever it prefers.
It is a common condition that bids may not be altered or amended in any way after the closing of the tender.
Whether or not such an express term applies, the obligation to submit a bid in conformity with the guidelines, plans and specifications falls on the bidder.
The courts are particularly concerned with ensuring that the integrity of the tender process is preserved.
For instance, where mistakes are made by a bidder in preparing a bid it is the prerogative of the supplier to quote its own price and there is no authority on the part of the potential customer to revise the price, merely because it believes that the quoted price was in error. Ordinarily, the secrecy of the tendering process is critical to its intended function. Accordingly, unless the tender guidelines otherwise provide, it is not normally permissible for a bidder to make an oral amendment to its written bid.
Any general rule against amendment after the closing of tenders when applied to extreme sets of facts is problematic. In Vachon Construction Ltd. v. Regional District of Caribou, tenders were invited in connection with a construction project. When the first bid was opened, a discrepancy was found between the price as stated in words and the price as stated in figures. The bidder's representative was permitted to amend the bid by selecting the lower amount. This revised bid turned out to be the lowest bid and the contract was awarded to the bidder concerned.
The plaintiff was the next lowest bidder (whose bid exceeded the higher of the two amounts as originally stated in the successful bid). The action was dismissed and the plaintiff appealed to the British Columbia Court of Appeal. There, it was held that the original bid by the successful bidder was invalid due to uncertainty.
Stephen Bauld is a government procurement expert and can be reached at email@example.com.
Some of his columns may contain excerpts from The Municipal Procurement Handbook published by Butterworths