Can a small non-compliance get your bid rejected?

Important Court of Appeal Decision – Implications for Public Sector Bidders
I am posting about a fascinating recent Court of Appeal decision that may come in very handy. It ruled on DWP’s decisions about bid compliance, errors, and most interestingly to us, the responsibility of authorities to seek clarification if they spot an error in our bid. It also reconfirms a previous court ruling (the case I was expert witness for) that your bid cannot be rejected for non-compliance unless the ITT makes it absolutely clear how that is triggered.

Background
The case involved a procurement conducted by the DWP under a Framework. DWP rejected a bid by Optima as non-compliant, pointing out that it was above the framework price-cap (but only by 0.02%). They also pointed out that it said in the ITT that non-compliant bids would be ‘discounted’.

Optima challenged the exclusion, arguing the error was minor and DWP should have sought clarification, and that the term ‘discounted’ was unclear. This was rejected by lower courts but upheld on appeal.

The Court of Appeal provided useful clarity that has direct consequences for how you should interpret bid requirements – and how authorities should handle minor bid errors.

What This Means for Bidders
1. Ambiguity in Tender Documents Can Be Challenged
The Court found that the term “discounted” in the ITT was ambiguous and did not clearly equate to “excluded.” In your future bids, if you encounter vague language – particularly relating to compliance or disqualification – know that you may have legal grounds to challenge a strict interpretation.

2. Minor Pricing Errors May Not Justify Exclusion
The Court held that Optima’s minor pricing error (0.02% on one item) did not justify disqualification, particularly given that Optima scored far higher than the only other compliant bidder. This is a crucial point: minor, obvious errors that do not materially change the substance of your offer should not automatically lead to exclusion.

3. Contracting Authorities Must Exercise Proportionality and Common Sense
DWP argued that seeking clarification from Optima would breach the principle of equal treatment. The Court disagreed. It concluded that if a contracting authority identifies an obvious and material error, it should seek clarification – particularly if the correction could change the outcome of the award.
4. Bidders Can Now Push Back More Confidently
If you suspect that your bid is being unfairly excluded due to ambiguous instructions or minor, obvious mistakes, this ruling strengthens your hand. Authorities must apply common sense, fairness, and proportionality – and can no longer rely on rigid, overly literal interpretations of their own documents.

Looking Ahead – Under the Procurement Act 2023
Although this case was decided under the PCR 2015, the reasoning will remain relevant under the Procurement Act 2023. The new Act still emphasizes proportionality and fairness, and the discretion to exclude suppliers for procedural breaches must be exercised with clarity and precision. For suppliers, this means two things: Scrutinise ITT language carefully and question vague or ambiguous provisions up front. Document any errors or inconsistencies in your bid and be prepared to explain them clearly and promptly if asked. This case is a timely reminder for all of us bidding into government: accuracy matters, but when mistakes happen, you may have more rights than you think—especially when the contracting authority has the discretion (or obligation) to seek clarification rather than disqualify.

The full article is at Clarifying errors in public procurement bids – common sense prevails? | Bevan Brittan LLP. It is an interesting read. If you would like to chat over how all or any this may affect you and your business, please give us a call at any time for a no-obligation chat. What you should do now If you have found this update helpful, please do let me know (it will encourage us to do more). If you would like further insight on this please respond to this mail or call us on 01227 860375.