clr/1987/1987_3_1939.pdf

(1987)When the clock at the officesof the C o m " ^ ι ο η showed the ^our i ' j j 10 o' clock,and iu accuracy wascheckedandconfirmedby consultingtheclock in the public square outside the building Mr Mouskos stepped out of his office and closed the tender box in oraer to asport it inside the building On hisway tothepremises no sooner thanhehad walked adistanceofabout ten paces a representative or agent of the appellants caught up with him and submitted their tender 5 The Director-General of the Grain Commission decided to accept the tender Eventually, the Board of the Commission awarded the tender to the appellants for the obvious reason that it was lower than that of the JQ respondents by £300,000 The decision was annulled by aJudge of this Court Hence these appeals Held allowing the appeals

(1)The pnnciple emerging fromthe caselaw is that stnct adherence to the terms of a condition of the tender is directly dependent on the matenality ofthe term, aterm 15 essential, ifconsequential \ 5 for the decision or its observance is necessary for the sustenance of the efficacyoftheadministrative process The timeliness ofthetenderisordinanly a factor consequential for the decision for it ensures equality of treatment among tenderers on the one hand, and rules out the possibility of abuse arising from any forewarning to a late tenderer about the content of timely of) tenderson the other

(2)The determination of the timeliness of the tender is a matter for the Administration and as in every other case the Court will not interfere with its assessment of the factual situation so long as the decision is one reasonably open to them 25

(3)The fact that the tender was not received through tender box did not automatically seal the fate of the tender

(4)In this case it was reasonably open to the Grain Commission to accept the tender In the first place,there was a possibility of errors of seconds ora minute in discerning time and, in the second place, the facts exclude the possibility of unfair advantage being denved fromlate tendenng 30

(5)The award was, also, challengedon the groundoflack of possession of thenecessary equipment bytheappellant However,suchpossession was not a condition precedent to the acceptance of the tender

(6)A stipulation that went unnoticed was that the Grain Commission «was not bound to accept the lowest or anyone tender·, a provision explicity intended to safeguard to the Commission freedom to reject any tender on good cause

(7)The differencebetween the pnce of therespondents' tenderandthat of the appellants amounted to £300,000 Moreover, in the absence of a y indication of foul play on the part of the appellants, it would have been 1940 35 40 3C.L.R. Κ. & Μ.Transport v. E.F.A.& Others perfectly legitimate for the Commission toaccept the tender,even if it was submitted a minuteortwo after theappointed hour Appealsallowed. No orderasto costs. 5 Casesreferredto. Medcon Constructionand othersv. TheRepublic

(1968)3 C.L.R.548; Papadopoulosv. TheRepublic

(1985)3 CL.R 154: Chnstofides Tradingν TheRepublic

(1985)3 C LR.547. Kounnas and Sons v. TheRepublic

(1972)3 C LR 542. 10 Georghiadesv. TheRepublic

(1982)3 C.L.R.659. Tyllisand Co. Ltd.ν TheRepublic

(1986)3 C.L R.

1. Appeals. Appeals against thejudgment of aJudge of theSupreme Court of Cyprus (Sawides, J.) given on the 21st November, 1986 15 (Revisional Jurisdiction Case No. 40/86)* whereby thedecision of the Cyprus Grain Commission to accept the tender of the interested party (K. and M.Transport Co.Ltd.)was annulled. M. Chnstofides, for the appellants in R.A.
2. C. Velaris, for appellants inR.A.
3. 20 K- Talarides,for respondents inboth appeals. Cur. adv. vult, A. LOIZOUJ.: Thejudgment of the Courtwill be delivered by Pikis, J. 25 30 PIKIS J.: The Grain Commission is a statutory corporation** entrusted with the control and distribution of grain, a vital commodity for the well being of the public. In November 1985 they invited tenders for the transportationof theirproductsfor the years 1985-
4. The notice articulated the tendered terms and specified thedate,hourandmethodof tendering.Tenders should be submitted on 5th December, 1985, not later than 10 a.m., by depositing them In the tender box posted outside the central offices of the corporation at Nicosia. The respondents, Eteria •Reportedin

(1966)3C.LR. 2014. · · (See,CramControlLaw -Cap. 68(amended). 1941 Pikls J, Κ. & Μ.Transport v. E.F.A.& Other*

(1987)FortigonAftokinition (EFA)andtwoothers,submitted theirtender before the expiration of the hour appointed by the notice. But doubtsarose withregard tothetimeliness ofthesubmssion ofthe tenders of the appellants, K. & M.Transport Co. Ltd.The facts relevant to the submission of the tender of the appellants were 5 elicitedintheevidence of Mr. ChristakisMouskos,theChiefClerk of the GrainCommission charged with responsibility toclosethe tender box at the set hour and remove it to the offices of the Corporation. When the clock at the offices of the Commission showed the 10 hour to be 10 o' clock, and its accuracy was checked and confirmed by consulting theclock inthepublicsquare outsidethe building, Mr. Mouskos stepped out of his office and closed the tender box inordertoasport itinside thebuilding. Onhisway to the premises, nosooner thanhe hadwalkeda distance of about 15 ten paces, a representative or agent of the appellants caught up with him and submitted theirtender. Mr.Mouskos refused tore­ open the box and thereby facilitate the insertion of the tender therein,informing appellants' agentthatfor thattheyhadtoawait theinstructionsof Mr. Charalambous,theDirector-Generalof the 20 GrainCommission.Onbeingapprised ofthefactssurroundingthe submission of the tender of the appellants, Mr. Charalambous decided toaccept itas having been madewithinthetimelimited by the notice. Inexplanation of his action he stated in evidence thatitwas thefair course tofollow as theywere notguided inthe 25 determination of the time by the Greenwhich chronometer.A detail of the evidence of Mr. Mouskos of which it is worth remindingisthatitwas notpossibleby looking attheclockinthe square totell with precision whether thehourwas 10 o' clockor half a minutetoten. 30 The Board of the Commission awarded the tender to the appellants for theobvious reasonthatitwas lower thanthatofthe respondents by £300,000.- The learned trialJudge annulled the decision on the ground that tender of the appellants had been submitted out of time and consequently in breach of a material 35 term of the invitation to tender. Moreover, the decision of the respondents was taken without comprehensive prior knowledge of thecircumstances attendingthesubmission ofthetenderofthe appellants. 1942 3 C.L.R. 5 Κ. & Μ. T r a n s p o r t v. E.F.A. & Others PUdsJ. Learned counsel addressed usatlength on the importanceand implications of the terms of the tender and the duty of the Administration to observe those conditionsas a matter of proper administration and equality of treatment of the tenderers. The implications stemming from breach of theconditionsstipulated in the tender were examined on at least three occasions by three different membersof thisCourt,namely,byTriantafyllides J..ashe then was, in Medcon Construction and Others v. The Republic*. by L.Loizou,J.,inPapadopoulos v.TheRepublic**and myself in 10 Chnstofides Trading v. The Republic***.The principle emerging from the caseiaw**** is that strict adherence to the terms of a condition of the tender is directly dependent on the materiality of the term;a term is essential if consequential for the decision or its observance is necessary for the sustenance of the efficacy of the 15 administrative process. Thetimeliness of thetenderisordinarily a factor consequential for the decision for it ensures equality of treatment among tenderers on the one hand, and rules out the possibility of abuse arising from any forewarning toalatetenderer about the content of timely tenders, on the other.Therefore, we 20 agree with the learned trial Judge that compliance with the time provisions of the invitation to tender was a condition for the acceptance of thetender. The determination of the timeliness of the tender is like any other matter pertaining to fulfilment of the terms of the tender,a 25 matter for the Administration and as in every othercase***** the Court willnotinterfere with its assessment of the factual situation so long as the decision is one reasonably open to them. The pertinent question in this case is whether it was, in the circumstances underconsideration,reasonably open tothe Grain 30 Commission to accept it as timeously made. The fact that the tender was not received through the tender box did not automaticallysealthefate ofthetender.Forexample, anofficial of • theGrain Commission might mistakenly close thetenderbox five or ten minutesbefore theeffluxion of the stipulated time interval. *

(1968)3C.L.R

1. ••(198513 C.LR.
2. "'(1985I3CL.R.547 ·'" See alsoKounnss&Sonsv. Republic

(1972)3 C.L.R.542 ·*··* (See,Interalia. Georghiadesv. Republic

(1982)3C.LR. 659,668-669: Tyffif &Co. Ltd v. Republic

(1986)3C1..R. 401, 411). 1943 Pikis J. Κ.&Μ.Transportv.E.F.A.&Others

(1987)The submission of the tender through the tender box was notin itself a material term of the tender but a procedural one designed toensure maximum efficiency inthesubmission of tenders.Could an administrative body, acting in the bona fide discharge of its duties, accept in good reason and sense the tender of the appellants as having been made in time? Our answer is in the affirmative. Notonly there was an inherentlikelihood of a margin of error of seconds or a minute or two occuring in the discerning of time but the possibility of unfair advantage being derived from late tendering could be confidently ruled out. 5 10 Thedecision affecting thetimeliness of thetenderwas entrusted to Mr. Charalambous, the chief executive of the respondents, which was in due course relied upon and espoused by theGrain Commission Board. Inourjudgment itwas reasonably open tothe respondents to treat the tender of the appellants as valid and 15 evaluate it,along with the othertenders, on its merits. The acceptance of the tender of the appellants was also challenged on the ground that they lacked the means to perform the contract,namely, thattheydid nothave attheirdisposal, atthe time the tender was made, as sufficient number of licensed 20 vehicles to carry out the obligations envisaged in the tender. Possession of the necessary equipment at the time of making the tender was not a condition precedent to the acceptance of a tender. Amenity to perform the contract was contemplated as a condition to be included in a contract that might ensue from 25 acceptance of the tender. Any breach of such condition would entitle the Commission to rescind the agreement in view of the provisions of Clauses 7, 7.1 and 7.2 of the invitation totender. A stipulation of the invitation to tender that went virtually unnoticed,was Clause 10.3 providing thattheGrainCommission 30 «was not bound to accept the lowest or anyone tender»; a provision explicitly intended to safeguard to the Commission freedom to reject any tender on good cause. And they had every cause to reject the tender of the respondents on account of the difference between the price of their tender and that of the 35 appellants amounting to £300,000.- Moreover, in the absence of any indication of foul play on the part of the appellants it would have been perfectly legitimate for theCommission toaccepttheir tender even ifitwas submitted aminuteortwo after theappointed hour. Infact, it would have been an abuse of power on their part 40 1944 3 C.L.R. Κ. & Μ.Transportv.E.F.A.A Others PikisJ. iftheyhadaccepted thetenderof therespondentsinpreference to that of the appellants and charged the corporation with an additional liability of £300.000. For the reasons above indicated,the appeals are allowed. The 5 judgment and order as to costs are set aside. The decision of the Grain Commission to award the tender to the appellants is confirmed pursuant to the provisions of Art. 146.4(a) of the Constitution. Let there be no order as to costs. Appeals allowed. No order as to costs. 10 1945