PCR therefore gives contacting authorities a power not a duty to require an explanation as to abnormally low tenders and they can only exclude them where the evidence provided does not account for the low price.
Are the courts likely to uphold claims for abnormally low tenders?
NATS (Services) Ltd v Gatwick Airport Ltd was approved more recently in the case of SRCL Limited v The National Health Service Commissioning Board in which the judge concluded that the courts should be “very slow to interpret the Regulations…. as imposing some wide ranging obligation …. to determine whether there is or might be an abnormally low tender”.
Conclusion for bidders
Therefore, when approaching the price section of a tender, bidders should note that whilst an abnormally low tender can be excluded, that it is not a forgone conclusion. The power must be exercised by the contracting authority and other bidders have no ability to strongarm them into doing so.
This article is an outline of the issues for general information. Professional advice specific to the circumstances should be sought. Should you require further information, please contact Lisa Boyd.