Material deviation in tender bank guarantee validity renders bid non-responsive and cannot be cured after submission.

A tender condition requiring performance security by bank guarantee to remain valid for the stipulated period was treated as essential, especially after pre-tender clarification put bidders on notice that the clause would not be modified. A bid supported by a bank guarantee valid for only six months, instead of the required forty months, was inconsistent with the tender document and amounted to a material deviation. Because Clause 2.35 treated materially non-responsive bids as not substantially responsive and barred later correction, the defect could not be condoned after submission. The bid was therefore liable to be rejected as non-responsive.

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Issues: Whether furnishing a bank guarantee for six months instead of the stipulated forty months was a material deviation from an essential tender condition, and whether such defect could be condoned after submission of the bid.

Analysis: The tender conditions required the performance security bank guarantee to remain valid up to one month after the defect liability period. The pre-tender clarification process had specifically raised the point, and the department had stated that the clause could not be modified as a policy decision. On this basis, the tenderers were put on notice that any deviation in the period of the bank guarantee would render the bid non-responsive. Clause 2.35 treated a bid with material deviation as not substantially responsive and barred later correction. A bank guarantee valid for only six months, instead of the required forty months, was inconsistent with the tender document and with the employer's entitlement to the stipulated security.

Conclusion: The deviation was material and could not be condoned later; the bid was liable to be rejected as non-responsive.

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