Civil Engineering Reference
In-Depth Information
It is commonly assumed that it is necessary to invite three tenders and to accept the lowest
tenderer when having work carried out in cases where the cost will be reclaimed. In the best
of all possible worlds, that is indeed sound practice. However, circumstances do alter that
assumption. It must not be forgotten that where an employer has terminated the contractor's
engagement, the reason why the employer is in the position of having to get the work done
by another contractor is because the first contractor was in default or perhaps became in-
solvent. That consideration will always be a factor for a court.
Therearemanyinstanceswherethekindofworktoberemediedrequiresaparticularkind
of specialist or is so fragmented and of so many varied trades that it is impractical to seek
tenders and it is more important to ensure that the work is competently carried out. In the
the work was part of the damages which the Wests claimed from the architect, the principle
is the same. Three of the contractors on the original list declined to tender for the remedial
work. Two of the original contractors agreed to tender, and another contractor was added to
the list. Following tendering, two contractors were about £100,000 lower than the third con-
tractor. Then one of the two lowest withdrew its tender, leaving just two contractors. Vari-
ous aspects of the lowest tenderer caused concern and investigations were carried out. As a
result, it was decided that the higher of the tenderers should be accepted. This decision was
questioned by the architect, who argued that it was the lowest tender which should be con-
sidered when damages were awarded.
The court went through the facts surrounding the acceptance of the tender and concluded
that the Wests had done everything reasonable to obtain the best tender in a difficult tender-
ing climate. In this case, several firms would not touch the job, and the Wests were faced
with engaging a contractor and proceeding as quickly as possible or engaging in a very pro-
tracted negotiation and possibly re-tendering.
Architectsareofteninthepositionofhavingtoengageotherstocompleteworkordefects
on behalf of the employer, and they should not unduly agonise about competitive tendering
if it is not really practicable in all the circumstances.
