Civil Engineering Reference
In-Depth Information
that tenderers were informed that competitive tenders were being sought was treated in law
as an offer that any tenderer who submitted a tender would expect to be treated fairly. It would
intrude into the ordinary commercial freedom or discretion to accept or reject a tender or to
negotiate with whoever seemed best in the eyes of the person seeking tenders. There must
therefore be some good reason why obligations of the kind suggested by Harmon can arise.
215. In this instance tenders were sought using the restricted procedure under the 1991
Regulations which provides tenderers with some protection in as much as they should not be
tendering along with anyone who was not considered to be qualified to carry out the work in
question and had satisfied other requirements. The restricted procedure is intended both to
provide the contracting authority with a mechanism whereby tenders are only sought from a
selected short list and to provide the tenderers with the knowledge that the competition will
come from true competitors. In addition tenderers who had not been selected can challenge that
decision. The 1991 Regulations are seemingly comprehensive. They give disappointed tenderers
rights to prevent the procedure from being abused and to obtain reasons and to question the
award. The requirement to give reasons itself imports an obligation of fairness even if it were
not grafted on by the decisions of the European Court of Justice governing the interpretation
of the parent legislation. I therefore consider that H of C is right in its primary submission.
216. On the other hand, the procedure of the 1991 Regulations was not followed. H of C
did not inform the other tenderers it would be considering Seele/Alvis' option B2 alongside
tenders based on the new specification. If I am right in my conclusion that H of C only sought
alternative details then can Harmon complain of the decision to consider Seele/Alvis's tender
on the basis that it offered an alternative design? The discussions in the autumn of 1995 devi-
ated from the 1991 Regulations procedures in that they went beyond mere negotiations and
clarifications. They entertained an alternative design, of which the other tenderers were
unaware (at least formally). If Harmon cannot complain of the result under the 1991
Regulations does this not mean that the 1991 Regulations are not as comprehensive as they
might first appear - or that they do not effectively control deviations of the kind adopted by
H of C? In my judgment by repeating the offer to consider alternatives, on 11 September and
on 2 and 30 October 1995, it was to be implied in that offer that by submitting a tender any
alternatives would be equivalent to the schemes or schemes for which revised tenders were
being sought and would be options only in terms of refinements of detail design which would
reduce cost, albeit confidential to the tenderer but falling short of different proposals which
were more than matters of detail but ones of changes of design, of which tenderers were not
informed and therefore were entitled to assume were not matters which they needed to take
into account. In my judgment even though all tenderers accepted that they would not be
entitled to see alternatives of detail which were considered to be commercially confidential to
a given tenderer, H of C in soliciting new or revised tenders under the European public works
regime (to which effect is given by the Regulations) impliedly undertook towards any tenderer
which submitted a tender that its submission would be treated as an acceptance of that offer
or undertaking and: (a) that the alternative submitted by any tenderer would be considered
alongside a compliant revised tender from that tenderer; (b) that any alternative would be one
of detail and not design; and (c) that tenderers who responded to that invitation would be
treated equally and fairly.
These contractual obligations derive from a contract to be implied from the procurement
regime required by the European directives, as interpreted by the European Court, whereby
the principles of fairness and equality form part of a preliminary contract of the kind that I
have indicated. Emery shows that such a contract may exist at common law against a statutory
background which might otherwise provide the exclusive remedy. I consider that it is now
clear in English law that in the public sector where competitive tenders are sought and
