Invitation to Tender in UK Law

But where, as here, tenders are solicited from selected parties all of them known to the invitor, and where a local authority's invitation prescribes a clear, orderly and familiar procedure (draft contract conditions available for inspection and plainly not open to negotiation, a prescribed common form of tender, the supply of envelopes designed to preserve the absolute anonymity of tenderers and clearly to identify the tender in question, and an absolute deadline) the invitee is in my judgment protected at least to this extent: if he submits a conforming tender before the deadline he is entitled, not as a matter of mere expectation but of contractual right, to be sure that his tender will after the deadline be opened and considered in conjunction with all other conforming tenders or at least that his tender will be considered if others are.

I readily accept that contracts are not to be lightly implied. Having examined what the parties said and did, the court must be able to conclude with confidence both that the parties intended to create contractual relations and that the agreement was to the effect contended for. It must also, in most cases, be able to answer the question posed by Mustill LJ in The Kapetan Markos N.L. (NO.2) [1987] 2 Ll. 321 at 331: "What was the mechanism for offer and acceptance?"

In Jobsin's case the relevant facts were known to both the bidder and the defendant at the time of the tender, but the bidder did not appreciate the legal significance of those facts. This is a public interest challenge concerned with the impact of this aspect of the procurement exercise on access to justice for those needing advice and representation in family law matters.

The Directive and the Regulations are concerned with the award of contracts by public authorities. Their objective is to open up public procurement to competition. To this end the award of contracts must comply with the principles of equal treatment, non-discrimination and transparency. Technical specifications must clearly set out the requirements of the authority so that tenderers will be aware of what they will be required to do under the contract for which they are tendering.

What seems to have been treated by the council as “predetermined criteria” was the breakdown of the criteria and compliance with specification into an assessment of the five method statements, each of which was given a different percentage mark, not (as might otherwise have been expected) equal marks. On the second point, it seems to be arguable that the expectation to be gained from the Invitation to Tender was that full marks would be given for meeting the five targets set in section 8.

I acknowledge at once the distinction, namely where obligations are founded in contract they depend upon the agreement made and the objective intention demonstrated by that agreement whereas the existence of a duty in tort may not have such a definitive datum point.

In 1998 CMP sent Ricoh an invitation to tender for the supply of devices to its clients. Mr Jones say that the main aim of the tender was to improve on the discount against the manufacturer's recommended retail price that Ricoh was prepared to offer to CMP's clients (which would of course benefit CMP through the 50% saving arrangement: para 3 above).