Invitation to Tender in UK Law

I found great force in the submissions made by Mr. Toulson and agree with much of what he said. Indeed, for much of the hearing I was of opinion that the judge's decision, although fully in accord with the merits as I see them, could not be sustained in principle. But I am in the end persuaded that Mr. Toulson's argument proves too much.

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?"

It is because of the unexpected outcome that the LSC is now conducting the review to which we have referred. The fact that this challenge is to the impact of the timing of the introduction of the panel membership criteria, rather than to the criteria itself, distinguishes this case from Jobsin Co UK Plc (t/a Internet Recruitment Solutions) v Department of Health [2001] EWCA Civ 1241 on which Mr Lewis QC relied.

Taking the facts before us, it has similarities to a challenge by an individual firm employing experienced practitioners who are not panel members and who could not qualify in time. 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.

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). The Trading Agreement was of unlimited duration, terminable by either party on 90 days' notice.

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. In my judgment these conflicting arguments give rise to another serious issue to be tried.