Re-engineering the tender code for construction works

Abstract

The UK's NJCC Code of Procedure for Single Stage Selective Tendering (now withdrawn) and its successor, the CIB's Code of Practice for the Selection of Main Contractors are criticized in the light of decisions of the common law courts with regard to regulation of the tendering process. It is argued that a new ‘Tendering Code’ should be produced in the style and format of a contract document which reflects not only the statutory regulation imposed on public bodies, but common law decisions of the courts. The nature of this tendering contract is explained as a means of regulating the tendering process. Issues discussed are: dealing with errors and irregularities found in tenders; dealing with non-compliant tenders; dealing with tender withdrawal prior to its acceptance or rejection; making provisions as to time for submission of tenders and dealing with late tenders; making provision for submission of tender by fax or other electronic means; making provision for evaluation of tenders received; and imposing or negotiating reductions in price with tenderers prior to acceptance. The paper concludes that the common law obligations placed on the owner to treat all tenderers equally and fairly and to apply the tender conditions when evaluating tenders and awarding contracts seems to be good common sense and of commercial advantage, not only to the immediate parties concerned but also to the wider community.