Excluded
Contract
Q1. Can any action be brought by a
tenderer for breach of internal guidelines or policies
by employers seeking tenders?
A1. Many contracting authorities will
have internal guidelines, procedures or policies which
set out how they will procure construction work. If
they are not followed, a question arises as to whether
a tenderer has any remedy for a breach of those guidelines,
procedures or policies.
In J&A Developments – v – Edina Manufacturing Limited
[2006] NIQB 85 the tender documents stated that the
tender would be assessed in accordance with the “NJCC
Code of Practice for Single Stage Selective Tendering”
and the Court found that the procedure was not followed
by the employer. The Court held that compliance with
the Code of Practice was an express term of the tendering
contract, and as such, any breach would give rise to
a claim for damages.
It is submitted that the same conclusion would be found
in a situation for any internal guideline or policy
which the tender documents stated would be followed.
The more difficult question is whether or not the contractor
has any remedy against a contracting authority who breaches
its own internal policy or guidelines which, as a matter
of fact, are not incorporated into the tender document.
There has been no reported case in the UK Courts considering
this issue.
It is submitted that the only remedy available to a
tenderer in such a situation would be an action for
judicial review of the contracting authority’s decision.
Succeeding with such an application will be difficult
for a contractor as it would be necessary to show that
the contracting authority either acted ultra vires or
in a manner that was obviously unreasonable or irrational,
within the meaning of the Wednesbury test (Associated
Provincial Picture Houses Ltd v Wednesbury Corporation
[1947] EWCA Civ 1). |
