200 contractual problems and their solutions by J. Roger Knowles

By J. Roger Knowles

Procurement -- Tenders and bidding -- layout -- Letters of motive -- Programme -- Delays and hold up research -- Extensions of time -- Liquidated/delay damages -- adaptations -- Loss and expense/additional price -- cost -- functional of entirety and defects -- Rights and treatments -- Adjudication

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After tenders have been submitted, selection is made employing an evaluation method which has not been revealed to the tenderers. Would the unsuccessful tenderers have any entitlement to compensation and on what basis? 1. There is a requirement under European law, embedded in the laws applicable in the UK, which applies to most public bodies and publicly funded organisations and provides for equal treatment of all tenderers. Where appointments are based upon the most economically advantageous bid, the contracting authority must specify which criteria from a specified list it will use to determine the most economically advantageous.

Somerfield argued that the letter headed ‘Subject to Contract’ contained all the terms of the Facilities Management Agreement and therefore a contract existed between the parties. Skanska was of the view that the purpose of the letter was limited to identifying the nature of the work to be performed and therefore constituted only a temporary arrangement and not the contract for providing services for a three-year period. The judge in the lower court, Mr Justice Ramsey, agreed with Skanska, and Somerfield appealed.

Would the unsuccessful tenderers have any entitlement to compensation and on what basis? 1. There is a requirement under European law, embedded in the laws applicable in the UK, which applies to most public bodies and publicly funded organisations and provides for equal treatment of all tenderers. Where appointments are based upon the most economically advantageous bid, the contracting authority must specify which criteria from a specified list it will use to determine the most economically advantageous.

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