Conclusiones parciales del capítulo

Tendering cases have been provided with their own section because they seem to pose quite a distinct problem. In most tendering cases there is quite a significant investment in the preparation of the tender documents and in contrast to simple negotiation cases there is an expectation that the tenders will be considered if they have complied with the formal procedures.302 _{Tendering cases reappear in Chapter} 4 but there the discussion centres on mistakes in the tender documents which is

301 _{Note that later ‘protection of the statutory provisions’ will have different connotations.}

302 _{See below the cases of BGH NJW 1993, 520 (Oolitic Stone Case) for Germany and Blackpool and}

94 linked to the decisions here in terms of the binding nature of tenders that have been submitted.303

To set the scene, the central question in the cases is whether entering into the tendering process creates any obligations on the parties or whether the party that has called for tenders is free to either dismiss or not even consider tenders.

The German approach

In the Oolitic Stones case304 _{the plaintiff was invited to submit a tender for the}

delivery of stones that was limited to 6 tenderers. Three tenderers responded. The first was the plaintiff, who made an offer according to the specifications of DM 237,430.65. The second was Messer who submitted a tender that did not

correspond to the type of stone requested in the tender with an expert’s report on the suitability of the stones for the project. The final tender was incomplete. The contract was awarded to Messer and the plaintiff argued that the defendant had not complied with the terms and conditions of the tender, and that Messrs should not have been considered. The court agreed and awarded the claimant the positive interest.305 _{In the more recent Hospital Sale case}306 _{the Court of Appeal in Munich} (OLG) explained that in tendering cases a trust relationship is created which means that (a) there is an expectation that a party’s tender will be considered and (b) that

303 _{See Ch. 4.9}

304_{BGH NJW 1993, 520 (Oolitic Stone Case) .}

305 _{The decision was approved in the later case BGHZ 49, 77 – although it failed on a different point}

(lapse of time).

95 the parties will be informed if circumstances of the tender change during the

process. Though the BGH reversed the decision of the OLG on the ground that the decision not to use the tenderer had already been made before the circumstances had changed, they confirmed that the tender process can lead to a trust

relationship.

In conclusion, the German approach is that if the party is able to show that they would definitely have been awarded the contract had the correct procedures been followed then they will be compensated in line with the positive interest.307 _The inference thereby being that they are no longer protecting the reasonable reliance on pre-contractual statements but that they are in fact protecting the expectation that the pre-contractual statement created. It was shown above that one of the reasons that the courts would not hold that a contract exists (or award the positive interest) is that culpa in contrahendo is not aimed at creating a duty to contract –

Kontrahierungszwang – but will protect the reliance. The rationale would be that had the party wanted to sufficiently protect their expectation interest then they should have entered into the contract. This is further supported by the approach in the tender cases on the basis that there is no more the party could have done to ensure that a contract would be formed i.e. they correctly submitted the tender that should have won. The second conclusion is that the pre-contractual duties arise from a trust relationship between the parties.

307 _{For an explanation of the positive and negative interest see Mehren, International Encyclopedia}

96 This conclusion is interesting because it shows that the freedom of contract (here specifically the freedom not to be bound by a contract) is balanced against the trust that is created by entering the tendering process. If the expectations that the invitor creates (which it seems is ‘the trust’) are not met then the court will find blameworthy behaviour. We see a similar approach in the English cases but based on other values.

The English Approach

The main English case in this area is Blackpool and Flyde Aero Club Ltd v Blackpool Borough Council308 _{where the tenders were supposed to be received by 12 o’clock.}

The plaintiff placed the tender documents in the letter box at 11 o’clock but the letter box was not cleared by the council staff at 12 o’clock and as a consequence the tender was marked as having been received late. The tender was therefore never considered. Lord Bingham held that the council were in breach of a collateral contract. The contract was to consider the tender application and the defendants were in breach of that contract.309 _{The result would have been the same in} Germany. However, the English courts ensured that this judgment was limited to the facts of this case (mainly on the grounds that there were few tenderers and the fact that the procedure had been made clear by the invitor). Lord Bingham held […]

where, tenders are solicited from selected parties all of them known to the invitor,

308_{Blackpool and Flyde Aero Club v Blackpool BC [1990] 1 WLR 1195 (CA).}

309 _{‘[…], counsel for the club was in my view right to contend for no more than a contractual duty to}

consider. I think it plain that the council’s invitation to tender was, to this limited extent, an offer, and the club’s submission of a timely and confirming tender an acceptance.’ […].

97

and where a local authority’s invitation prescribes a clear, orderly and familiar procedure […] 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[…].’

The English approach does not seem to go quite as far as the German in that the German courts were willing to interfere with the decision making process so long as the expectation had arisen on the basis of trust between the parties. The English courts balance the freedom of contract (just as the German courts) against the other party’s expectations but not from the trust relationship but from a contractual right.