Cases - Gerard Martin Scott v Belfast Education & Library Board

Record details

Name

Gerard Martin Scott v Belfast Education & Library Board

Date

[2007]

Citation

NICh 4

Keywords

Tendering and procurement

Summary

In a preliminary hearing, clarification was sought as to whether tender documents give rise to an implied contractual term of fairness and good faith. The judge, in the Northern Ireland Chancery Division, declared himself 'satisfied that an implied contract can arise from the submission of a tender. It may arise by inference from the scheme of the tendering process and the presumed intention of the parties'. This could be so even though it was a public sector contract below the threshold for the application of the Public Procurement Rules.

The judge held that it would be an implied term that the employer will act fairly and in good faith, in the following respects:

1. 'Fairness applies to the nature and application of the specified procedures in a particular contract.
2. Fairness applies to the assessment of the tenders according to the stated criteria.
3. Fairness applies to the evaluation of the tenders in a uniform manner and as intended by the tender documents.'

The second question decided by the judge was that a mistake in the tender documents could affect different tenderers unequally and could thus constitute breach of the duty of fairness. An ambiguity could also affect the uniformity of evaluation.