Construction is usually procured by formal competitive tendering and the question arises whether the tender process is regulated by law.

This paper considers two recent judgments of common law courts. In the first case the court held that no tender process contract existed. Tenderers were not here put to great expense and the words used in the tender conditions pointed against the existence of a contract. In the second case the existence of a tender process contract was conceded but the parties disputed its terms.

The court held that the terms of a tender contract are derived from the Request For Tenders and not from the inviting party’s internal procedural manuals. A duty of good faith and fair-dealing (conceded here) did not require the inviter to act judicially. The disappointed low bidder was not entitled to a hearing or to enter into debate as to the conduct of tender evaluation.