This paper is the winner of the 2008 Society of Construction Law Hong Kong essay prize. A presentation based on the paper was given to members of The Society of Construction Law Hong Kong
in Hong Kong on 13th January 2009.
Paper Summary: Submitting your tender is a rite of passage for all companies in the construction industry. This paper considers the etiquette to be followed once the tender process begins. The budding relationship between the procuring party and those bidding for success is a contractual one. But what are the terms of those contracts? What is the nature and extent of the procuring party's duty (or implied duty) to act fairly towards those who tender their affections?
Two decisions are put into context - China Harbour and Double N Contractors. The two cases suggest that in jurisdictions based on common law principles public authorities may award projects according to their own (i.e. the public's) best commercial interests, without being 'hobbled by quasi-judicial procedural rules'. But, with this flexibility comes a duty to exercise a high degree of transparency and fair dealing. With a wave of major infrastructure projects breaking across Hong Kong's otherwise calm waters, those responsible for putting projects out to tender should be taking notice.