An analysis of international case law for process contract in public

Abstract

Traditionally, an 'invitation to tender' is no more than an invitation to treat which means that it is not an offer to make a contract with any person or organization which might act on the invitation. In other words, the owner is free to accept or reject any offer and no legal relationship is entered between tender parties during the tender pre-award period. However, developments in commonwealth jurisdiction since the 1980s have significantly changed the principle of offer and acceptance. The changes suggest that the traditional view of invitation to tender should not be regarded with complacency. This paper describes the major international court cases relating to tendering which would have significant impacts on the day-to-day running of public tendering processes. The aim of these legal case studies is to evaluate the legal implications when public tenders are invited. The analysis of ten selected court cases since the 1980s shows that process contract has become widely accepted as the legal basis of tendering. Furthermore, decisions by courts have also highlighted the principles of fairness and integrity within the tendering system, and these principles must be observed by all parties to the tendering system. © 2014 Springer-Verlag Berlin Heidelberg.