Controversial aspects of Commonwealth Construction and Engineering Procurement Law
This research exposes to examination and understanding the law governing procurement of construction and engineering works and services. The thesis captures both development of common law and judicial determination of statutory law. It takes the form of published journal articles and conference papers which discuss legal issues relevant to construction procurement and conclude with recommendations for clients and construction project managers on how to better manage the procurement process. The work reveals, inter alia, the extent to which contract law regulates the tendering phase of construction procurement and places the client under an obligation to the tenderer characterised as 'fair dealing' or 'good faith'. Chapter 1 is of an introductory nature. Chapter 2 sets the crime of manslaughter arising out of construction site fatality as a procurement issue. The author notes the UK government's intention to introduce the new offences of reckless killing, killing by gross carelessness and corporate killing. Chapter 3 discusses cases where disaffected parties to the tendering process have made private law challenges of that process seeking compensation for the other party's alleged irregularities. The client is generally obliged in law to treat all tenderers equally and fairly and to refrain from evaluating tenders and awarding contracts other than in accordance with the rules set down in the tender conditions. Chapter 4 addresses the question: do traditional tendering processes encourage, or merely permit, contractor innovation? Several tender codes are reviewed to establish whether these codes provide for, or encourage, innovative proposals from competing bidders. Chapter 5 provides updating case material for the period 1999-2000 which helps to underpin the conclusions and recommendations set out in Chapter 12. Chapter 6 is a criticism of the NJCC's Code of Procedure for Single Stage Selective Tendering and the CIB's Code of Practice for the Selection of Main Contractors. Suggestions are made as to what a new tender code might include in the light of selected decisions of the common law courts. It is argued that a set of 'standard' tender rules should become the terms of a 'tender contract'. Those rules would properly reflect decisions of the courts and would be accepted by all parties to the process as a tender contract document. Chapter 7 discusses how the common law protects the integrity of construction procurement by imposed or assumed contractual obligations. Procurement of subcontract works is also considered. The author concludes that the tendering contract operates between main contractor and subcontractor as it does between owner/ developer and main contractor, and that the 'two contract' analysis provides the best basis for upholding integrity of the bidding process. Chapter 8 sets out advice for quantity surveyors and project managers derived from the decisions of the common law courts. The author argues that practice should be shaped to reflect the obligations assumed by parties in common law so as to avoid claims from aggrieved bidders. In Chapter 9 the focus shifts from private to public law. A Scottish court denied a remedy to the unsuccessful bidder on the grounds that the contract award process was unfair, unreasonable and in breach of natural justice. The author argues that a successful case might have been made out in private law and concludes with recommendations as to how the tender process might be better conducted. Chapter 10 deals with public procurement under the rules of the European Union (EU), noting a particularly important decision by the European Court of Justice that contracting authorities are obliged to treat all tenderers equally and fairly, a duty that parallels that found in common law and discussed in Chapters 2 through 8. Chapter 10 concludes with an article on Rv Portsmouth City Council (1996), reviewing both decisions at first instance and in the English Court of Appeal. Chapter 11 considers the risks of developers and contractors by examining the effectiveness of 'controls' imposed by common law when the usual statutory controls are temporarily withdrawn. It can be seen that the common law has not evolved to protect the interests of neighbours and local residents from the perils and hazards of property development which result in environmental degradation. This chapter concludes with recommendations as to how developer and constructors might minimise their impact on adjacent property owners. Chapter 12 presents a summary of the conclusions drawn from the completed research project and the author's recommendations for further research within the procurement topic.