The engineer must have his client’s authority to accept a tender or issue a letter of intent (p. 399).
The gist of this long note is that the essential step at the culmination of negotiations for a contract is for the parties to make up their minds and record clearly what they intend.
For execution of a formal agreement see p. 21, and for matters which may affect the validity of the contract, p. 5 (e).
10. “NOT BOUND TO ACCEPT…ANY TENDER”. Even in the absence of a specific statement a person inviting tenders (or competition drawings) is not obliged to accept the lowest of any tender or to pay anything even though the parties tendering have been put to expense. The invitor may, however, be liable, in the case of a competition, for preventing the judges from considering an entry, or to pay for a tender or entry if he makes use of it for any purpose:
Plans submitted on approval were not used for the works, but they were used to show intended purchasers how the site land could be developed. 若已提交审批的图纸未用于该项工作，而是用于展示给潜在买家该场地可能的用途。
Held: that they must be paid for. 招标人以上做法需要支付相关费用。
Cases are not unknown where it is suspected that although for various reasons it was thought wise to invite open tenders for a job, the contractor was, in fact, chosen in advance, or tenders may be invited in order to check the prices of a favoured contractor with whom negotiations have already taken place. Where that can be proved, the other tenderers will be entitled to damages.
In addition, if the tender is accepted and the contract is then broken by the employer refusing to allow the contractor to carry it out, instead of claiming his loss of profit as damages the contractor may elect to claim for the wasted expenditure incurred in relation to the contract, including expenditure on tendering before the contract was made (but he is not entitled to both profit and expenses). v
11. TENDER QUALIFICATIONS. From a contractor’s point of view the perfect tender qualification is a wolf in sheep’s clothing, in the sense of giving the contractor full protection while looking as innocuous as possible. Unfortunately, because of bad drafting combined with the narrow interpretation which the courts tend to place on these qualifications, it is often the opposite result which is achieved:
A contractor agreed to build a number of houses for a lump sum, to be completed in eight months. Attached to his tender was a letter which said that his tender was subject to adequate supplies of labour being available as and when required. This letter was not referred to in the agreement eventually sealed.
Held: the letter was not a contract document, and even if it had been it meant only that the contractor would be entitled to an extension of time for any difficulty in getting labour, not that he was to be entitled to extra payment. w
There are therefore two problems—to ensure both that the qualification will be accepted by the courts as part of the contract, and that the wording of the qualification is sufficient to give the contractor the protection on which he is relying in pricing the works.
There is a presumption that if the parties enter into a written contract, the writing is intended to set out all the terms of their agreement and to supersede any terms discussed or agreed on during negotiations. This presumption has hardened into a rule which may be applied even though it defeats the parties’ intention, as in the case last cited.
There are exceptions to this rule (p. 58); however, the wise course is for any tender qualification to be put in writing and added to the list of tender documents in clause 2 of the agreement and 1 (1) (e) of the Conditions. x