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Must the answers to Tender Clarification questions (pre-tender) be considered as part of the Contractual Documents once awarded?

+1 vote
1,189 views
Before submitting bids for a Tender Contractors generally are entitled to make inquiries about issues or data from the tender documents that seem unclear. The Employer normally answers these questions in writing to all Bidders. The reason for these Clarification questions is to clarify those issues that are not clear in order to permit Bidders to adjust their Bid as much as possible. The question is: Do these Answers given by the Employer form part of the Contract even though they are not specifically mentioned?
asked Jun 27, 2018 in Legal and Disputes by jpguillaume (140 points)  

1 Answer

+3 votes
The answer is 'No' they do not as there is an entire agreement clause in the contract (see clause 12.4 in NEC3 ECC).

However, if the contract is unclear - and AFTER other principles for the interpretation of contracts and those in the contract have been applied - if there is still ambiguity or inconsistency, the responses might well inform the interpretation.
answered Jun 27, 2018 by Jon Broome Panel Member (60,470 points)  
edited Jun 27, 2018 by Neil Earnshaw
Hello Jon, thanks for your answer, but this is only true in case of NEC3 ECC Contracts. What about Fidic and other Contract suites? What is the normal procedure? I would think these answers form part of the contract as they conditioned the bid, in fact any bid, not only the one of the awarded contractor.
I would be surprised if the other forms did not have entire agreement clauses, so the general principes above would still apply, but the specifics of that contract form would apply.
Maybe you didn't get my point, in the other contract forms, as far as I know there is no similar clause to this 12.4 from NEC3 ECC. Is there no existing jurisprudence on this issue of the Tender Clarifications. I mean, if the Employer clarifies something to the Bidders this should become automatically part of the Contract since it conditioned the Bid. At least I would think so.
From a practical point of view it is essential that any such matters make it to the final signed contract. As a Contractor I remember a situation where we made a few tender clarifications (for example working hours) that whilst part of our bid did not make inclusion within the final signed contract and we missed that fact. It then became very difficult to rely on them when the problem arose with regards working hours as what we had assumed was not part of the contract.
That is exactly the point where I wanted to get. According to your experience I must then assume that the simple fact of not mentioning these Clarifications and its answer into the Contract they are not valid and do not have to be considered, but in case this point of view is correct, then neither for the Employer favorable issues. Nevertheless, I repeat my personal opinion, I do think these should automatically form part of the contract once signed on behalf of former cited base, these answers in the end conditioned the final bid.
Unfortunately I don't think anything is automatic. Both Parties should be making sure it is clear what they are signing up to - which should include any qualification/clarifications that have been agreed. If I submit a tender as a Contractor and have excluded a Z clause (say refused to sign up to a deleted 60.1(12) for example) if I then sign a contract where it says 60.1(12) is deleted then I am not sure where you go from there. You should have made sure your qualification makes the final signed version.
JP Guillaume : you may think they "should" be, but that is not the legal perspective. As Glenn alludes to, good practice is that these clarifications are clarified in the contract that is entered so everyone is clear.
That is what I have been doing for the past week for one of my clients : having consulted with the supply chain and having an external legal review, tidying up the contract to (hopefully) avoid any ambiguities or inconsistencies in the final document
I agree with you Jon, these clarifications should indeed be reflected into the Contract in order to avoid any ambiguity. However, my question was made just to know whether there was any existing good practice or jurisprudence on this issue as the omission seemed to me a deceiving act by the Client or Employer.
In practice, answers to the tender inquiries shall be incorporated in the contract. In case of NEC 3, in can be included in Z Clauses or the addition/changes to the Conditions of the Contract. In FIDIC, you can add this on the Conditions of Particular Applications.