NEC ECC: How to contractually Include Tender Qualifications and TQ responses

In relation to tender submissions, and with special consideration of Clauses 12.3 and 12.4. Can a submission with a covering letter, submitted with the tender documentation, which includes qualifications, be accepted without acceptance of the qualifications? Does the letter need to be referenced in the CDP2 to be effective as part of the Entire Agreement, if so which part of the Contract Data would you reference it? Along the same lines, do replies to technical queries become automatically included/implied as Works Information, or should they also be referenced in the Contract Data? Again would it be best to include the TQ responses within the covering letter and include in the CD?

I don’t think there are any hard and fast rules here but what needs to be clear in the signed contract is what the parties have signed up to. These clarifications do not need to be referenced in CD2 necessarily, but do need to be in the signed contract somewhere. Much better would be to amend the contract documents to reflect what the Parties have agreed to i.e. change Works Information to reflect what TQ has agreed. If there is a qualification to refuse to sign up to an amended clause - amend the clause rather than leave it in with a statement the amendment is to be ignored.

What ever you end up with both Parties need to be very clear on what their obligations and liabilities are.

the acceptance, or otherwise, of qualifications will depend upon the instructions for tender documents. If qualifications are not allowable or are not acceptable then you should ask the tenderer if they are prepared to withdraw their qualification but please check that you are complying with procurement regulations.

if the qualifications are acceptable then one way to capture the agreement would be to use a simple Form of Agreement that sets out which documents form the contract.

My suggestion would be to create a working copy of the contract where the qualifications and TQs are embedded in to the relevant parts of the contract.

Thanks Glenn, however going back a step (and speaking as a contractor) could a tender submission (offer) be accepted, thus forming a contract prior to the parties having a signed contract in place. If this is possible could the entire agreement clause then prevent introduction of any qualifications which may have been included within the tender letter. Or is it agreed that tender offers are not enforceable until a signed agreement is in place and both parties then assumingly intent on being legally bound

I will have to let the lawyers answer the last part of your question. Practically it should be the latter, yet obviously there are situations (And all too common) where a Contractor starts work so legally will by conduct have entered into a contract but under what terms as their offer is basically based on caveats which have not been signed up to. This can lead to a mess - and the obvious answer is both Parties should not allow this to happen in the first place.

Courts will consider the communications between the parties, either words or conduct, and whether that leads to a conclusion that the parties intended to create a legal relationship and had agreed all the terms that they regarded as essential. ITT may say that no contract until a signed agreement in place. See recent case of Anchor 2020 v Midas where contractor signed a contract and then claimed that no binding contract existed. As Glenn confirms, no signed contract leads to a mess as Anchor illustrates. Therefore Court will look at tender qualifications as part of the communications between the parties. See also recent case of Clancy v E.ON where nd post tender meeting notes and subbie’s tender letter were included, Both of these referred to qualifications on adverse ground conditions. When such conditions were encountered, E.ON claimed (I) conds of contract included clause that subbie not entitled to any time extension or additional payment due to failure to discover or foresee any risk or contingency including the existence of any adverse physical condition and (ii) a precedence clause meant conds of contract trumped the inclusion of the meeting notes and letter. Court disagreed on basis that “Sub-Contract Works” did not included the qualifications and precedence clause did not apply. Therefore I advise parties to be careful about documents included.

Thanks Chris/Glenn - had a quick read of these cases, they are very interesting. Both I believe are JCT, not sure if the findings would be any different if NEC, probably not as it is more English Law than contract specific. It worries me reading the responses as many tenders these days stipulate ‘no qualifications or risk being disqualified’ but without express provision tenderers risk having to settle for the issued contract as the entire agreement. Subsequently once an unqualified bid is submitted I assume it can be accepted before any post tender negotiation around conditions can take place and thus if you withdraw you risk breach of contract.