NEC3 shortform jobs tendered before Covid-19, are now being asked after letters of intent issued for us to allow amending clause 60.1.(12) to read ‘Contract Award’ in lieu of ‘Contractors Offer’ thus removing any allowance for change to the programme or any reimbursement from the Authority, is this legal because unless we accept their terms these contracts wont be awarded to us with the next in line being approached in lieu of retendering?
Contracting Authority is the Education Authority with works in Northern Ireland
Provided there is no breach of the Unfair Contract Terms Act (1977) then the Employer is entitled to include additional conditions in the ECSC. However your tender wasn’t based on this amended contract and you didn’t have the opportunity to price the risk therefore they do not have the right to accept your tender and award the contract. Effectively the additional condition is a counter offer which you have to decide whether to accept or not. Tough choice in the current climate where I’m sure you desperately need the work, but at what cost to your business are you willing to accept this risk?
If you choose not to accept it then you may have good reason to challenge the procurement process if for example it could be claimed that the amended contract changed the outcome of the procurement process or that all bidders were not treated equally.
So it’s not illegal, but it is sharp practice and almost unethical in the current climate where the Cabinet Office is urging UK Government to be lenient on it’s suppliers.