In public tender procedures the relationship between the parties concerned is governed by the standards of reasonableness and fairness. The parties should be guided by the justified interests of the other party. Tenderers may be required, therefore, to point out to the contracting party errors in the tender documents or errors made by the latter. But when are tenderers under such obligation?
Were errors in documents apparent to contractors?
To answer the question whether contractors are required to point out to a contracting party errors in the tender documents or errors made by that contracting party another question should be answered first. The question namely whether the error in the tender documents was reasonably apparent to the contractor.
To answer that question it is important whether the tenderer is a professional and experience tenderer but also whether the contracting party has been assisted by professional advisors and mentioned this in the tender documents. Tenderers may be expected to check the contents of the tender documents to some extent but not that they actually carry out an on-site inspection.
The tenderer/contractor must inform the contracting party about any consequences of possible errors that could reasonably be foreseen. The contracting party is and remains responsible for the accuracy of the data provided.
In Design & Construct contracts contracting party also liable for errors
Some tender procedures feature a Design & Construct contract. In that case the contracting party is responsible for deciding which services should be performed to carry out the assignment. The tenderer is responsible for the design of the work to be done.
Despite the contractor’s responsibility for the design of the work to be done under a Design & Construct contract, the contracting party remains responsible for the accuracy of the data provided. Such agreements are usually governed by the Uniform Administrative Conditions for Integrated Contracts 2005 (UAV-GC 2005). It also follows from the UAV-GC 2005 that contracting parties are responsible for the accuracy of the data provided.
This is evident from a decision of the Court of Appeal of Amsterdam of 10 September 2013 (ECLI: NL: GHAMS: 2013:2858). Please contact one of the lawyers of Slangen Advocaten if you would like to know more.
Fiona Sassen
sassen@slangen-advocaten.nl
7 January 2014
