International Construction Law Review
EC PROCUREMENT LAW AND CHANGE DURING THE TENDER OR THE CONTRACT
MICHAEL BOWSHER
Barrister (England & Wales; Northern Ireland); FCIArb, Chartered Arbitrator
1. INTRODUCTION
The objective of the European Community procurement legislation1
has been to increase the transparency of the procedures by which public works contracts were let so that tenderers from one member state had a fair chance of winning a contract in another.
Despite the various revisions that have been made to the legislation over 30 years,2
it has continued to focus on formal issues such as the content of the invitation to tender and the timetable for the tender process. The legislation does not address directly the problems that arise when it is necessary to make a significant change to the project or the tender while the tender process is still ongoing. While such changes are a frequent consequence of the complexity of the construction process, they may also offer an opportunity for a disappointed would-be contractor to claim that it has suffered because the change has favoured another tenderer.
2. INTOLERANCE OF CHANGE IN THE TENDER PROCESS
The preambles to Directive 71/3053
stated that the coordination of member state legislation should be based on three principles: prohibition of technical specifications that have a discriminatory effect, adequate advertising of contracts and the fixing of objective criteria for participation. These goals are reflected in the substantive obligations imposed by the legislation.4
1 Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts. See Keating on Building Contracts
(7th ed.), para. 14–10. The legislation was originally confined to public works contracts.
2 See Keating on Building Contracts
, para. 14–08, for references to the current legislation.
3 Council Directive 71/305/EEC of 26 July 1971.
4 For the purposes of simplicity no distinction is made in this article between restricted and competitive negotiated procedures, except where express reference is made. Although there are substantial differences between these procedures the principles described here apply in a similar fashion to both. It is assumed that the prospect of anyone using an open tender procedure for a construction contract can be ignored. Likewise no particular distinction is made between the regime for public and utility contracts as the general principles being considered are applicable in similar fashion to both regimes.
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