In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
A failure to do just this has now led to a successful challenge to the Greater Glasgow Health Board in Johnson & Johnson v Greater Glasgow Health Board  CSOH 12.
The case concerned a mini-competition run under a framework. The Health Board invited tenders for orthopaedic ‘hip products’ and ‘knee products’, both as separate lots and as a combined lot. There were also two different pricing models for the separate lots. The invitation to submit mini-tenders purported to give the Health Board a free choice between the 3 options on the basis of which tenders were invited. The court considered that this was a breach of the obligation on the contracting authority to be transparent as to how tenders would be evaluated.
Even worse for the Health Board, the court decided that the 30-day challenge period ran from the time it communicated its decision to tenderers as to which of the options it had used to award the contract. It was only at that point that the suppliers became aware of the basis of the contract award.
The moral of the case is that if you are going to invite bidders to price different options on different lot combinations, you must set out in the tender documents how you will decide (objectively) between each of the options. You must set out how you will “compare the MEAOCOT”.
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