Thesis-2001-Craig.pdf (27.32 MB)
Controversial aspects of Commonwealth Construction and Engineering Procurement Law
thesis
posted on 2010-12-07, 09:16 authored by Ronald W. CraigThis research exposes to examination and understanding the law governing procurement of
construction and engineering works and services. The thesis captures both development of
common law and judicial determination of statutory law. It takes the form of published journal
articles and conference papers which discuss legal issues relevant to construction procurement
and conclude with recommendations for clients and construction project managers on how to better
manage the procurement process. The work reveals, inter alia, the extent to which contract law
regulates the tendering phase of construction procurement and places the client under an
obligation to the tenderer characterised as 'fair dealing' or 'good faith'.
Chapter 1 is of an introductory nature. Chapter 2 sets the crime of manslaughter arising out of
construction site fatality as a procurement issue. The author notes the UK government's intention
to introduce the new offences of reckless killing, killing by gross carelessness and corporate killing.
Chapter 3 discusses cases where disaffected parties to the tendering process have made private
law challenges of that process seeking compensation for the other party's alleged irregularities.
The client is generally obliged in law to treat all tenderers equally and fairly and to refrain from
evaluating tenders and awarding contracts other than in accordance with the rules set down in the
tender conditions. Chapter 4 addresses the question: do traditional tendering processes
encourage, or merely permit, contractor innovation? Several tender codes are reviewed to
establish whether these codes provide for, or encourage, innovative proposals from competing
bidders. Chapter 5 provides updating case material for the period 1999-2000 which helps to
underpin the conclusions and recommendations set out in Chapter 12.
Chapter 6 is a criticism of the NJCC's Code of Procedure for Single Stage Selective Tendering and
the CIB's Code of Practice for the Selection of Main Contractors. Suggestions are made as to what
a new tender code might include in the light of selected decisions of the common law courts. It is
argued that a set of 'standard' tender rules should become the terms of a 'tender contract'. Those
rules would properly reflect decisions of the courts and would be accepted by all parties to the
process as a tender contract document. Chapter 7 discusses how the common law protects the
integrity of construction procurement by imposed or assumed contractual obligations. Procurement
of subcontract works is also considered. The author concludes that the tendering contract operates
between main contractor and subcontractor as it does between owner/ developer and main contractor, and that the 'two contract' analysis provides the best basis for upholding integrity of the
bidding process. Chapter 8 sets out advice for quantity surveyors and project managers derived
from the decisions of the common law courts. The author argues that practice should be shaped to
reflect the obligations assumed by parties in common law so as to avoid claims from aggrieved
bidders.
In Chapter 9 the focus shifts from private to public law. A Scottish court denied a remedy to the
unsuccessful bidder on the grounds that the contract award process was unfair, unreasonable and
in breach of natural justice. The author argues that a successful case might have been made out in
private law and concludes with recommendations as to how the tender process might be better
conducted. Chapter 10 deals with public procurement under the rules of the European Union (EU),
noting a particularly important decision by the European Court of Justice that contracting authorities
are obliged to treat all tenderers equally and fairly, a duty that parallels that found in common law
and discussed in Chapters 2 through 8. Chapter 10 concludes with an article on Rv Portsmouth
City Council (1996), reviewing both decisions at first instance and in the English Court of Appeal.
Chapter 11 considers the risks of developers and contractors by examining the effectiveness of
'controls' imposed by common law when the usual statutory controls are temporarily withdrawn. It
can be seen that the common law has not evolved to protect the interests of neighbours and local
residents from the perils and hazards of property development which result in environmental
degradation. This chapter concludes with recommendations as to how developer and constructors
might minimise their impact on adjacent property owners. Chapter 12 presents a summary of the
conclusions drawn from the completed research project and the author's recommendations for
further research within the procurement topic.
History
School
- Architecture, Building and Civil Engineering
Publisher
© R.W. CraigPublication date
2000Notes
A Doctoral Thesis. Submitted in partial fulfillment of the requirements for the award of Doctor of Philosophy of Loughborough University.EThOS Persistent ID
uk.bl.ethos.394714Language
- en