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Clifford Chance

Clifford Chance


The Rules of Engagement: Private Sector Procurement and the Common Law

18 April 2012

Construction tender processes run by public bodies are usually subject to statutory procedures and requirements intended to promote transparency and competition. This has increasingly led to legal challenges from unsuccessful bidders seeking to challenge the propriety of award decisions. However, in common law countries, the legal  principles governing procurement in the private sector have, to date, been considerably less developed and investigated.

Inevitably, the growth in procurement challenges to regulated public sector tenders has also lead to developing interest in the legal duties implied into private procurements. An understanding of the extent of any such duties is clearly important in successfully navigating a world of increasingly sophisticated bid documentation, processes and tactics.

The attached client briefing sets out the legal relationship under common law principles before exploring potential areas of claims for participants to be aware of when drafting invitations to tender.

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