Tenders - calling

Page contents:

• Competitive tendering
• Information for tenderers
• Checklist of inclusions in tender documents
• Contract type
• Notice to tenderers – sample clauses
• Conditions of tendering – sample clauses
• Methods for obtaining tenders
• Tender period
• Number of tenderers
• Pre-tender conference
• Clarification of documents

Competitive tendering

The purpose of competitive tendering is for the owner to obtain the best possible offer to carry out the proposed building works from a tenderer in competition with a number of other tenderers.

Responding to competitive tendering is a time-consuming activity that has an overall impact on costs in the building industry, ultimately passed on to owners as a group. It should therefore be carried out fairly and reasonably by both owners and tenderers.

Each building project benefits from fair and reasonable tender procedures. The method of tendering should reflect the scope and scale of the building works, as well as being consistent with the following principles:

• the client should have a firm commitment to proceed with the work if the result of the tender is consistent with its pre-tender investigations, in particular the pre-tender cost estimate
• tenderers should only submit tenders if they intend the tender to be successful
• conditions of tendering must be the same for all tenderers and should clearly and precisely define the client's requirements
• tenderers must not engage in collusion, compensation fees, secret commissions, or other improper arrangements which detract from true competition

While it is important for the architect to ascertain the client's requirements and act on instructions, it is also the architect's role to inform the client of appropriate tendering procedures for the particular project.

Relevant issues are the number of tenderers, whether they will be invited or selected by prequalification, or for small or simple projects, whether to negotiate a price with a preferred contractor rather than calling tenders (see Negotiated contracts).

The architect must have the client's authority as the agent of the client to call tenders and should also ensure that tenderers understand that they are tendering to the client through the architect, not to the architect.

Tenders for government work

Government departments and agencies often have their own codes of tendering procedures and conduct to be followed by private architects commissioned to call tenders or to document work for calling of tenders for public works.

As in all areas of architectural practice, care must be taken in advising clients of tender procedures, providing information to tenderers, calling tenders and assessing and recommending tenders, to ensure that the process is fair and transparent.

See also Anti-competitive conduct and bid rigging

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Information for tenderers

Following is a list of documents that should be provided to tenderers in the order in which these documents would normally be arranged. The building contract may include requirements for the 'order of precedence of documents'. If so, it would be advisable to arrange the tender documents to reflect this requirement.

Notice to tenderers

The notice to tenderers provides the information that tenderers require to prepare and lodge a tender.

Conditions of tendering

This provides details about the information that should accompany the tender, the details for lodging tenders and the matters that will be taken into account when considering tenders. The Conditions of Tendering will generally protect the client so as to ensure that the client is not bound by the tender, but instead binds the tenderer if the client decides to move forward and select a tenderer.

General conditions of contract

Where a standard-form building contract is proposed, a copy of the building contract does not usually need to be included with the tender documents. It is sufficient to nominate the contract that will be used and advise the tenderers how to obtain or view a copy of the contract.

Contract schedules

The information contained in the schedules is critical to the tenderer and the tender documents must include a copy of all the schedules or appendices completed except for items to be submitted by tenderers.

Tender form

It is advisable to provide tenderers with a standard tender form in order to ensure that the tender is complete and that all the information necessary to review the tender is provided.

Schedules of monetary sums

Where tenderers are required to include monetary sums, provisional sums (including specialist consultants), prime-cost sums or provisional allowances in the tender, these must be stated in the tender documents. Some building contracts require such sums to be included in the schedules within the contract. Where this is the case a separate schedule is not required.

Tender schedules

Includes all schedules that are to be completed and submitted with the tender. Such schedules could include current commitments, experience of the tenderer (including financial capacity), rates, work health and safety queries,

See 'Specification preliminaries' under Specification writing.

Technical specification

The main specification and any separate technical specifications for the project prepared by specialist consultants must be included.

Technical schedules

These include doors, hardware, windows, sanitary fittings, electrical fittings, furniture and so on.

Drawings

The drawings for the project must be included, with proper reference to their issue numbers, in numerical order, including all specialist consultants’ drawings.

Bills of quantities (if applicable)

Where applicable, bills of quantities should also be included, together with clear direction regarding pricing (if required) and the status of bills under the contract.

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Checklist of inclusions in tender documents

The following checklist sets out the information that should be made available to tenderers:

• name and address of client (same as on tender documents)
• scope of work clearly defined (particularly where several stages of work are shown)
• description and location of site
• name and address of the architect who prepared the drawings and specification
• identification of drawings together with any other documents additional to those provided in the printed form
• the order of precedence of documents
• name and address of the architect who will administer the contract
• timeframe for possession of the site
• restrictions on site access (alterations and additions, security, special times, width of access roads or drives, surface, etc)
• identification of contract type
• any special conditions to the contract – if special conditions are to apply they must be included in the tender documents
• any alternative clauses – some standard contracts provide alternative clauses for matters such as insurance, and tenderers must be advised which alternatives will apply
• details of security – most standard contracts also provide alternative security (eg retention or bank guarantee) and tenderers should be advised of any particular client requirements
• details of insurances required and which party is to take them out – before calling tenders the architect and client should be very clear about the type and scope of insurances to be taken out and by whom; the client's attention should be drawn to any insurances to be taken out by the owner, and details must be included in the tender documents, usually by indicating how the contract schedule items will be completed
• lodgement of tenders
• closing date and time
• location (eg architect's or client's office)
• acceptability of electoronic mail or facsimile tenders
• opening procedures
• number of signed copies of the tender required
• procedure for dealing with alternative methods, products and/or suppliers
• procedure for dealing with qualifications to the tender
• procedure for dealing with queries during the tender period – if tenderers submit queries during the tender period, replies in the form of tender addenda must be sent in writing to all tenderers, who should be instructed to confirm in their tenders that their tenders take account of such information
• arrangement for site inspection by tenderers
• arrangements for inspection of associated information such as models, photographs, drawings of existing buildings etc
• arrangements for return of tender documents, including the requirement for a deposit, if any
• acceptance of tender
• procedures for late tenders
• will not be accepted
• will be accepted under certain conditions
• procedures for accepting tenders, eg that the contract comes into existence on written notice of acceptance, or, only on execution of the contract
• basis of rejection of tenders for non-conformance with conditions of tendering, or, that non-conforming tenders may be considered if a conforming tender is also submitted
• client to reserve the right to not accept the lowest, or any, tender and to seek confirmation of price from tenderers
• validity period of tenders detail of site encumbrances (easements etc) and site conditions
• contract time (if fixed by client, advise if to be nominated by tenderers) – if the owner does not indicate a specific date or an allowable time for completion of the works, then tenderers should be requested to submit a date or period for completion at the time of their tender as part of their submission
• schedule of provisional sums for which 'particular persons' are proposed as subcontractors with full details
• schedule of prime-cost sums for supply arrangements for which 'particular persons' are proposed, with full details
• any artists or special tradespeople to be separate contractors
• schedule of consultants with details of responsible personnel
• special requirements and/or restrictions affecting the execution of the works (restricted work hours, special dust control etc)
• number of tenders invited
• authority approvals – identification of those for which each party is responsible
• information regarding documents lodged with local authorities, fees paid (by client), deposits (by client), if any
• when documents are expected to be cleared by authorities (if known)
• copies of authorities' approvals already obtained, including any conditions of approval
• any additional documents – the architect may make available other documents for examination by tenderers at the architect's office, and these could include detailed drawings not issued to tenderers and consultants' drawings of work covered by proposed provisional sums.

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Contract type

Tenderers should be informed of the type of contract intended to be used. The Institute recommends (as does AS 4120:1994 Code of Tendering) that only industry-standard contracts be used. The tender documents must indicate how the project-specific contract schedule items will be completed. Some major government and private clients now insist on using their own tender and contract forms – the architect should verify this at the time of engagement, and become familiar with their requirements.

The standard-contract forms provide blank spaces (schedules) for completion prior to the signing of the contract. The items to be included in these spaces and any special conditions required by the owner may have a considerable bearing on the tenderer's approach to the offer and the contract price tendered. It is therefore essential that all of the appropriate details are provided at the time of tendering in order to avoid problems later on.

The owner may have particular expectations regarding time for completion, security etc, and if these are stated to the tenderers, they may be used to form the basis of negotiation.

The manner in which all blank items must be filled should be indicated, even if 'nil' or 'not applicable' is stated. Where items are left to tenderers, they should be requested to submit amounts, rates etc, as part of their tender.

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Notice to tenderers – sample clauses

The following clauses are provided as a guide to the clauses that a tenderer would require to prepare and submit a conforming tender. They envisage a conventional building project with an architect administering the contract, and may or may not be suited to the circumstances of a particular project. They set out the information that a tenderer will require to prepare a tender.

NT.01 Person to contact

The person to contact during the tender period is [***insert name***] who may be contacted by telephone on [***insert phone number***]. All enquiries must be confirmed by the tenderer in writing.

NT.02 Form of contract

The form of building contract for the work is [***insert contract type***] . These tender documents do not include a copy of the contract. Tenderers must make their own arrangements to obtain a copy of the contract. The schedules/annexure/appendix to the contract is/are included in these tender documents.

NT.03 Tender closing

Tenders will close at 2pm on the [***insert day***] of [***insert month***].

(You should also refer to any agreements between the Institute and MBA or HIA in your state before setting the tender period and closing date and time.)

OR

The Request for Tender (RFT) documents are comprised of the following documents (and their attachments) and in the case of any ambiguity, discrepancy or inconsistency; the documents will apply in the order of precedence as listed below:

Schedule A – Conditions of Tender

Schedule B – Tender Schedules (including the Tender Form and Schedules and Tenderer’s Declaration)

Schedule C – Conditions of Contract

Schedule D – Specification

Schedule A will not become part of the Contract.

NT.04 Discrepancies, errors and omissions

If a tenderer finds a discrepancy, error or omission in the tender documents, the tenderer must notify the architect before the date and time for closing of tenders.

NT.05 Assessment of tenders and tenderers

The owner's objective in evaluating the tender is to obtain the best value for money and not necessarily the lowest tendered price. The owner will not be bound to accept the lowest or any tender. Regardless of price and formality, the following factors may be taken into consideration in the assessment of tenders and tenderers. Delete or add to this list to suit each project:

• conformity with the tender documents and addenda
• Ability to execute the works
• Technical, managerial and physical resources
• Current commitments
• Record of performance especially in relation to time and quality of work
• Ability to perform within the contract time
• Financial capacity
• Price
• Value for money

During the assessment of tenders it may be necessary to obtain additional information from tenderers.

NT.06 Site visit

Tenderers may obtain permission to visit the site by contacting [***insert name***].

[or alternatively]

Tenderers must attend a site visit to be held at [***insert time and date***].

[Some clients/owners may require that separate meetings are held with each tenderer. Caution should be exercised to ensure that each tenderer is provided with the same information.]

NT.07 Addenda

Addenda to the tender documents may be issued prior to the closing of tenders for the purpose of clarifying the documents in response to a query from a tenderer, or to reflect modifications in the design or to the contract terms. Clarification of the tender documents will be made only by formal addendum issued by the architect not less than [***insert number***] days before the closing of tenders. The owner will not be responsible for any other interpretation of the documents contrary to the addendum. All addendum will be issued to each organisation tendering for the project.

Tenderers must acknowledge receipt of all addenda with the tender. All addenda that are issued will become part of the tender documents, and the information they contain will ultimately become incorporated in the contract documents.

Please note that the Code of Tendering states that a 'sufficient' amount of time must be given for all tenderers to consider the addendum before tenders closes.

NT.08 Validity period

Tenders shall remain valid for [***insert number***] days after the closing date.

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Conditions of tendering – sample clauses

The following clauses are provided as a guide to the clauses for the conditions of tendering. They envisage a conventional building project with an architect administering the contract, and may or may not be suited to the circumstances of a particular project. They provide advice on the details to be provided with the tender and establish the basis upon which the tender will be considered.

CT.01 Nature of contract

Tenders must be on a lump-sum basis or other form as stated in the tender documents and be inclusive of GST, or specifically stated otherwise.

CT.02 Tender documents

The tender documents comprise:

• Notice to tenderers
• Conditions of tendering
• Building contract (by reference)
• Schedules/annexure/appendix to the selected building contract [delete as appropriate]
• Form of tender pro forma
• Schedules of monetary allowances to be incorporated in the contract
• Schedule of prices [if applicable]
• Schedule of rates [if applicable]
• Specification preliminaries
• Specification
• Tender drawings
• Additional information (including bills of quantities if applicable)

Site information (under ABIC contracts the owner must provide to the contractor 'all information regarding the site and the physical conditions on or underlying the site at least five working days before the closing of tenders.' That site information is to be described in Schedule 4, and consists of 'any reports, surveys, test results, plans, specifications, computations or other information such as foundations data, soils tests or geotechnical tests and any other information shown in Schedule 4'.)

No explanation or amendment to the tender documents will be recognised unless it is in the form of a written addendum issued by the architect, receipt of which must be acknowledged in writing by the tenderer.

CT.03 Document deposit [optional clause]

Tenderers will be supplied with one copy of the tender documents and one set of the tender drawings. These documents remain the property of the architect.

A deposit of $[***insert amount***] is required. If the tender documents are returned in good condition to the architect within 14 days of the date for the closing of tenders, the deposit will be refunded. The deposit will be forfeited if the documents are not returned in good condition or if they are returned after 14 days.

CT.04 Additional tender documents [optional clause]

Additional sets of tender documents may be purchased for $[***insert amount***] a set.

CT.05 Tenderers to acquire information

It is the responsibility of tenderers to obtain all information relevant to submission of a tender conforming with the tender documents.

Further, tenderers will be deemed to have:

• examined the tender documents, the site and its surroundings, and any other information made available in writing by the owner or architect to tenderers for the purpose of tendering
• examined all information obtainable by making reasonable inquiries which is relevant to the risks, contingencies, and other circumstances affecting the tender
• satisfied themselves as to the accuracy and sufficiency of their tender and that the resultant price covers the cost of complying with all the obligations of the tender documents and of all matters necessary for the due and proper performance and completion of the work described in the tender documents

CT.06 Submission of tender

The tender must be submitted on the Form of Tender pro forma provided.

The tenderer must state:

• [if an individual] their name and address in full
• [if a firm/partnership] the name and address of the firm and each member of the firm in full
• [if a corporation or company] the name of the corporation or company and its registered office

Tenderers must include an address for service of notices for the purposes of this tender and any subsequent contract arising out of this tender.

Tenders must contain all the documents required to be lodged described in the following CT.07.

The tender form must be signed by the tenderer, a partner of the firm, or if a company, an individual authorised by it, as applicable.

CT.07 Documents to be lodged with tenders

Listed below are the documents which need to be completed and lodged with the tender:

• Form of tender
• Schedules of monetary allowances to be incorporated in the contract [if applicable]
• Schedule of rates [if applicable]
• Schedule of prices [if applicable]
• Schedule of proposed substitutions for specified items [if applicable – see CT.13]
• Evidence of the builder’s current registration or licence, as applicable, to carry out the work where the project is located
• [others as required]

CT.08 Documents for information only [optional clause]

The documents listed below are provided for the convenience of the tenderer, for information only, and are available for inspection at the office of the architect by prior arrangement:
(under ABIC contracts this cannot include any information which forms part of the site information, defined as 'any reports, surveys, test results, plans, specifications, computations or other information such as foundations data, soils tests or geotechnical tests and any other information shown in Schedule 4' because the contractor is entitled under the contract to rely on it 'to the extent that it is reasonably to do so, having regard to the nature of the site and its surroundings')

The information in these documents is not guaranteed and tenders submitted must be based on the tenderer's own investigations and determination. The documents are not, nor are they intended to be, part of any contract.

CT.09 Tender lodgement

Tenders are to be addressed to: [Include facsimile number if electronic submissions confirmed by hard-copy documents are acceptable. Email is not usually as reliable and therefore can create problems with proof of time of delivery.]

Tenders must be:

• received by the date and time for closing of tenders
• enclosed in a sealed enveloped marked with the description of the work
• enclose all the documents to be lodged with the tender
• delivered to, or sent by prepaid post to, the address shown above

Subject to the following, tenders received after the date and time for closing of tenders will not be considered.

Electronically transmitted tenders that include all the documents to be lodged with the tender and that are received by the date and time for closing of tenders may be admitted for consideration, subject to confirmation of the tender with hard copy documents being received within 24 hours. The only acceptable form of confirmation will be the original written copy of the tender. The architect will not take responsibility for the quality of transmission or timely receipt of electronically transmitted tenders. [Include the paragraph above only if electronic submission confirmed by hard copy documents is acceptable.]

Tenders received late which were submitted by registered or express post may be considered only if the architect is satisfied that they were posted before the date and time for closing of tenders and, in the ordinary course of post, would have been received at the above address by the stated date and time. Impressions of franking machines are not acceptable evidence of timely posting or dispatch.

Oral tenders will not be considered.

CT.10 Prerequisites to acceptance

Notwithstanding any other requirements of the tender documents, a tenderer must, if so required, submit additional information to allow further consideration of the tender before any tender is accepted or a preferred tenderer is nominated.

If the tenderer fails to submit any of the information requested by the date and time stipulated the tender may be treated as informal.

CT.11 Acceptance of tender

A tender will not be deemed to have been accepted until notice in writing of acceptance is handed to the tenderer or is sent by prepaid post or facsimile, or is left at the address stated in the tender form for the service of notices.

On acceptance of the tender, the tenderer is required to execute the building contract.

[or alternatively]

On being notified that the owner intends to accept a tender, the tenderer is required to execute a building contract incorporating its terms, or terms otherwise agreed by the parties.

CT.12 Site information [optional clause which cannot be used with ABIC contracts – see CT.08 above]

The owner does not guarantee or warrant any site or sub-surface information it supplies for the convenience of tenderers. Any such information or opinion does not form part of the contract. Any tenders submitted must be based on the tenderer’s own investigations and determinations.

CT.13 Proprietary names/specified items [optional clause – ensure this is not contrary to the specification]

When proprietary names, brands, catalogue or reference numbers are specified in the tender documents, they are intended to set a minimum standard, and preference for any particular material or equipment is not intended. The tenderer may offer material or equipment of equivalent characteristic type, quality, appearance, finish, method of construction and performance provided detail of all proposed substitutions is stated with the tender.

CT.14 Customs duties [optional clause]

The tender must include customs duty applicable to all imported materials, plant and equipment required for work described in the tender documents.

CT.15 Collusive arrangements

[optional clause – alternatively, reference to statutory tendering codes of conduct and/or mutual agreements with builder organisations in your state or territory may be inserted]

As a condition for permission to tender, the tenderer promises that:

• the tenderer has no knowledge of the tender price, including rates, of any other tenderer
• except as disclosed in the tender, the tenderer has not in relation to this tender, entered into any contract, arrangement or understanding to pay or allow, or enter into a future contract to pay or allow, any money directly or indirectly to a trade or industry association (above the published membership subscription fee) or to, or on behalf of, any other tenderer, nor paid or allowed any money on that account
• the tenderer has not allowed or entered into any contract, arrangement or understanding to receive, or enter into a future contract to receive, any money directly or indirectly from, or on behalf of, any other tenderer in relation to this tender nor received any money on that account
• has no record or alleged record of unethical behaviour

CT.16 Alternative tender proposals

A tender must be submitted strictly in accordance with the tender documents and no alternative will be considered.

[or alternatively]

Tenderers may submit alternative proposals for consideration, but must also submit a conforming tender.

Where an alternative is tendered, the tenderer must include a fully detailed description and must state clearly the manner in which it differs from that specified.

[or alternatively]

Tenderers must submit a conforming tender AND must submit prices for the following alternatives:

Tenderers may submit further alternatives.

Where an alternative is tendered, the tenderer must include a fully detailed description and must state clearly the manner in which it differs from that specified.

[or alternatively]

Tenderers may submit alternatives for only those items nominated hereunder: [list items]

Where an alternative is tendered, tenderers must include a fully detailed description and state clearly the manner in which it differs from that specified. If a tenderer submits alternatives the tenderer must also submit a tender that complies completely with the tender documents.

CT.17 Alternative time for practical completion [optional clause]

The schedule to the contract specifies the time for practical completion and the liquidated damages applicable under the contract or each separable part of the Works. Tenderers must submit a tender in accordance with these requirements. Consideration will be given, however, to additional tenders that offer different times for practical completion.

CT.18 Working hours and working days [optional clause]

If a tender includes an allowance for work under the contract outside the working hours, or on other than the working days, prescribed in these documents, then the tender must state the working hours and days proposed.

In the comparison of tenders, regard may be had to the working hours and days proposed by the tenderer and to any costs to the owner attributable to work outside the prescribed working hours and/or on other than the prescribed working days.

CT.19 Discrepancies

If a Tenderer finds any discrepancy, error or omission in any of the tender documents, it must notify the Contact Person in writing as soon as possible.

CT.20 Confidentiality

The Principal’s Confidential Information includes all information contained in the tender documents or subsequently provided by the Principal other than Excluded Information.

The Principal may require Tenderers to return or destroy all copies of this tender or the tender documents and any other Confidential Information the Principal has provided to Tenderers.  Tenderers must promptly comply with this request and provide a written certification of destruction, if directed by the Principal in writing. 

CT.21 Intellectual property rights

All Intellectual Property Rights in information contained in the tender documents or any related material are owned by and will remain the property of the Principal and its licensors. A Tenderer is permitted to use that information and material only for the purpose of compiling their Tender.

Further reading

For further information on the subject of conditions of tendering:

• AS 4120:1994 Code of Tendering
• Relevant sections of standard specification systems such as NATSPEC

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Methods for obtaining tenders

Common methods of obtaining competitive tenders are:

Public advertisement (open tendering)

An invitation to tender is inserted in a newspaper before the tender period, stating the names of the architect and client, the location and nature of the proposed works, the closing date and time for tenders and the place where tender documents may be inspected. The architect may charge tenderers a deposit fee on the documents, being a reasonable value of the documents other than the bills of quantities. The fee is usually refundable on return of the documents intact and in good order within a specified time.

Selected (or invited) tenderers

Selective tendering occurs when the architect invites tenderers to apply to be placed on a selected list of contractors who will be invited to bid for the project, with the client’s approval. The advantage is that only selected tenderers, who have adequate experience, reputation, are financially sound, and have the resources and skills to do the work are considered. A contractor should not be invited to tender if any non-price considerations which could cause him or her to lose are known at the date of the invitation. These considerations could include rumoured insolvency or reputation for a poor standard of work. The architect's client may give instructions to include tenderers of the client's choice, who should be assessed on the same basis as the others. Since typically only four or so tenderers are selected, each tenderer knows they have a reasonable chance of gaining the contract and an incentive to study the tender documents thoroughly and put forward their best price. 

Public invitation to register interest as prospective tenderers (pre-qualification)

A public advertisement containing information similar to that in the open tendering process, but inviting contractors to register interest (not to tender) can be inserted in a newspaper or online before the tender period. The architect then assists the client to make a selection of tenderers from those who have registered. The selection is usually on the basis of evidence of capacity to execute the works.

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Tender period

The tender period (weeks) should be appropriate to the size and complexity of the works. The period must take into account whether bills of quantities are to be provided with the tender documents. The following is provided as a general guide.

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Number of tenderers

The minimum number of tenderers should be sufficient to ensure that the tender remains competitive in the event that one tenderer withdraws. On the other hand, if the number of tenderers is too high the competitiveness can suffer due to the lack of enthusiasm of the tenderers. For this reason three or four tenders is usual in most cases, with a maximum of six.

Where market conditions make obtaining tenders difficult, to facilitate receiving competitive tenders providing a fair comparison, consideration might be given to payment of a tender preparation fee to unsuccessful tenderers. For example, in smaller domestic work where a high drop-out rate may exist when market conditions are 'overheated'.

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Pre-tender conference

If the project to be tendered contains design or construction features not immediately apparent from the tender documents, then a pre-tender conference may be beneficial. This involves the architect holding a meeting of the tenderers to explain the rationale of those features, and to answer any general questions about the scope of the work. It is also an opportunity for tenderers to become familiar with the architect's and the client's expectations. It is essential to take minutes of the meeting and circulate them to all attendees.

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Clarification of documents

During the tender period it is not uncommon for tenderers to request clarification of some aspect of the tender documents. All such requests must be in writing and any response provided by the architect must also be in writing and the response and the question should be provided to all known tenderers. If the question and the clarification could materially affect the tender, an addenda should be issued.

Amendments to tender documents (addenda)

Addenda should not be issued for amendments that will not materially affect tenders. Minimum periods before the close of tenders in which an addendum can be issued are often set out in the tender conditions. These ensure that all tenderers have a reasonable opportunity to consider the reply before submitting. As a general rule, addenda which may require monetary adjustments should reach tenderers at least five working days before closing of tenders.

All addenda issued during the tender period must be numbered and dated. Tenderers must provide evidence at the time of lodging the tender that the tender includes all costs associated with all addenda. The evidence is usually in the form of an addenda acknowledgement form.

Extensions to tender periods

Tender periods may be extended in exceptional circumstances, having first obtained the authority of the client, but the architect should notify all tenderers of any intention to extend a tender period as soon as it is practicable to do so. It is not reasonable to extend the date when one or more tenders have already been posted. In the case of public tenders it may be necessary or desirable to advertise the extended period. By the same reasoning, it would not be reasonable to do so close to the original date that it is likely that some tenders are in the post.

Giving limited information to tenderers

Caution should be used when issuing information to tenderers on a limited basis, such as 'for information only'. A successful tenderer could later claim to have been misled by such information if it was reasonable to rely on it.

If a disclaimer is found to be ineffective and a tenderer successfully claims to have been misled by information provided with the tender documents, the tenderer could claim damages in tort, or more likely, take action on a Competition and Consumer or Fair Trading Act claim that the information provided was misleading and deceptive, and the architect may be included in the claim by the contractor or the owner.

If an aspect of a contract is to be at the risk of the contractor, it is essential in providing information about it, that the reasonableness of the contractor relying on the information is taken into account. Reasonableness will be affected by:

• the lack of any contrary information readily available
• the comprehensiveness of the information
• the apparent credibility of the information, (such as lack of a clear indication that it was not reliable)
• an implication that the tenderer must draw conclusions from it
• other factors including what the architect or owner said about it if questioned about the information

'Information only' documents commonly arise in relation to geotechnical information. However, under the ABIC suite of contracts the owner is obliged to give the tenderer all site information in its possession before tenders close. (Refer to the ABIC contract User Guides and section F of the contracts.) The contractor is entitled to rely on the site information to the extent that it is reasonable to do so, taking into account the nature of the site and its surroundings, after having inspected the site and reviewed the site information provided.

If after consideration, unreliable information is to be provided to tenderers, a specific disclaimer should be given in the tender documents. No disclaimer will be effective on its own, but a disclaimer should state that:

• the information is not reliable
• the tenderer is not required to draw any conclusions from it, but if it does, the conclusions are the tenderer's own
• neither the architect nor owner (or other consultant) will be liable for a tenderer's conclusion which is later found to be incorrect

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