Legal Issues in Tendering Process : A Critical Analysis in Thai Law and Foreign Laws

Abstract

It is undeniable that the offer and acceptance approach is recognized as the general requirement for considering the formation of a contract. Based on the content of an invitation to tender and the offer and acceptance approach, most of the invitation to tender is considered as an invitation to treat. Therefore, the submission of tender documents is considered as the offer made to the person who made an invitation to tender. It could not be the problem if there is a dispute when the principal contract is established because the parties rely on the contractual obligation. The problems will occur when the owner or the contractor denies signing the principal contract. The court also faces the theoretical problem of considering whether there is a contractual obligation at the time when the principal contract is not concluded. What the court relies on to be based on considering whether there is a legal obligation at that time or not. The court accepts that there is a legal obligation between the person who made an invitation to tender and the successful tenderer. The court analyzes the legal obligation as it comes from the tender process contract. It appears to be a reasonable method; however, the court grants favor to the person who made an invitation to tender rather than the successful tenderer.

The element of the tender process usually has the competition between the interested candidate, which submits the tender documents, and typically there is only one winner who will be granted the contract. Such nature of the invitation to tender resembles the prize competition. Interestingly, the tender process may be considered in the area of the pre-contractual phase, in which the pre-contractual liability principle may apply to the case.