This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In the March 2006 decision of the Trinidad and Tobago Court of Appeal in NH International (Caribbean) Ltd. v. Urban Development Corporation of Trinidad and Tobago, the government’s urban development agency successfully defended itself against a legal challenge by a bidder that failed to win a tendered contract for the construction of administrative offices for the Ministry of Health.
While the Court of Appeal determined that the agency was a public body and therefore potentially subject to judicial review, it determined that the contract in question lacked a sufficient public element to attract a judicial review and the commercial activities of the agency were not subject to judicial review in instances where there were no allegations of fraud, corruption, and bad faith. The Court of Appeal found no reason to reverse the agency’s evaluation decision. It rejected the appellant’s claim that the agency failed to take relevant evaluation information from a quantity surveyor into account, finding instead that the major factor for not awarding the contract to the appellant was that its bid was $16 million greater than the winning bid.
As this case illustrates, awarding tendered contracts based on transparent value-for-money considerations will typically enhance the defensibility of a procurement process that becomes the subject of a legal challenge.
