Your manager is considering legal action against the National Health service. Further, your manager is concerned about Olufsen LED’s own procedures when they invite tenders for the supply of parts involved in creating the light emitting diodes.

Assignment Brief

Question:

You work for Olufsen LED who are a UK based company that manufacture light emitting diodes which are mainly used in the production of scientific equipment such as microscopes.

Previously the company has done well financially securing large contracts with private clients and the National Health Service through competitive tendering procedures.

In recent years Olufsen have missed out on some crucial tendered contracts with the National Health Service. The National Health Service has failed to give any indication of why other businesses were preferred over Olufsen LED’s bids.

Your manager is considering legal action against the National Health service. Further, your manager is concerned about Olufsen LED’s own procedures when they invite tenders for the supply of parts involved in creating the light emitting diodes.

Advise Olufsen LED as to how, in UK contract law, ‘offer and acceptance’ works. Critically evaluate the nature of tenders within this advice with reference to case law, legislation and academic opinion where appropriate.

Sample Answer

Advising Olufsen LED: Understanding Offer, Acceptance, and Tendering Under UK Contract Law

Introduction

Olufsen LED, a UK-based manufacturer of light-emitting diodes (LEDs), has recently experienced difficulty securing NHS contracts through the tendering process. The company is considering legal action due to a lack of transparency in rejected bids. Additionally, Olufsen is reassessing its own internal tendering procedures. This advice outlines the key legal principles of offer and acceptance in UK contract law and critically evaluates the nature of tendering in public procurement. It also refers to relevant case law, legislation, and academic views.

Offer and Acceptance in UK Contract Law

In English law, for a contract to be legally binding, there must be an offer, acceptance, consideration, and intention to create legal relations. The foundation of contract formation lies in the clear agreement between parties, formed through offer and acceptance.

What is an Offer?

An offer is a clear and definite promise to be bound by specific terms, made with the intention that it shall become binding upon acceptance. As explained in Storer v Manchester City Council [1974], the court held that if the language used by the parties shows a willingness to be bound, it is an offer, even if formalities are not complete.

What is Acceptance?

Acceptance must be a final and unqualified agreement to all the terms of the offer. It must also be communicated to the offeror. In Entores Ltd v Miles Far East Corporation [1955], Lord Denning stated that acceptance must be received to be valid in instantaneous methods of communication, like email.

The postal rule, however, as per Adams v Lindsell (1818), states that acceptance is effective once posted, even if it never reaches the offeror. This may not apply in modern tendering, which often involves digital submissions.

The Nature of Tenders in UK Law

The tendering process is slightly different from standard offer and acceptance situations. A tender is often considered an invitation to treat (not an offer), meaning the organisation inviting tenders is not legally bound to accept any bid, including the highest or most favourable one.

Invitation to Treat vs Offer

An invitation to treat is an indication that a party is willing to invite others to make offers. A tender request generally falls under this category. In Spencer v Harding (1870), it was ruled that an invitation to submit tenders is an invitation to treat unless it explicitly states that the contract will be awarded to the highest or lowest bidder.

However, in Harvela Investments Ltd v Royal Trust of Canada (1986), the House of Lords found that where a tendering authority clearly commits to accepting the highest offer, this may constitute a unilateral offer, and if the terms are met, the bidder has a legal right to acceptance.

Obligations of Tendering Authorities

If the tender process includes a promise to treat all bidders fairly, then failure to follow the promised procedure could give rise to a breach of contract or even a judicial review, especially for public bodies.

In Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council [1990], it was held that when a public authority invites tenders and sets out clear procedures, there is an implied obligation to consider all properly submitted tenders fairly and according to the rules.

This case is particularly important for Olufsen LED, as it suggests the NHS may be legally obliged to consider their tender fairly, even if they are not required to award the contract to them.

Legal Considerations for Public Bodies Like the NHS

Public authorities such as the NHS are subject to additional regulations under the Public Contracts Regulations 2015, which implement EU law and continue to apply under UK law post-Brexit (with modifications). These regulations require:

• Transparency

• Equal treatment

• Non-discrimination

• Procedural fairness

If Olufsen LED believes these obligations were not followed (for example, the NHS did not give feedback or followed unclear criteria), they may have grounds for a challenge under procurement law, rather than traditional contract law.

Continued...