Tendering Processes In Private Partnerships

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Tendering Processes In Private Partnerships

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Tendering Processes In Private Partnerships

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Question:
Discuss about the Tendering Processes in Private Partnerships.

Answer:
Introduction:

In Australia, the contract is governed by the Contract law and to certain extent, employment law. The term contract denotes an agreement that is enforceable by law. Certain essentials are to be fulfilled regarding the contract. There should be certain offer and acceptance regarding the contractual subject, there must be certain intentions of the party to bind themselves with the legal formalities. There should be certain consideration in the contractual agreement and the parties must be competent to make the contract. If these elements are covered by the parties, there must be a contract exists in between them.
Offer is one of the main criteria regarding the contract. Offer consists of certain promises to do a particular job. When an offer is made, it is presumed that there is consent of the person who made it[4]. There should not be any ambiguity regarding the conditions of the offer. There is a rule regarding the revocation of the offer. It can be upheld by the offeror at any time until the offer is accepted by another person to whom the offer is made. Offer can also be revoked if the contractual time is lapsed[5].
Offer sometimes mistranslated with the invitation to treat. Invitation to treat is an interest regarding certain thing where the person making it has a will to invite others to make an offer. Advertisement, auction and the tender are fall in such category. In Patridge v Crittenden [1968] 2 All ER 421, it was held that the term “For Sale” is not an offer, it is merely an advertisement and fall under the criteria of invitation to treat.
When any party shows his interest regarding the offer and wanted to bind himself is to be called that he has accepted the offer[6]. When an offer is accepted, there is an agreement taken place. Acceptance can be made in written version or verbally or by the conduct of the person who accepted the same. If an offer is accepted, the parties are become legally bounded by each other. In Carlill v Carbolic Smoke Ball Co, it was held by the court that an offer regarding the smoke ball has been made by the company and Mrs. Carlill had accepted the same. Therefore, if there is any breach made regarding the offer, Mrs. Carlill has every right to claim damage from the company.
Another condition of the contract is that there must be certain legal relation exists between the parties. In Balfour v Balfour [1919] 2 KB 571, it was held by the court that family agreement is like domestic agreement and there is no intention of them to be legally bound on the parties. Therefore, that cannot be stated as contract. In Wakeling v Ripley [1951] 51 SR NSW 183, it was held that issues regarding the will of a property are serious in nature and there are possibilities to bind the parties legally. Therefore, if there is any agreement regarding the will is made, that can be considered as a contract.
There are certain circumstances, where an offer can be revoked or terminated. The common rule regarding the same is that an offer can be resolved at any time before the acceptance. The offer can be revoked even after a date has been fixed regarding the offer. In Hyde v Wrench, it was held by the court of Australia that if the person to whom the offer has been made, rejects the same, the offer will be terminated.
Consideration is also playing an important role in this case. If there is no mention about the stipulated price of the contracting subject in the offer, then the offer could be vague in nature. If the offer becomes vague, it will fail to meet the criteria of contract and no contract will exist in between the parties. Therefore, there should be certain consideration mentioned in the offer.
In the present case, Taylor had made an offer regarding the honing machine. Luke was interested in the said offer. Taylor has fixed a date for inspecting the machine and Luke has decided to inspect the machine on the fixed date[7]. There are certain strong points have been pointed out in this case. The offer made by Taylor, on certain circumstances, misinterpreted with invitation to contract. However, certain facts should be considered regarding the same. It is clear from the case that Taylor has a wish to be legally bound with Luke regarding the honing machine. The conditions of the statements of Taylor were clear in nature[8]. Therefore, it can be stated that the statement made by Taylor is an offer in nature. There is no express statement regarding the issue that Luke has accepted the offer, but there is a provision that he was interested regarding the offer. It is to be decided that whether the interest can be treated as acceptance to the offer or not.

If there is an intention of the parties to be bind themselves with certain conditions, it can be stated that the offer has been accepted by the other party. Offer must be communicated properly by the person who is accepted the offer[9]. It has been stated clear in the problem that Luke has an interest over the facts stated by Taylor and he has revealed his interest to Taylor. Therefore, an intention regarding the offer by Luke can be seen. Under the law of acceptance, it is stated that the acceptance can be made vocally or by way of conduct. In this case, Taylor had fixed a date for the examination of the machine and Luke was showed his interest regarding the same and even took steps regarding the same by appointing an expert to examine the machine. Therefore, it is clear that Luke, by conduct, accepted the offer made by Taylor. Therefore, a contractual agreement is made in between them.
The offer made by Taylor is being supported by certain consideration regarding the honing machine[10]. It is stated in the case that Taylor shows his interest regarding the selling of the machine if Luke can pay him $375000 for the machine. Therefore, it can be stated that the offer made by Taylor has met the conditions of the contract. It is of no importance whether the price is appropriate or not. It is enough that certain consideration has been made by the offer.
Therefore, the elements of offer, acceptance, and consideration have been fulfilled. Now it is to be seen whether there is any legal relationship has been made in between the parties. As per the principle stated in Carlill v Carbon Smoke Ball, it can be stated that when an offer has been made by a party and the same is accepted by other, there is a contract made in between them and they will be bind legally. In the present case also, there is an offer is made by Taylor and the same was accepted by Luke. Therefore, from the essence of the above named case, it can be stated that contract has been made in between the parties and they became legally bound to each other.
In this case, a dilemma arose when Taylor had changed his mind regarding the selling of the product to Luke. The provisions of the termination contract will be applied here. It has been mentioned that an offer can be revoked even if a date is fixed over the issue. However, the common rule regarding the same is that an offer can be terminated at any time but the termination should be placed before the acceptance of the offer. In this case, Taylor had decided to cancel the offer after the offer was accepted by Luke. Therefore, it can be stated that Taylor has no right to revoke the offer at this particular stage[11].
Conclusion:
Therefore, from the above mentioned facts it can be stated that the criteria of the case is based on the contract law. The provisions of the contract is discussed here and it can be stated that the essentials of the case is attracting the criteria of the valid contract and based on the facts stated herein and principles of the cases laid down, the case can be concluded with the fact that there is a contract exists in between Taylor and Luke. Therefore, it can be stated that Taylor is bind by law to sell the machine to Luke.

Reference:
Cartwright, John. Contract law: An introduction to the English law of contract for the civil lawyer. Bloomsbury Publishing, 2016.
Gul, F. A., et al. “Factors influencing choice of discipline of study—Accountancy, engineering, law and medicine.” Accounting & Finance 29.2 (2015): 93-101.
Joseph, Pauline, and Pauline Joseph. “Australian motor sport enthusiasts’ leisure information behaviour.” Journal of Documentation 72.6 (2016): 1078-1113.
Liu, Tingting, Yan Wang, and Suzanne Wilkinson. “Identifying critical factors affecting the effectiveness and efficiency of tendering processes in Public–Private Partnerships (PPPs): A comparative analysis of Australia and China.” International Journal of Project Management 34.4 (2016): 701-716.
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
Ndekugri, Issaka, and Michael Rycroft. JCT98 Building Contract: Law and Administration. Routledge, 2014.
Poole, Jill. Textbook on contract law. Oxford University Press, 2016.
Scott, Geoff, and K. Warren Yates. “Using successful graduates to improve the quality of undergraduate engineering programmes.” European journal of engineering education 27.4 (2013): 363-378.
Takeuchi, Kazuo, and Peer Pfeilmaier. “Anti-combustion deposit fuel development for 2009 Toyota Formula One racing engine.” 15. Internationales Stuttgarter Symposium. Springer Vieweg, Wiesbaden, 2015.
Watts, Ronald L. “Comparing Federal Political Systems.” Understanding Federalism and Federation (2015): 11.
Wilson, John, and Kieran Pender. “Employment law: Terminating employment: Pornography, policies, and procedural fairness.” Ethos: Official Publication of the Law Society of the Australian Capital Territory 242 (2016): 28.
Wright, Ted, M. P. Ellinghaus, and D. Kelly. “A Draft Australian Law of Contract.” (2014).

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