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The Judicial Committee of the Privy Council Decisions
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Cite as:  UKPC 83,  BLR 143
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Pratt Contractors Ltd v. Transit New Zealand (New Zealand)  UKPC 83 (01 December 2003)
Privy Council Appeal No. 84 of 2002
Pratt Contractors Limited Appellant
Transit New Zealand Respondent
THE COURT OF APPEAL OF NEW ZEALAND
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 1st December 2003
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Walker of Gestingthorpe
[Delivered by Lord Hoffmann]
Competitive pricing procedures
The Vinegar Hill Contract
"107.1 The lowest or any tender will not necessarily be accepted. The Principal reserves the right to reject all tenders.
107.3 Tenders shall conform and be evaluated in accordance with the current issue of [Transit's]:
(a) Manual of Competitive Pricing Procedures
Volume 1: Physical Works and Professional Services. Tenders will be evaluated by the Weighted Attributes Tender Method."
"If no tender has been accepted within two months after the closing of tenders, each tenderer shall be notified in writing by the Principal or his agent whether his tender is or is not still under consideration. Tender rates and prices shall remain fixed and valid for acceptance for two calendar months unless otherwise stated in the tender documentation."
"5. The tenderer nominates the following as surety for the due performance of the contract and upon request shall furnish a certificate signed by the nominated surety that it will execute the bond should the tenderer be awarded the contract."
Relevant Experience (4%)
Track Record (10%)
Technical Skills (Personnel) (4%)
Management Skills (4%)
The tender evaluation team
The tender evaluation
"(i) Do not include financial resources in any weighting of attributes.
(ii) Where there is doubt that the tenderer has sufficient financial resources to complete the contract, a recommendation shall be made to the TNZ Land Transport Manager on a pass/fail basis …
(iii) An additional performance bond may be considered in cases of doubt."
"12. Selection of a contractor who has a consistent record of completing contracts without undue delays or substantial cost overruns or a history of involving costly litigation procedures."
"Overall it is our view that Transit New Zealand would be unwise to consider the tender of Pratt Contractors Ltd for this important contract."
The second tender round
The Court of Appeal
The contractual terms
"does not as such impose on [the employer] under the guise of contract law, the obligation to avoid making its decision or otherwise conducting itself in ways which would render it amenable to judicial review of administrative action."