Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council - TENDERS

The Council invited the claimant club and six other parties to tender for a concession to operate pleasure flights from Blackpool airport. Tenders would not be considered if they were received after 12 noon on 17 March 1983. The club's tender was put in the town hall letterbox at 11 a.m. on 17 March, but the letterbox was not cleared, as it should have been, at 12 noon. The club's tender was not considered on the basis that it was received too late. On discovering what had happened, the Council decided to carry out the tendering exercise again.

However, when the successful tenderer threatened to sue, the Council retracted. The club sought damages for breach of warranty, arguing that the Council had warranted (promised) that the tender would be considered if it was received by the deadline. However, there was no express promise to this effect.

Held: An invitation to tender could give rise to an implied binding contractual obligation to consider tenders conforming to the conditions of tender when the tenders had been solicited by the Council from specified parties who were known to the Council, and there were absolute conditions governing submission including an absolute deadline.

BINGHAM LJ: During the hearing the questions were raised: what if, in a situation such as the present, the council had opened and thereupon accepted the first tender received, even though the deadline had not expired and other invitees had not yet responded? Or if the council had considered and accepted a tender admittedly received well after the deadline? [Counsel] answered that although by so acting the council might breach its own standing orders, and might fairly be accused of discreditable conduct, it would not be in breach of any legal obligation because at that stage there would be none to breach.

This is a conclusion I cannot accept. And if it were accepted there would in my view be an unacceptable…