DOI: 10.14457/tu.the.2019.1004
title: Legal issues in tendering process: a critical analysis in Thai law and foreign laws

description: In the business world, the tender process is one of the devices to acquire a competent contractor at a reasonable price. Meanwhile, the contractor acquires an acceptable profit. It is also the opportunity to both contractor and the owner to achieve the goal together. The problem will not occur if both owner and contractor conform to the tender process. However, as it is naturally, the problem occasionally occurs, and the dispute resolution is one of the methods to solve the case.It is undeniable that the offer and acceptance approach is recognized as the general requirement for considering the formation of a contract. One of the issues is what the legal status of an invitation to tender is. Based on the content of an invitation to tender and the offer and acceptance approach, most of the invitation to tender is considered as an invitation to treat. Therefore, the submission of tender documents is considered as the offer made to the person who made an invitation to tender. It could not be the problem if there is a dispute when the principal contract is established because the parties rely on the contractual obligation.However, the problem usually will occur at the time that the principal contract is not concluded, such as the owner or the contractor denies signing the principal contract. The court also faces the theoretical problem of considering whether there is a contractual obligation at the time when the principal contract is not concluded. What the court relies on to be based on considering whether there is a legal obligation at that time or not.Amid skeptical situation, the court accepts that there is the legal obligation between the person who made an invitation to tender and the successful tenderer. The court analyzes the legal obligation as it comes from the tender process contract. It appears to be a reasonable method; however, the court grants favor to the person who made an invitation to tender rather than the successful tenderer. Usually, the tender process required the bid guarantee in order to be the virtual device to ensure the contestant’s performance according to the invitation to tender. The bid guarantee may be considered as the deposit or stipulated penalty, which depended on the existence of the tender process contract. As such, another issue is to consider what is the legal status of the bid deposit.Apart from that, would it be possible to apply another approach to solve the case? The element of the tender process usually has the competition between the interested candidate, which submits the tender documents, and typically there is only one winner who will be granted the contract. Such nature of the invitation to tender resembles the prize competition. The prize competition is one of the promise of reward that creates the legal obligation between the promisor and the contestant who won the prize.Interestingly, the tender process may be considered in the area of the pre-contractual phase, in which the pre-contractual liability principle may apply to the case. The pre-contractual liability is one of the methods which acknowledged by German Law that grant the protection to the parties in which there is no contractual obligation between parties. However, it is inevitable that the parties already take part or take action, which creates a legal duty called the duty of care.