Hong Kong Case Law: Decisions & Judgments | LexChat

Topic

Discretion to invalidate tenders

Legal area

Court

23 Jan 2007

CHINA HARBOUR ENGINEERING CO LTD v. THE SECRETARY FOR JUSTICE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

Citation

CHINA HARBOUR ENGINEERING CO LTD v. THE SECRETARY FOR JUSTICE OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
Court

Court of Appeal
Case number

CACV138/2006

SCT2, read in context with the tender documents, did not impose an absolute mandatory exclusion for non‑compliance; it exposed tenderers to a risk of disqualification but left the government a discretion to invalidate non‑complying bids; because that discretion was not exercised the other bids remained conforming and there was no breach of the process contract by evaluating them together.
6 Mar 2006

CHINA HARBOUR ENGINEERING CO (GROUP) v. THE SECRETARY FOR JUSTICE OF THE HKSAR

Citation

CHINA HARBOUR ENGINEERING CO (GROUP) v. THE SECRETARY FOR JUSTICE OF THE HKSAR
Court

Court of First Instance
Case number

HCCT44/2004

SCT2, read in the context of the entire tender documentation and surrounding background, was directory not mandatory; the procuring entity had a lawful discretion to treat non‑compliant tenders as conforming; CTB properly exercised that discretion, treated bidders equally, and did not breach the process contract or implied terms; Notes for Tenderers were non‑contractual guidance and the Review Body report was non‑binding and of limited weight.