D invited tenders to run an airline route by a certain time, but said that they might accept no offers. P submitted their tender on time but, due to a mistake by D’s employee, it was not received or considered. CA said that (1) invitations to tender are usually no more than assertions that one will receive bids and (2) terms are not lightly implied into contracts. However in this situation, the conduct of D suggested an undertaking to consider all bids handed in on time (i.e. a unilateral contract to consider a bid IF tendered on time) and they had breached this contract.
Bingham LJ: because the tendering parties are so weak compared to the party receiving the tenders (creating a tender has no certainty of winning and involves preparatory costs), it is at least, under unilateral contract, entitled to have its tender opened and considered. He says that the invitation to tender was an offer to enter this unilateral contract.
In creating an exception to the general rule that an invitation to tender is NOT an offer of any sort, which the CA accepts and sustains, they consider (1) the small number of parties to whom the invitation was addressed (though Bingham’s argument about weakness of bargaining position is stronger if there are more parties); (2) the tender process was “clear, orderly and familiar” (again, this could apply to ANY tendering process); and (3) all parties assumed that on-time tenders would be considered (again this could apply to almost ANY tendering process). Thus the basis on which the courts found an exception to the general rule is unclear.