During the bid analysis process holders may be asked questions by their client that require a legal opinion as part or as the whole of the answer. Holders should avoid providing legal advice to the client. This is of primary importance in the evaluation of bids where it becomes apparent that a bid submission contains an error, an irregularity, or appears to be incomplete. A bid may become non-compliant where it does not meet the requirements spelled out in the Instructions to Bidders, but the ultimate decision as to whether a bid is compliant or non-compliant should be left to the owner and their legal counsel.

It is important to make note of any missing or incorrect information that becomes apparent during the bid analysis so that the owner is aware of the irregularities, can evaluate the completeness of the bids for themselves, and can seek legal counsel if they feel it necessary to establish whether any particular irregularity or combination of irregularities renders a bid compliant or not.

With the multitude of court cases and precedents pertaining to bid law that have been and continue to be established by the courts, and the ever-changing implications of “Contract-A”, it is extremely difficult for lawyers keep up with case law or to predict the outcome of a court case. It is even more important that holders don’t find themselves in a position where they have provided their client advice relating to the analysis of a bid that eventually leads to a court case. A holder’s professional liability insurance provides no coverage for giving legal advice,