Is a broadly worded privilege clause appropriate in Additional Instructions to Tenderers?

Question

Accepted Answer

QUESTION

I am contemplating the following Additional Instruction To Tenderers and am looking for constructive feedback on whether it is appropriate and if there is any legal precedent for such discretion.

Basis of Contract Award & Acceptance

The Owner reserves the right to award the Contract based on the above pre-requisites and to reject without further consideration, any tender which in its opinion, does not meet the criteria it considers essential for this project.

The tenderer, by submitting a tender, waives any claim or recovery for loss of profits or any prospective damages whatsoever if no Contract is entered into with the tenderer. In no event, shall the Owner be liable for the Tenderer’s cost of preparing and submitting a tender, which shall be done by the Tenderer at its sole risk.

COMMENT

This looks like a “broadly worded privilege clause”, a concept which the MMCDA has discussed and rejected, because we anticipate that this will deter bidders.

However, there is support for s a request for proposals, so that Owners can have flexibility to reject and likely negotiate. MMCD is investigating a RFP template.

Is a broadly worded privilege clause appropriate in Additional Instructions to Tenderers?

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