| Date | 17 December 1997 |
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| Judgment | Comyn Ching (Sheffield) Ltd -v- Radius Plc |
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| The Issue | Duties of care owed by tenderers to investigate requirements of their potential client and propose workable solutions. |
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| Implication |
There is no implied duty upon a tenderer for supplies or services to ascertain their client's requirements in the sense of taking on a consultancy role as part of their proposals. |
printContractors and consultants tendering for construction projects are expected these days to put together very comprehensive proposals, which not only answer the specific points raised in the tender enquiry documents, but also outline extensively the company's expertise, experience, procedures and methods for the proposed works. In certain situations, tenderers are expected to prepare on a speculative basis, full option appraisals which require an extensive understanding of the potential client's needs. Whether a tenderer might owe duties of care to their potential client in preparing these proposals and in properly researching the requirements of the client, was examined in the recent case of Comyn Ching Ltd -v- Radius Plc. Comyn Ching was a firm of architectural ironmongers in the process of undertaking a considerable programme of expansion. To exploit the advantage of its increased size, it wished to computerise its operations and accordingly approached Radius for computers and software. Whilst there was no formal written contract, Comyn Ching considered that it had bargained for an integrated stock control and accounting system to cover the whole of its group operations. Some computers and software were eventually delivered to three individual sites within Comyn Ching's company. These were paid for and used for some years, but disputes nevertheless arose over the fact that a fully integrated system to cover the whole of the operations of Comyn Ching had never been installed. This legal action had had a somewhat checkered history, but a third statement of claim, claiming in excess of £3,000,000 plus interest, had been served when his Honour Judge John Lloyd QC ordered a trial of certain preliminary issues. In one of these preliminary issues, heard before Judge Bowsher QC, Comyn Ching alleged that Radius owed it a duty of care such that before making any proposals as to the nature of hardware and software which it might sell to its client, a competent, experienced computer company should have taken certain steps to ascertain the user's requirements. This would include, according to Comyn Ching, obtaining as much information as possible about the sites for which the computer was proposed, visiting the sites and examining the existing systems, analysing the operations to be automated, and designing a system to perform such operations by specifying suitable hardware and software. In support of these contentions Comyn Ching argued that it would rely on any solutions proposed by Radius. A brochure was cited in which Radius described itself as a "solutions company" and an "experienced computer company" which had successfully applied computer solutions to a multitude of businesses. In considering these points Judge Bowsher was particularly swayed by the fact that Radius had offered to make an investigation for a fee of some £7,000. Comyn Ching had rejected this offer. Thus Comyn Ching were arguing that it was negligent of Radius not to make appropriate investigations free of charge in their proposal document, even although such an investigation had already been offered to them for payment and refused. According to Judge Bowsher "that proposition is so unreasonable that it must be wrong in law". In conclusion Judge Bowsher considered that there was no implied obligation on a tenderer to take on the role of consultant. Indeed he considered that it must be obvious that a customer could not trust a supplier to recommend the product of another supplier without any prejudice. Accordingly Radius did not owe its client the duty of care as alleged. As a further preliminary issue Judge Bowsher had to consider whether the brochure of Radius, describing itself as an experienced computer company, capable of solving day to day problems "whatever they might be", was a representation relied upon by Comyn Ching in entering into the agreements. The court considered these brochures were essentially "puff". They partly related to the offer of services for which Radius expected to be paid but which were offered and refused. As to the computers actually supplied, it had not been established that Comyn Ching had bought a system in reliance of those statements, nor indeed had it been established that these representations were untrue. Accordingly these documents could not amount to a misrepresentation on the part of Radius.
CJ-9745
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