Don't make (tender) promises that you cannot keep, says Alison Mayfield
Commercial lawyers have been advising clients ad nausem to counsel sales departments and negotiators to curb their wild enthusiasm for winning business in favour of more conservative but realistic claims about either the abilities of the service providers to do the job or the qualities of the goods on sale. So, few of us will have failed to register with some satisfaction the recent decision of BSkyB Limited and another v HP Enterprise Services UK Ltd (formerly EDS Ltd) and others [2010] All ER (D) 192 (Jan).
The defendant won a tender to provide a customer relationship management system. Ultimately the new system was four years late in its delivery and the delivery process had been hampered by delays and renegotiations. As a result BSkyB alleged that EDS had fraudulently misrepresented its ability to deliver the Customer Relationship Management system prior to entering into a letter of intent, prime contract and letter of agreement and claimed damages for deceit of £270m arising from the pre-contract representations which had been relied upon by
