Can the Dispute Resolution Clause survive Contract termination due to fraudulent misrepresentation at the Tender stage?

By Michael de Freitas (Candidate Attorney)

Introduction

Tender fraud is a common occurrence in South Africa and numerous contractors have been found guilty of fraud for submitting false and incorrect information at the tender stage to Employer(s). Tender fraud has far-reaching consequences including, termination of the construction or engineering agreement by the Employer and the possible blacklisting of Contractors who commit fraud and who operate in the public sector. This has bearing on the question of whether a dispute arising as a result of an agreement being terminated due to tender related fraud is subject to the binding dispute resolution clause contained within the construction or engineering agreement, or whether the parties have to approach a court directly.

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