Alert - Rights and Obligations in the Tender Process - September 2012
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Transcript of Alert - Rights and Obligations in the Tender Process - September 2012
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between Hannas unsuccessful tender and the Libraryfacility that was eventually built by the successful tenderer.
In nding that the Library had not breached any obligation
of condence, the Court determined that:
Not every tender process will give rise to a tender
process contract. In this case, the detailed tender
regime established by the Library did give rise to a
tender process contract.
The mere fact of a tender process contract does
not, of itself, import a duty of condentiality. Rather,
the Court had to look to all the circumstances of the
tender process. In this case, there was no express
clause in the tender documentation on condentiality,
but the Library was found to have an implied
obligation of condentiality.
The Library had not breached its obligation of
condentiality as there was found to be no disclosure
of any of Hannas tender information.
Public tendering
Requests for Tender issued by Commonwealth and State
governments are undoubtedly subject to these principles.
Indeed, the Court in the Hughes Aircraft Systemsdecision
noted that a duty to deal fairly arose not only by reasonof the agreed guidelines in that case but should also
be implied into the process contract as a necessary
incident simply by reason that an agency of government
or public body is expected to act fairly with those with
whom it deals.
Public tendering is further regulated by Procurement
Guidelines as part of the responsible conduct of
government business. In particular, Commonwealth
and State Governments will each be subject to
various obligations of condentiality in relation totender processes. Notably, the South Australian State
Procurement Board lists as a key principle of purchasing,
providing for ethical and fair treatment of participants
by maintaining condentiality and respecting rights and
obligations.
The decision in the Wagdy Hannacase is a reminder
for ofcers involved in issuing Requests for Tender to be
aware of the condentiality obligations and other legal
and contractual principles that can apply in the tender
process.
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