Abe Copiers Pty Ltd v Secretary of the Department of Administrative Services

[1985] FCA 255

CATCHWORDS

ADMINISTRATIVE LAW - tenders called by Department Of

Administrative Services - whether applicant mtltled to reasons for Department's failure to recommend It as successful tenderer -

whether administrative decision	-	whether declslon "under an
enactment .

Administratlve Decisions (Judicial Review) Act 1977 5.13

Aludit Act, 1901

Flnance Requlations. reg.52

A.B.Y.COPIERS PTY. LIMITED	v. THE SECRETARY OF THE DEPARTMENT
OF PDMINISTRATIVE SERVICES
No. G142 of 1984
FOX J.
Sydney
17 June 1985

-. . - IN THE FEDERAL COURT OF AUSTRALIA ) )

NEM SOUTH WALES DISTRICT REGISTRY	)	No.Gl42 of 1984
)

DIVISION	GENERAL	1
BETWEEN :
A.B.E.COPIERS PTY.LIMITD

Applicant

AND :

THE SECFETARY OF THE DEPARTMENT

OF ADMINISTRATIVE SERVICES

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:	Fox J.
DATE OF ORDER:	1 7 June 1985
WHERE MADE:	Sydney.
THE COURT ORDERS THAT:

1. TVe application be dismlssed.

2. The applicant pay the respondent's costs of the

application.

Note:

SeLLlcment and entry of orders is dealt with m

Order 36 of the Federal Court Rules.

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' ! . . IN THE FEDERAL COURT OF AUSTRALIA )
,:- - - -
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-1 NEW SOUTH WALES DISTRICT REG1STP.I' ) No. G142 of 1984

)

GENERAL DIVISION

A.B.E. COPIERS PTY. LIMITED

Applicant

m:

THE SECRETILFY OF THE DEPAPTMENT

OF ADMINISTRATIVE SERVICES

Respondent

.-	CORAM: FOX J.
m:

REASONS FOR JUDGMENT

FOX J.

In thls case the applicant seeks a declaration under

sub-secn.l3(4A) of the Administrative Decisions (Judic131 Review)

m ("the Act") 1977 that it was entitled to make a request to

the respondenr for a statement of reasons and other matters

referred to in sub-secn.l3(1) of that Act. The respondent

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submits that the request was not competent, as beinu outside the

4. terms of the sub-section.

The sole question is whether the decislon to which the

request related was made "under an enactment" within the meanins

of that phrase in the definition of "decision to whlch this Act

applies" in sub-secn. 3(1) of the Act. Reliance is placed on s..5

of the- Act, which deals with decisions, rather than s . 6 , which

deals with conduct for the purpose of making decisions.

On 1 February 1984 the Secretary of the Department of

Administrative Services approved, in so far as It related to

items 2 , R and 9, a recommendation expressed in the followinu

terms :

"11. RECOMMENDATION: That approval be granted to

arrange perlod contracts wlth the undermentloned

tenderers for the purchase of Photocopiers CO

Australian Government Departments and Authorltles for a

one year period from date of acceptance wlth the

Commonwealth reserving the rlght tn	a optlon to Fxtend
for a further m e year period.

Oce Reprouraphics Ltd.	Items 2 . 3 and 8
ABE Copiers Pty.Ltd.	Item 1

Nashua A st.Pty.Ltd. Item 9

Remington Office Machines

Item Pty.Ltd. 6

m: Remington acceptance subSect to agreement on offset."

Item 10 was necessarily linked with item 9 . and approval m

relation to it was uranted on the same day. Items 4, S and 7 were

not covered by the recommendation as technlcal evaluation f them

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had not then been completed.

On 8 February 1984 recommendations in respect of item 3

and of item	4 (which had by then been evaluated) were approved.
The approval	was sought by a subordinate offlcer of the

Department in the followinu terms:

" 2 ... Your approval 1 s now sought to accept tendered

purchase offers in respect of items 3 and 4. for which

items tenders evaluation has	now been completed	..."
and, later

3 "I seek your approval of the recommendations herem for

items 3 and 4 at a total estimated expendlture of

$400,000 per annum."

The request under 5.13 of the Act related to items 2 . 3 ,

4, 8 and 9 . The applicant had been successful in relation to

Item 1. The decision referred to in the application is the

decision not to accept the applicant's tender for the items just

mentioned. The enactments relied upon as belnu those under whlch

the decision was made were, as expressed, (a) the statutorv

scheme requlating the expenditure of public moneys contained in

Part V of the Audit Act, 1901, and Part 111 of the Finance

Requlations made under that Act and (b) regn.	52 of the Finance
Requlations.

4.

I think it was by way of distinguishing other cases,

including cases decided in this Court, that counsel for the

:	,':	applicant submltted that the acceptance of the tenders did not
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involve the making of a contract, and that the documents ~t was
intended to prepare would not, when executed, constitute a
contract. Re Webster (1975) 132 C.L.R. 270 was relied upon. In
with the Commonwealth for the provision of stores. After a close examination of the documents Barwick C.J., sittinq as a Court of that case, there was a question whether there had been.a contract p.285 he said:

"Havinq examined the documents, and particularly havlng

regard to the several conditlons they contain, I am

clearly of opinion that no standing or contlnulng

agreement was created by them. The offer, in my

opinion, was no more than an offer to accept and fulfll

orders given during the period concemplated and within

the specification of the quotation. assuminq It not to

have been revoked before the order was received. It IS

evident from the terms of the documents that the offer

to supply made by the company was not accepted by the

Department unt.1 a specifx order for timber was given.

The documents are express on that point. The indorsed

conditions also make it plam to ny mlnd that the

Department could choose to order any part of Its

requlrements from other suppliers. It dld not become

bound to order. There was therefore no continulnq

contract between the companv and the Department created

by the documents: there was no contract with currency

for an agreed period of time: there was no "overall"

agreement between the company and the Department wlth

respect to the supply of red gum timber or of the

selected items. "

It 1s apparent in the present case that no contract has

been concluded. It may be a question whether one will come into

existence before goods to which the documents relate are ordered.

5

Although it was anticipated that there would be somethinu in the nature of a "standing" or "overall" agreement, allowing for goods

I.

to be ordered In accordance therewith, from time to time, it was

made plain in the tender documents that the Commonwealth was not

to be rmder an obliuation to order any "specific quantity" of

goods. The documents made many detailed provisions uovernillu the

supply of what it was expected would be ordered. .

The enterinu into of a contract such as that In

contemplation would be an exercise of an inherent power of

government and would not be done under an enactment. What was

beinu done was preliminary to the making of a possible contract or contracts; tenderers were Indicating acceptance of prg-forma terms on which they would be willing to supply.

The argument turns to look dlrectly at the tender

operatlon Itself. It is sald in effect that as the procedure

governing the manner of entering Into contracts by the uovernment

is, to a greater or less extent, presribed by statute 2nd

regulations, a decision to accept a tender, or to reject one, is made under that leglslation. Counsel have told me, and I accept.

that the closeness of the regulatory control goes no further than

is provided in the enactments to which I have referred. There

are no other relevant conditions or restraints. No faillxe to

observe the enactments is at present pointed to, although it 1s doubtless hoped or expected that some invalidating circumstance

affecting the decision will appear from an answer to the 5.13

6.

:j

, i Part V of the Audit Ac contains general provisions

.. dealing with the expenditure of Commonwealth moneys and in my

view the decision cannot be said to have been made under	them, or
the "scheme" they are said to constitute.

Regulation 52 was in the following terms:

"52.(1) Subject to any Act making provlslon wlth

respect to contracts for supplies and sublect to the

next succeedlng regulation, contracts shall not be

entered into, and orders shall not be placed, for

supplies the estimated cost of which exceeds $10,000

unless tenders have first been publicly invxted for

those supplies."

(A subsequent amendment has increased the amount to

$20 .000) .

The "next succeeding regulation" is regn. 52- and it

does not apply in the present case.

It is not disputed that regn. 52 relates to contracts

for supplies such as were antlcipated by the tenders called for.

The prmcipal document which went out from the Department was

erltitled "Request for Tender". It stated the time at which

tenders closed, and that the lowest or any tender would not

necessarily be accepted, and should not be deemed to have been accepted unless and until the tenderer was notifled m wrlting. The sublect contracts were to be "Period Contracts" and in that connection clause 10 of the document provided:

"10. PERIOD CONTRACTS: Where tenders are invited, not

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for any definite number or quantity of supplies,

but for such supplies as may be ordered during the

period mentioned, any contract let under these

conditions will be deemed to be a period contract.

See definition of 'Period Contract' in Condltion N

1 of General Conditions (Contract form ' A ' ) . "

Clause 19 was in part: as follows:

" 19. ESTIMATED REOUIREMENTSr Because reasonable

estimates of the number of machines likely to be

purchased are not readily avallable, quantities

indicating the likely purchases under any contract

arranged are not shown in this schedule. It shall

be distinctly understood that the Commonwealth

shall not be under any legal obligation to purchase

any specific quantity of machlnes."

I think that the substance of the situation should be

looked at, and that the call for tenders should be related to

intended contracts for the supply of the photocopiers, in the

sense that the Frocedure adopted, If correctly done, would be a

compliance with reqn. 52 so far as concerned any contracts

subsequently entered into. This then leaves a falrly fine polnt,

- was the acceptance (or non-acceptance) of tenders done under

the regulation? I do not think that the fact that the statutory

obliqation 1s expressed in negatlve terms is a critical matter.

Plainly, a power or duty can be implled from a

prohlbition. However, the prohibltlon in the present case is

aqainst contracting (or placing orders) without invlting tenders.

Tenders were invited. and the declsloll 1-0 call them, and the

manner of calling them are not under challenge. Declsions about

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accepting them, or some of them, travel outside the ranqe of regn. 52, and move into the area of preliminaries to contracting.

I am therefore of the opinlon that the declaration

should be refused, with costs.

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