BGC Construction Pty Ltd v Minister for Works
[2009] WASC 398
•18 DECEMBER 2009
BGC CONSTRUCTION PTY LTD -v- THE MINISTER FOR WORKS [2009] WASC 398
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 398 | |
| 18/12/2009 | |||
| Case No: | CIV:3010/2009 | 3 & 4 DECEMBER 2009 | |
| Coram: | KENNETH MARTIN J | 4/12/09 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Mandatory interlocutory relief granted on terms | ||
| C | |||
| PDF Version |
| Parties: | BGC CONSTRUCTION PTY LTD THE MINISTER FOR WORKS |
Catchwords: | Interlocutory injunction Mandatory relief Balance of convenience Serious question to be tried Tender submission Nonconforming tender Promissory estoppel Misleading and deceptive conduct Urgent deadline for award of tenders |
Legislation: | Fair Trading Act (WA), s 10, s 76, s 77 |
Case References: | ABC Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Castlemaine Toohey Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Franconi Holdings Pty Ltd v Gunning Pty Ltd (1982) 1 SR (WA) 341 Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALJR 562 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE MINISTER FOR WORKS
Defendant
Catchwords:
Interlocutory injunction - Mandatory relief - Balance of convenience - Serious question to be tried - Tender submission - Nonconforming tender - Promissory estoppel - Misleading and deceptive conduct - Urgent deadline for award of tenders
Legislation:
Fair Trading Act (WA), s 10, s 76, s 77
Result:
Mandatory interlocutory relief granted on terms
(Page 2)
Category: C
Representation:
Counsel:
Plaintiff : Mr C G Colvin SC
Defendant : Mr N A Egan
Solicitors:
Plaintiff : Hotchkin Hanly
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
ABC Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Castlemaine Toohey Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Franconi Holdings Pty Ltd v Gunning Pty Ltd (1982) 1 SR (WA) 341
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALJR 562
(Page 3)
1 KENNETH MARTIN J: This is an application for urgent interlocutory relief. It comes before me in urgent circumstances by reason of a number of matters concerning tenders that were submitted for projects regarding the Cancer Centre and the PathWest project, which are part of substantial building works proposed at Sir Charles Gairdner Hospital. The situation is urgent because the tenders obtained for those projects nominate prices are fixed only until 21 December of this year.
2 The plaintiff's application which seeks mandatory injunctive relief, as well as negative restraint relief, has a potential to interrupt the ability of the defendant to make a final award of contracts pursuant to its evaluation of tenders, thereby jeopardising its ability to take advantage of the 21 December 2009 date for fixed prices.
3 There are a number of other considerations of urgency:
(a) the interests of other tenderers who have made submissions that are under consideration by the defendant;
(b) the interests of patients who would in due course be treated, particularly at the Cancer Centre;
(c) the interest of the public of Western Australia in terms of obtaining the benefit of contracts at the most commercially advantageous price; and
(d) the further interest of the public in terms of having the benefit of the most appropriately qualified tenderer to complete the two jobs in question.
4 I am conscious that the relief is sought in circumstances where the plaintiff seeks to amend its endorsement on the writ by an amended proposed substituted minute of endorsement of claim (Minute) handed to me by senior counsel at the hearing on 3 December 2009. Pursuant to the Minute it is apparent that the plaintiff seeks relief on the basis of estoppel, essentially explained to me as promissory or equitable estoppel - but potentially also a common law estoppel, depending upon how one characterises the relevant representation in question.
5 But the plaintiff has now augmented the basis for its overall relief by adding to the endorsement a claim for potential statutory relief under section 10 of the Fair Trading Act 1987 (WA) (Fair Trading Act). The plaintiff contends that what occurred at a meeting involving seven people on 8 October 2009 constituted misleading and deceptive conduct -
(Page 4)
- contrary to section 10 of the Fair Trading Act. The statute opens up a broad armoury of potential relief, including urgent interlocutory injunctive relief of a negative and positive character, under sections 76 and 77 of the Fair Trading Act.
6 Essentially, the final relief sought by the amendment is a permanent restraint against the defendant treating the plaintiff's tenders as nonconforming. Alternatively, it seeks equitable compensation, or statutory relief under the Fair Trading Act.
7 The application for relief is also advanced in the environment of an application by the plaintiff for directions seeking the action to be programmed through to an urgent trial, essentially in the week of 14 December 2009, with a view to obtaining a decision from the court which is proximate to the defendant's 21 December 2009 deadline.
8 The defendant submits that the proposed timetable is simply not feasible. It contends that processes of discovery are involved and that the amount of time involved for cross-examination of seven people who attended the meeting on 8 October 2009 (which is at the heart of the plaintiff's case), simply means that it is impracticable to contemplate a viable trial other than one of greater duration (possibly two to three days). This could only occur in the first quarter of 2010.
9 The practicalities of obtaining a resolution through an urgently convened trial, with a view to obtaining a decision from a judge of this court by 21 December 2009; and then bearing in mind the further potential for an appeal irrespective of what decision is obtained, is problematic. It would place an enormous strain upon the resources of the parties concerned and also on the court's resources which are limited, particularly at this time of the year.
10 The December 2009 trial proposal also needs to be measured against the relief that the plaintiff seeks, on the basis that the frenzy of activity that is contemplated through expedition might all be for naught - given that it may be the case that the plaintiff's tenders are evaluated and found (when assessed as conforming tenders) not to be the preferred, or leading tenders. Thus, there would have been convulsions of activity for no tangible reward.
11 Therefore, it seems to me that the notion of an expedited trial producing a decision before 21 December 2009 is impracticable.
(Page 5)
12 I must therefore view the claim for the interlocutory relief in that timeline context.
13 The principles regarding interlocutory injunctions and relief are not in dispute and are well summarised in the reasons for decision of Gleeson and Crennan J in ABC Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. I particularly refer to their Honours' observations at [19]. Their Honours also refer to the explanation of the organising principles by Gummow and Hayne JJ at [65] - [72] of those reasons in ABC Corporation.
14 Essentially, the plaintiff needs to demonstrate a serious question to be tried as to the plaintiff's entitlement to relief. The balance of convenience also has to favour the grant of an injunction. Gleeson CJ and Crennan J in ABC Corporation refer to those principles as the 'organising principles to be applied, having regard to the nature and circumstances of the case under which issues of which justice and convenience are addressed' [19].
15 Those principles, however, are not stand-alone, non-intersecting principles. They are in fact interdependent and influence each other. They must be applied as part of an overall consideration. Sir Anthony Mason's reasons in Castlemaine Toohey Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 155 addressed that interdependency consideration.
16 It has also not escaped me that the interlocutory relief sought, particularly at par 2 of the Minute, is in the nature of positive mandatory relief. As currently framed, the Minute seeks that the defendant by its servants, officers, agents or otherwise be ordered to include in the evaluation of tenders submitted, the tenders submitted by the plaintiff on the basis of subcontractors to be nominated by the plaintiff.
17 Meagher R, Heydon D and Leeming M, Meagher, Gummow and Lehane'sEquity: Doctrines & Remedies (4th ed, 2002) chapter 21, deals at length with the equitable remedy of injunction. Particularly as to mandatory interlocutory injunctions, I refer to the observations of the learned authors at par [21-395], at pages 788 - 789. It is apparent that there is a difference of view as to the stringency of the test to obtain a mandatory interlocutory injunction. In fact, the authors at page 789 suggest that there is in fact no higher test for an ordinary interlocutory injunction.
(Page 6)
18 The authors say that in Australia this was a view taken in a number of decisions referred to, including a West Australian decision of Heenan J in Franconi Holdings Pty Ltd v Gunning Pty Ltd (1982) 1 SR (WA) 341 and observations of Gummow J in the Federal Court in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, declining to follow Gibbs CJ in State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALJR 562 where the learned former Chief Justice of the High Court referred to the threshold test for a mandatory interlocutory injunction as being a high degree of assurance that the plaintiff's claim would succeed.
19 In the circumstances, it seems to me that I must remind myself that the nature of the relief sought under par 2 of the Minute is of a mandatory interlocutory kind. Moreover, in some ways it does actually carry with it a final outcome, which once implemented will then no longer be open to the subject of litigation, since if granted the result would have happened. Therefore, because of the finality of what is sought by the plaintiff, I have approached the matter on the basis of not only orthodox interlocutory injunction principles, but also the high degree of assurance test - essentially to ensure that the relief sought is measured at a high standard, bearing in mind the potential finality in the relief sought.
20 As to the question of a serious question to be tried, essentially there is a key factual dispute about what was said at a tender briefing meeting held on 8 October 2009. There is a version of events given by Mr Mark Parish in his affidavit sworn on 24 November 2009, on behalf of the plaintiff, which relates that he was in attendance at that meeting with three of his colleagues: Mr Martin Culverwell, Mr David Brierley and Mr Chris Spooner. Those three attendees on behalf of the plaintiff, have sworn affidavits confirming Mr Parish's version of what was said at that meeting.
21 Representing the defendant at that meeting were Mr David Jones, Mr Gary Dixon and Ms Emily Putnam. They also have sworn affidavits in these proceedings. Mr Jones, in particular, gives a different version of events.
22 I need to emphasise that at this point in time the court is not making a final fact-finding determination. Essentially, as I hope has been clear from my reference to ABC Corporation, I am ascertaining whether there is a serious question to be tried. I am not engaged in the trial process.
(Page 7)
23 Nevertheless, the very cornerstone of the plaintiff's claimed relief is largely predicated on what passed orally at the meeting.
24 It is therefore appropriate to carefully scrutinise the meeting in the context of evaluating the plaintiff's arguments as to a serious question.
25 In Mr Parish's affidavit of 24 October 2009 he relates what he says occurred. Between pars 16 and 19 of his affidavit he says:
16. The discussion then focused on the tender forms.
17. Mr Jones said that tenderers needed to submit with their tender a completed tender response form for each subcontractor submitted, and that the tender sum would be removed from each form.
18. I then recall Mr Jones categorically said, 'You can submit more than one sub-contractor per trade but they must each be submitted on their own schedule.'
19. Mr Jones then asked whether we had any questions.
26 I do not need to refer to the balance of what Mr Parish relates about that meeting.
27 Affidavits filed by Messrs Culverwell, Brierley and Spooner all support Mr Parish's recollection of that brief exchange at the meeting, which is critical to the plaintiff's case.
28 However, the Parish version is challenged in the affidavit of David Gregory Jones who, in his affidavit of 2 December 2009, relates that on the day in question, there were essentially seven meetings held by the defendant with each of the seven short-listed tenderers (of which the plaintiff was one).
29 Before I observe upon what Mr Jones said, I observe and assess that the defendant is at a forensic disadvantage, in circumstances where there is no verbatim tape-recording or a video-recording of what actually occurred at the meeting. The disadvantage to the defendant is that the defendant's three representatives were engaged in seven different meetings that day in which the same (tender related) subject matter was canvassed by reference to a commonly used PowerPoint presentation.
30 The plaintiff, on the other hand, with its four representatives, was engaged in only one meeting with the defendant's representatives that day. Therefore, as solicitors and medical practitioners routinely encounter in negligence suits against them, where there is no verbatim record of what
(Page 8)
- occurred, the party to whom its one meeting has critical importance - is at something of a forensic advantage, as opposed to the party who is engaged in many meetings. Furthermore, as is only to be expected and commonly occurs, multiple meetings dealing with the same subject matter can tend to blend into each other in terms of recollection.
31 What Mr Jones says in his affidavit as to the meeting is:
17. In the briefing with the Plaintiff's Representatives, following the presentation and as part of the question section, one of the Plaintiff's Representatives (I do not recall whom) asked whether they could submit more than one subcontractor for each trade.
32 He relates his response as follows:
18. In response, I said words to the effect that, 'we'll take that on board and we'll review the questions and then determine if we will change the intent.
33 In brackets, Mr Jones explains:
[T]hat is, the intent that only one subcontractor per trade be nominated.
- That is essentially the main evidence from Mr Jones.
34 Mr Dixon, who was also at the meeting, deals with the same exchange that took place at the meeting. He annexes some longhand notes but they do not materially bear upon what occurred. Mr Dixon relates, between pars 19 and 22, his recollection of what occurred. Critically, he says:
21. I do not recall the exact words that were used but we made it clear that any queries would be addressed in the addenda.
35 I can, I think, at least safely conclude that the issue of multiple subcontractors was raised at that meeting. The question in dispute is what the response on that issue from Mr Jones was.
36 Ms Putnam's affidavit deals with the same issue at between pars 18 and 21. Again, I do not need to set out all of what she says verbatim. However, at par 19, she says, 'I do not remember precisely what was said in response'. And then:
19. I do know that at various stages during the briefing Gary Dixon and David Jones said words to the effect that we would be noting the question and providing clarification in respect of that issue and other issues raised in an addendum.
(Page 9)
37 Ms Putnam goes on to say:
21. I am very confident that no final decision was conveyed in respect of submitting more than one subcontractor in the briefing with the plaintiff or any other tenderer. I am also confident that if such a decision had been conveyed, I would recall it, as I do recall that there was one such issue, as discussed below.
38 I cannot place any reliance on the expression of rolled-up confidence by Ms Putnam in what really is a submission, at par 21. For Ms Putnam to relate her evidence in that form at trial would obviously be inadmissible.
39 In terms of my evaluating, for the purposes (not of making any final determination) of assessing the existence of the serious question to be tried, it seems to me that the plaintiff has established a respectable, perhaps more credible version of what occurred at the meeting, and bearing in mind that there has been no cross-examination of any of those affidavit deponents.
40 I make that observation in the context of the plaintiff's claim for relief based upon estoppel. A key ingredient for an estoppel, in very brief terms, is a representation. What Mr Parish says at par 18, in terms of his recollection of what Mr Jones said, namely, 'You can submit more than one subcontractor per trade but they must be submitted on their own schedule,' would constitute a representation for the purposes of generating an estoppel, in my view.
41 The requirements to make good a promissory estoppel include not only the representation, but also reliance upon the representation and then, detriment.
42 There seems to be no real argument here that the plaintiff, on its case, submitted a tender on the basis of identifying more than one subcontractor, but in doing so listed those subcontractors (in the areas concerned) on separate schedules in accordance with par 18 of Mr Parish's affidavit.
43 The third element for an estoppel is detriment. Again, it would seem to me that the plaintiff can establish a serious argument for its detriment. This would be so if the consequence of its conduct (on the basis of the representation it relied upon) led it to a position whereby it submitted tenders on an erroneous basis which were assessed as nonconforming and thereby eliminated from consideration by the defendant. Again, I
(Page 10)
- emphasise that I am approaching the matter on the basis of what is now arguable as to the serious question to be tried at a trial.
44 I have also not forgotten that the alleged representation would need to be construed in light of the tender documentation. And I have not forgotten that essentially there is no contractual relationship with the person who submits a tender until their tender is accepted.
45 The representation needs to be viewed in light of the tender documentation as a whole. In this respect, I refer to the Comprehensive Cancer Centre Stage 2 Tender documentation, section A preliminaries, at cl 1.7 (see page 57 of the Parish affidavit) Tender Schedules 1 to 7 including supporting information for/of proposed key subcontractors and personnel.
46 Likewise, in the PathWest Laboratory New Stage 1 Tender documentation, cl 1.7 (see page 443 of the Parish affidavit), again in section A preliminaries, where there is a reference to provision of 'Tender Responses, TR1-TR8, duly completed, signed and dated and including supporting information'. It goes on to list the nomination of proposed TR1 to TR8 subcontractors.
47 That documentation, which was in existence before the meeting, seems to me to be equivocal about the issue of whether there could have been more than one subcontractor or not. Bearing in mind the response that the plaintiff says Mr Jones gave at the meeting, the tender documentation needs to be assessed in the context of a clarification which was allegedly provided, namely that it was possible to have more than one subcontractor, provided there was only a discreet individual schedule for each subcontractor.
48 That is not the end of the story on the serious question, however. The defendant then says that, irrespective of any view about what actually passed at the meeting, the ultimate position was clarified in subsequent written addenda which were issued first on or about 13 October 2009, and again on or about 23 October 2009 (before the tenders were submitted on 30 October 2009).
49 I need to refer in that respect, to the Cancer Centre Stage 2 Addenda 1 at cl 1.7 (see page 722 of the Parish affidavit), which refers to the deletion of particular schedules and replacement with certain words. Item (ii), contains the following replacement words:
(Page 11)
- Tender Schedules 1 - 6 no longer require the sub-contractor's cost to be noted. The subcontractor's cost is to be supplied on request from the Principal.
50 Those words do not appear to be material to the task which I am embarking upon in terms of assessing whether or not what passed through the written addenda clarifies any misapprehension over what may have passed orally at the meeting. Item (iii) of the replacement words said in clearer terms:
Tenderers must nominate only one subcontractor on each Tender Schedule 1-6. Each Tender Schedule must be signed by the tenderer and the subcontractor.
51 In respect of the Addendum 01 for PathWest (see page 630 of the Parish affidavit), it indicates that replacement words for clause 1.7 were in these terms:
The tenderer must nominate a single sub-contractor for each of the Tender Responses TR4 to TR8 and each must be signed by both parties. Supporting documentation for Tender Responses TR1 to TR8 may follow post tender submission, but should any of the sub-contractors not meet the selection criteria, the tender submission may be deemed to be nonconforming by the principal.
52 The PathWest Addendum 02, which was published on 23 October 2009 (see page 733 of the Parish affidavit) states at page 2, under the heading of 'General Clarifications':
Tender Schedules shall be re-issued to exclude the requirement to provide a price for the Tenderers' selected sub-contractors. The Tenderers must still nominate one (1) sub-contractor for each schedule, and that schedule is to be signed by both parties. Supporting documentation may follow post tender but should the sub-contractor not meet the selection criteria this may deem the tender submission as non-conforming.
53 Cancer Centre Stage 2, Addenda 2 clarification is at page 757 of the Parish affidavit, under the heading 'Other Documents to be Submitted with Tender', in regard to the deletion of words from clause 1.7, and replacement with these words:
If applicable, the following information and completed documentation must be submitted on or before the date and time for lodgement of tenders: Tender Response forms TR1 to TR9 including supporting information of proposed key subcontractors and personnel.
54 The end question then is whether, taken as a whole, these addenda materials clarified or removed any mischief in respect of an erroneous
(Page 12)
- subcontractor impression that may have been created on 8 October 2009 at the briefing meeting.
55 The first tranche of addenda material does lean towards the suggestion that there can only be one subcontractor. But the second tranche of addenda material of 23 October seems to me to be completely equivocal. Read together with the alleged representation of 8 October 2009 (as it must necessarily be, in the case of the plaintiff), the second addenda material is perfectly capable of being reasonably interpreted as confirming, first that a price no longer needs to be nominated for the subcontractor in the form which used to refer to a price, and secondly, that provided each proposed subcontractor is submitted on an individual schedule, that this would be acceptable to the defendant. There are no express terms stating that there cannot be more than one subcontractor per area of work subject to each one being the subject of a separate schedule.
56 To adopt an analogy from defamation law, it seems to me, in circumstances of bain, that the antidote which is suggested by the defendant, which arose out of the written addenda materials after the meeting, was not strong enough to cure what previously occurred. I assess then, that there is a respectable basis for the plaintiff's argument that it was subject to a representation in the terms as asserted as at 8 October 2009.
57 Thus, contrary to the defendant's submission that the addenda materials clarified the position, I am not persuaded that the suggested antidote was sufficient to cure what previously occurred at the meeting, or at least was in sufficiently strong enough terms to disabuse the plaintiff, who thereafter went to the trouble of making its tender submissions on a basis of nominating more than one subcontractor with individual schedules for each subcontractor. On the defendant's argument, the plaintiff in so doing, had got the position as to subcontractors totally wrong.
58 The end question then is, has a serious question, which is only half of the interlocutory equation, been established? An evaluation of all the material at this point in time leads me to the view that the plaintiff has made a persuasive case for the representation it says it acted upon.
59 Therefore the plaintiff has established the representation, reliance and a manifest detriment - if it is eliminated from being a potential candidate for an award of a tender by reason of what appears to have been
(Page 13)
- an unfortunate misunderstanding as to what it could do in terms of the nomination of subcontractors in its tender submission.
60 The balance of convenience now needs to be considered in the equation, and of course, it is an interdependent criterion in regard to interlocutory relief. Moreover, the balance of convenience needs to be assessed as against the character of the actual relief that is sought by way of the interlocutory orders. As I have already observed, a substantial component of the interlocutory relief seeks mandatory orders, which are final in character.
61 I assess the balance of convenience on the basis of a mandatory order being logically anterior to the negative restraint under order 1. The positive relief is that the defendant be compelled by order of the court to evaluate the plaintiff's tender on the basis of being a conforming tender, provided that by the close of business, it nominates individual subcontractors.
62 I also need to evaluate the balance of convenience in the context of the interests of third parties, namely, the other tenderers, who presumably have complied and not been eliminated and the interests of the public of Western Australia in terms of having the best qualified tenderers evaluated in order to perform this very important work and at the best possible price.
63 I am also evaluating convenience in the context of a deadline of 21 December 2009 and a potential occurrence which should be avoided at all costs, namely that the favourable prices that the conforming tenderers are currently locked into may be lost to the defendant if an award of this contract(s) is not made within that deadline.
64 I also take into account the fact that it will take about two weeks from now for the plaintiff's tenders to be evaluated by the defendant (ie, assessed as conforming tenders), which counsel for the defendant helpfully pointed out to me. Consequently, as at 4 December 2009, if evaluation of the plaintiff's tenders is to occur at all, it must be in the next two to three weeks before 21 December 2009.
65 I am also cognisant of the fact that potential delay in accomplishing these important works at the Cancer Centre and PathWest Laboratory should be avoided at all costs. The patients who may be the recipient of those services also have an interest in a speedy outcome.
(Page 14)
66 However, I need to weigh up the plaintiff's interests as a potential candidate for an award of these contracts on the basis of its tenders being wrongfully eliminated from consideration, on its case.
67 It seems to me overall, that the plaintiff stands to sustain immeasurable loss and damage of an unquantifiable kind, if its tenders remain summarily ejected as nonconforming, on a basis of what appears to be an unfortunate misunderstanding in communication.
68 I am not so much moved by suggestions in the plaintiff's affidavit material that its reputation would suffer if it was evaluated as a nonconforming tenderer. Rather, I am more persuaded by the fact that if, in due course, a trial proceeds and it is established that the plaintiff is entitled to final relief directed to a situation which I have described as an unfortunate misunderstanding, that it would then be too late to effectively 'unscramble the egg'.
69 The plaintiff would be left with a claim for equitable compensation or statutory compensation under the Fair Trading Act. But how does one quantify the loss of such a chance? There is considerable legal authority, particularly the High Court's decision in Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, which deals with the quantification of loss of an opportunity. But it seems to me that it is a very difficult thing to do and there is a lot of guesswork involved.
70 On the other hand, what is the prejudice to the defendant if I order it to assess the plaintiff's tenders on the basis of one nominated subcontractor, and on the hypothesis that the plaintiff is a conforming tenderer? The very frank and helpful submissions of Mr Egan suggest that there is no real prejudice to the defendant in immediately embarking upon that evaluation. Therefore, it could be accomplished within about 14 days ie, before the 21 December 2009 deadline.
71 Overall, the balance of convenience viewed as an interdependent factor with a respectable, and probably better case that the plaintiff has established on its serious question, leads me to a view that there should be an award of mandatory interlocutory relief. The relief will require the defendant to evaluate the plaintiff's tender on the basis I have identified.
72 I also need, however, to deal with the question of negative relief as sought in terms of the restraint that the plaintiff seeks against any award of tenders.
(Page 15)
73 In my assessment, it is, as I have said, highly undesirable that the 21 December 2009 deadline for the award of tenders be lost or missed, with a consequence of potential loss to the defendant of favourable pricings from other tenders. It is also undesirable from the point of view of uncertainty for the other tenderers who have made their submissions and are anticipating a decision from the defendant in that time frame. Of course, any timing blow-out in the ultimate completion of either important project is to be avoided, if possible.
74 It seems to me then that the negative restraint sought by the plaintiff in its Minute requires some qualification. It seems appropriate that it should apply while the evaluation process is being considered.
75 What I propose is a variation of the Minute. Paragraph 2 of the Minute provides for mandatory relief requiring the consideration of the plaintiff's eliminated tenders.
76 However, it seems to me that there is also need for a third order in the following mandatory terms:
In the event that the plaintiff's tenders, after evaluation by the defendant against other tenders by reason of order 2, are evaluated as preferred or leading tenders, the defendant shall afford to the plaintiff the same rights and standing for it to be the subject of a potential grant of the award of contracts for the projects, as a fully conforming tenderer.
77 Orders 2 and 3 are made in their affirmative terms, with a view to that conduct being implemented speedily by the defendant, keeping in mind the 21 December 2009 looming deadline.
78 Further, I would then, on an interlocutory basis, restrain the defendant from making any awards, but with a temporal limit set upon that negative restraint, in that it only be applicable to inhibit the award of tenders until such time as the defendant has fully complied with order 2 and, if applicable, with order 3.
79 The rationale underlying orders in those terms is that the evaluation process under order 2 may see the plaintiff eliminated on its merits, in which case there would be no need for anything further to occur. It is only if the evaluation process under order 2 results in the plaintiff being assessed as the preferred or leading tenderer, that an issue will arise about the plaintiff's status as a nonconforming tenderer. I have addressed that contingency under order 3, by an order that the plaintiff is then to be afforded the same rights and standing, as if it had been a fully conforming tenderer.
(Page 16)
80 Of course, these orders are not meant to intrude upon a neutral evaluation of the merits of the plaintiff as a tenderer for either project by the defendant. The proposal essentially seeks to redress the plaintiff's present adverse position by its current elimination, it having been assessed as a nonconforming tenderer.
81 I have also framed order 3 essentially on a protective basis for the defendant, so that were other tenderers to complain or essentially challenge the actions of the defendant which I have imposed upon it by my orders 2 and 3 herein, that the defendant could respond on the basis that it is acting under compulsive orders of the court in its evaluation of the plaintiff's tenders or by acting towards the plaintiff under order 3 in according it the status of a conforming tenderer. It would then be for the defendant to take such steps in terms of the award of tenders as it sees fit, once it has complied with mandatory orders 2 and 3.
82 Therefore, the orders made are:
Upon the usual undertaking as to damages by the plaintiff:
1. Until judgment in this action or further order, the defendant whether by itself, its officers, servants, agents or otherwise be restrained and an injunction is hereby granted restraining the defendant from making any award of contracts upon the tenders it has received for each of the works at Sir Charles Gairdner Hospital for the Cancer Centre - Stage II Project and the QEII PathWest Laboratory Medicine WA - Stage I Project ("the Projects"), such restraint to be applicable only until such time as the defendant has complied with Order 2 and, if applicable, Order 3 of these orders.
2. The defendant by itself, its officers, servants, agents or otherwise is hereby ordered to forthwith include in its evaluation of conforming tenders submitted to undertake the works for the Projects, the tenders submitted by the plaintiff and on the basis of those sub-contractors to be nominated by the plaintiff by close of business on 4 December 2009.
3. In the event that the plaintiff's tenders, after evaluation by the defendant against other tenders under Order 2 herein, are evaluated as preferred or leading tenders, then the defendant shall afford to the plaintiff the same rights and standing for it to be the subject of a potential grant of the award of contracts for the Projects, as a fully conforming tenderer.
(further orders 4 - 8 not copied)
3
8
1