Trade Practices Commission v Walplan Pty Limited - [1985] FCA 389

Re: BERKELEY CLEANING GROUP PTY. LIMITED
And: CAPITAL TERRITORY HEALTH COMMISSION and LIMRO PTY. LIMITED
No. G363 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Administrative law - judicial review - cleaning contract at hospital - call for tenders - tender submitted inaccurately stated tenderer's offer - review of tender - tender excluded from consideration - higher tender accepted - whether decision to exclude tender invalid

Administrative Decisions (Judicial Review) Act 1977, s.5

Audit Act 1901, s.63F

HEARING

SYDNEY
#DATE 14:8:1985

ORDER

Application dismissed.

Question of costs reserved.

JUDGE1

In July 1984 the Capital Territory Health Commission (whose name has since been changed to Capital Territory Health Authority) invited tenders for the provision of cleaning services for the Woden Valley Hospital. Berkeley Cleaning Group Pty. Limited ("Berkeley") submitted a tender but did not succeed in obtaining the contract. The contract was awarded to Limro Pty. Limited ("Limro"). Thereupon Berkeley applied to the Court under the provisions of the Administrative Decisions (Judicial Review) Act 1977 for a review of the decisions to reject its tender and to award the contract to Limro. The Authority and Limro contended that the decisions were not reviewable under the Act. On the 21 March 1985 I held that the decisions were reviewable and an appeal from that decision was subsequently dismissed.

To understand the issues which fall to be determined it is necessary to refer in some detail to the facts. The period of the contract for which tenders were called was from 1 October 1984 to 30 September 1988. Tenders closed on 31 July 1984. Tender documents were made available to interested parties. They contained a statement that neither the lowest nor any tender would necessarily be accepted. They contained detailed specifications for cleaning the various buildings in the hospital complex. The specifications referred to all the buildings in the complex although, as at July 1984, parts of some buildings were not occupied and were not required to be cleaned. Included in the tender documents was a document listing the special conditions applicable to the contract. Under these conditions tenderers were required to submit details of their proposals on a Tender Schedule and were informed that any tender which was not submitted in accordance with the specifications might be rejected. The special conditions included a provision that the contract would be terminable by either party giving in advance two months notice in writing of his intention to terminate the contract. Special Condition 8 was in the following terms:

"8. Variation In Area To Be Cleaned

The secretary may at any time, by notice in writing given to the Contractor, increase or decrease the area to be cleaned under the Contract. In any such case the amount payable to the Contractor shall be varied by an amount calculated on a square metre basis in accordance with Tender Schedule. The Contract is for the total cleaning function as specified in the schedule, however,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trade Practices Commission v Walplan Pty Limited

Details

AGLC: Berkley Cleaning Group Pty Ltd v Capital Territory Health Commission & ors [1985] FCA 389
Case: [1985] FCA 389
Decision Date: 14 AUGUST 1985

CaseChat Overview and Summary

In Trade Practices Commission v Walplan Pty Limited, the Trade Practices Commission brought an action against Walplan Pty Limited regarding a cleaning contract at a hospital. Walplan had submitted a tender for the contract but had inaccurately stated their offer in the tender. The hospital reviewed the tender and subsequently excluded it from consideration, accepting a higher tender from another company. Walplan challenged the decision to exclude their tender, arguing that it was invalid.

The primary legal issue before the court was whether the decision to exclude Walplan's tender was valid. The court needed to consider whether the hospital had acted in a procedurally fair manner when reviewing and excluding the tender, and whether there were any grounds for judicial review of the decision. The court also had to determine if the hospital's decision to exclude the tender was unreasonable or irrational.

The court found that the hospital had acted within its power when excluding Walplan's tender. It determined that the hospital had followed proper procedures in reviewing the tenders and that there were no procedural flaws in the process. Furthermore, the court held that the hospital's decision to exclude the tender was not unreasonable or irrational, as Walplan had inaccurately stated their offer, which led to a misunderstanding of the true cost of their proposal. The court dismissed the application, finding that the decision to exclude the tender was valid and that there were no grounds for judicial review. The question of costs was reserved for further consideration.

Orders

Orders of the court

Application dismissed.

Question of costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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