4 ' 24 Be Q° ens oy CATCHWORDS ADMINISTRATIVE LAW - tenders called by Department of Administrative Services - whether applicant entitled to reasons for Department's failure to recommend it as successful tenderer - whether administrative decision - whether decision "under an enactment". Administrative Decisions (Judicial Review) Act 1977 s.13 Audit Act, 1901 Finance Regulations. reg.52 A.B.&.COPTERS PTY. LIMITED v. THE SECRETARY OF THE DEPARTMENT OF ADMINISTRATIVE SERVICES No. G142 of 1984 Fox J. Sydney 17 June 1985 wala miaby yee 88 ahs coe Oe ee ere tres oa a wove by ia Poe ab ont ' ay el et Feld a _ IN THE FEDERAL COURT OF AUSTRALIA Zoe pyaby & re, a - Th i RE At a nas - me et NEW SOUTH WALES DISTRICT REGISTRY No.G1l42 of 1984 See GENERAL DIVISION BETWEEN : A.B.E.COPIERS PTY. LIMITED Applicant AND: THE SECRETARY OF THE DEPARTMENT OF ADMINISTRATIVE SERVICES Respondent MINUTE OF ORDER JUDGE MAKING ORDER: Fox J. DATE OF ORDER: 17 June 1985 WHERE MADE: Sydney. THE COURT ORDERS THAT: 1. Tre application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Selllement and entry of orders is dealt with in Order 36 of the Federal Court Rules. TIER ey geet oe + . - » * re ' wows ' « - «~ GE ee ea Ta it ots Meggett teem ee mem ° TR Can? > - c . : a wee te Le a Lh ed ee ee ee ee . ee aka - a ot ~ A & ') oo IN THE FEDERAL COURT OF AUSTRALIA ) Ho ) 4 NEW SOUTH WALES DISTRICT REGISTRY ) No. G142 of 1984 } ) . GENERAL DIVISION ) BETWEEN : A.B.E. COPIERS PTY. LIMITED Applicant AND: THE SECRETARY OF THE DEPAPTMENT OF ADMINISTRATIVE SERVICES Respondent CORAM: FOX J. DATE: REASONS FOR JUDGMENT FOX J. In this case the applicant seeks a declaration under ; sub-secn.13(4A) of the Administrative Decisions (Judicial Review) Act ("the Act") 1977 that it was entitled to make a request to the respondent for a statement of reasons and other matters : referred to in sub-secn.13(1) of that Act. The respondentt * ay1 ra Tew eee Me RTS Te ora epem ne me cemeare NT Fee STESms eremnermmemnennn epee me mn een rman emmy mm come pega a —aeencg ee eer rey ste ~ - - -ae oe, ety witlle g . . + aly aN oy ee tas . . . .- te ee a EE seer fe Sati EN 4 ee un pe, ee a submits that the request was not competent, as being outside the ee terms of the sub-section. ras) ar ware See arta The sole question is whether the decision to which the request related was made "under an enactment" within the meaning of that phrase in the definition of "decision to which 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, 8 and 9, a recommendation expressed in the following terms: "11. RECOMMENDATION: That approval be granted to arrange period contracts with the undermentioned tenderers for the purchase ef Photocopiers ko Australian Government Departments and Authorities for a one year period from date of acceptance with the Commonwealth reserving the right to an option to extend for a further one year period. Oce Reprographics Ltd. Items 2. 3 and 8 ' ABE Copiers Pty.Ltd. Ttem 1 ' Nashua Aust.Pty.Ltd. Item 9 Remington Office Machines Pty.Ltd. Item 6 NOTE: Remington acceptance subject to agreement on offset." Item 10 was necessarily linked with item 9, and approval in relation to it was qranted on the same day. Items 4, 5 and 7 were - not covered by the recommendation as technical evaluation of them "Ley me x vhertar Se eed BP oad vee ' ee Beene eee Tn itl yf ' 1 vee fen * 8 re teats wate = ne 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 officer of the Department in the following terms: . MINUTE "3 ...Your approval is 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 "T seek your approval of the recommendations herein for items 3 and 4at a total estimated expenditure of . $400,000 per annum." poet Latte The request under s.13 of the Act related to items 2, 3, 4, 8 and 9. The applicant had heen 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 being those under which 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 III of the Finance Regulations made under that Act and (b) reqn. 52 of the Finance Regulations. Rn te Rr ne me en ee = er. ORT ae en I ee ee ee ee re ee = xT = aed awe wo kh 7 es a "t4 "4 nee ¥, aa ed a Saree See ee ; : wat af tg ettone st BE hee Oe - ERS ew a eh tt tte ee - --- -—- I think it was by way of distinguishing other cases, including cases decided in this Court, that counsel for the applicant submitted that the acceptance of the tenders did not involve the making of a contract, and that the documents it was intended to prepare would not, when executed, constitute a contract. Re Webster (1975) 132 C.L.R. 270 was relied upon. In that case, there was a question whether there had been.a contract with the Commonwealth for the provision of stores. After a close examination of the documents Barwick C.dJ., sitting as a Court of Dispurad Returns, held that there had been no agreement. At "Having examined the documents, and particularly having regard to the several conditions they contain, I am clearly of opinion that no standing or continuing agreement was created by then. The offer, in my opinion, was no more than an offer to accept and fulfil orders given during the period contemplated and within the specification of the quotation. assuming it not to have been revoked before the order was received. It 1s evident from the terms of the documents that the offer to supply made by the company was not accepted by the Department until a specific order for timber was given. The documents are express on that point. The indorsed conditions also make it plain to my mind that the Department could choose to order any part of tuts requirements from other suppliers. It did not become bound to order. There was therefore no continuing contract between the company 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 with 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 qoods to which the documents relate are ordered. — ~ - ~~ « ro MOE FO Ne Inn ape ne DS Se te To ee Ee oe Rage res of fy aS or Hla yy Ned on EL AL anne aa ehY! saan o Fa Although it was anticipated that there would be something in the nature of a "standing" or "overall" agreement, allowing for goods 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 under an obligation to order any "Specific quantity" of goods. The documents made many detailed provisions qoverning the supply of what it was expected would be ordered. . The entering 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 being done was preliminary to the making of a possible contract or contracts; tenderers were indicating acceptance of pro-forma terms on which they would be willing to supply. The argument turns to look directly at the tender operation itself. It is said in effect that as the procedure governing the manner of entering unto contracts by the government is, to a greater or less extent, presribed by statute and regulations, a decision to accept a tender, or to reject one, is made under that legislation. 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 failure to observe the enactments is at present pointed to. although it is doubtless hoped or expected that some invalidating circumstance affecting the decision will appear from an answer to the s.13 Loe a eee ee Pe ee ene a Ry Rr pee ne tee mene scene ee wee oe peaniies . . t bata te th - Taiat We Pay TRE ey & F ~ . ha BO TE Fn DT Lt al te ne ete — — —— = —y onda! aq a) eh the & onnt Sant a eee he Le request. Part V of the Audit Act contains general provisions dealing with the expenditure of Commonwealth moneys and in mv 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: "S52.(1) Subject to any Act making provision with respect to contracts for supplies and subject to the next succeeding 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 invited for those supplies.! (A subsequent amendment has increased the amount to $20,000). The "next succeeding regulation" is reqn. 52AA and it does not apply in the present case. It is not disputed that reqn. 52 relates to contracts for supplies such as were anticipated by the tenders called for. The principal document which went out from the Department was entitled "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 notified in writing. The subject contracts were to be "Period Contracts" and in that connection clause 10 of the document provided: "10. PERTOD CONTRACTS: Where tenders are invited, not Perce mer te ae emerson etre par prem me ee eet eee awe - ' - '- earth Gy re ty Fe . * o re ' x tee ae - 'oy te ren ora rr mer Op 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 Condition No 1 of General Conditions (Contract form 'A')." Clause 19 was in part as follows: "19, ESTIMATED REQUIREMENTS > Because reasonable estimates of the number of machines likely to be purchased are not readily available, 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 machines." 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 procedure adopted, if correctly done, would be a compliance with reqn. 52 so far as concerned any contracts subsequently entered into. This then leaves a fairly fine point, - was the acceptance (or non-acceptance) of tenders done under the regulation? I do not think that the fact that the statutory obligation is expressed in negative terms is a critical matter. Plainly, a power or duty can be implied from a prohibition. However, the prohibition in the present case is against contracting (or placing orders) without inviting tenders. Tenders were invited. and the decision Lo call them, and the manner of calling them are not under challenge. Decisions about Ta ae Atte ace Tee. = . . Rita t ag Pa tle aad ~ * "7 ft o % . : oo Nt . . tye tk ho ae tt ae ES pe : woos EP a En eee wee ee ~ we sue -ay io a ae my om 8. . accepting them, or some of them, travel outside the range of regn. 52, and move into the area of preliminaries to contracting. . I am therefore of the opinion that the declaration should be refused, with costs. a ne oe > ss-4or4 "Fog . roam olf : . —_— Lig divine Fox a ' { Bee te ee? 'reeds /7 Tone /96S Pee Ne we SE Fr eta arene RN me tn an sername ne ne terme a ep me ee