International Construction Law Review
THE TENDERING LANDSCAPE IN AUSTRALIA
ANDREW CHEW
Partner, Baker & McKenzie, Sydney, Australia
GEOFF WOOD
Partner, Baker & McKenzie, Sydney, Australia
Over the past few decades, Australia has experienced a resources boom and enjoyed increased investment in public infrastructure and resources infrastructure. This has attracted interest from international contractors, suppliers and operators from Europe, Asia and North America in bidding for projects in Australia.1
The recent cancellation of the Sydney Metro Project did not come as a total surprise to bidders on the PRI and IMO packages. It does, however, raises questions about the tendering landscape in Australia, including sovereign risk issues. Tenderers were quick to call for compensation in relation to the cancelled tendering process.2
It is useful to understand what an owner’s (whether a public infrastructure owner or a private company) and the bidders’ rights are in relation to the tendering process in Australia. The recent Supreme Court of Canada decision in Tercon Contractors Ltd v. British Columbia (Transportation and Highways)
3 (Tercon Contractors) on exclusion of liability also reminds us that the area of tendering process law is still developing in common law jurisdictions.
This paper sets out an overview of the legal issues and recent developments in Australia.4 The paper covers the following areas:
- • legislative framework for procurement in Australia; and
- • contractual framework for tenders.
In Australia, procurement processes can be managed through the traditional tendering process (via Requests for Tenders) or a multi-staged process for more complex or larger projects which may include expressions of interest, requests for proposals, and best-and-final offers (BAFOs).
1 As an example, in March 2010 there were over 16 overseas contractors and four local contractors forming six consortiums to submit EOIs for the Gold Coast Rapid Transit Authority Project.
2 “Leighton Holdings CEO Wal King warns NSW Premier Keneally over Metro”, The Australian, 12 February 2010.
3 2010 SCC 4.
4 Commentary on other common law jurisdictions is provided where relevant.
Pt 2] The Tendering Landscape in Australia
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