Procurement Law

Procurement law in this context, is predominantly a mix of legislation, contract law and case law. The Commonwealth Procurement Guidelines are entrenched in section 105B of the Public Governance, Performance and Accountability Act 2013 (Cth). These guidelines are the legislative basis of procurement in the Australian federal government and includes but is not limited to:

- Government Procurement (Judicial Review) Act 2018 (Cwth)

- Privacy Act 1988 (Cth)

- Auditor General Act 1997 (Cth)

- Archives Act 1983 (Cth)

- Crimes Act 1901 (Cth)

The aforementioned legislation governs how procurement is undertaken, reported and evaluated in the Australian federal government. In addition, there are significant procurement cases, that include but are not limited to the following:

- Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1

Mr Hughes sued for breach of contract, estoppel, negligence and misleading conduct. This case highlights (amongst other things) why the conduct of tender processes must be undertaken with maximum care.

- Walton’s Stores (Intestate) v Maher (1988) 164 CLR 387

The main theme was estoppel which is the enforcement of a promise even though written documentation (Eg a contract) of the promise may not exist.

- Amann Aviation Pty Ltd v Commonwealth (1991) 174 CLR 64

The main themes include the Federal government’s apparent failure to properly manage the contract and to follow contracted terms.

Procurement law relies heavily on contract law. Contract law in the procurement context has two branches which are formation of contract and enforcement of contract.

The federal government’s unique position means certain doctrines apply including but not limited to:

- Privity

- Executive necessity; and

- moral exemplar.

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