Tendering for government business: Process contracts, good faith, fair dealing, and probity

The recent conviction of former Queensland Minister of State, Gordon Nuttall, for awarding $3.6 million in building contracts to associates in exchange for kickback payments, presents a timely reminder of the susceptibility of government procurement processes to corruption. This article draws together the contract law cases following Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151, which have continued to come before the courts, notwithstanding the adoption of apparently strict rules for tendering and procurement throughout Australian jurisdictions. The article examines remedies for aggrieved tenderers under administrative law, trade practices legislation, and also estoppel. The article will assist not only government lawyers, but also private practitioners advising government, or advising commercial entities tendering to government. Some of the material is relevant to private commercial tenders. The conclusion also makes best practice suggestions for governments involved in tendering.