In Ipex ITG Pty Ltd (In liquidation) & Takapana Investments Pty Ltd v State of Victoria  VSCA 201, the Victorian Court of Appeal was considering a claim by an unsuccessful tenderer for a contract for the provision of ‘system integration services’ for the Parliament of Victoria. An evaluation plan had been prepared but not distributed to tenderers. Ipex’s tender had been assessed as not demonstrating a good understanding of what Parliament was seeking under the project, and not representing value for money albeit that its tender price was low (Ipex’s tender price was around $2.8 million compared to the winner’s price around $7.8 million), and removed from further consideration.
The trial judge held, and on appeal it was common ground, that there was a binding contract (‘the tender process agreement’) between Ipex and the respondent the express terms of which were contained in the Request for Tender (RFT). Ipex’s primary claim was for damages for breach of that contract.
The Court of Appeal concluded:
- The method of evaluation identified in the RFT was, in fact, followed by the government.
- The requirement that price be kept out of the process until the “final decision point” was followed in that the price comparisons were left until the already assembled qualitative assessment and price comparisons were available to the evaluation team. (Even if this was wrong, this should be read in the context of the government not being bound to accept any tender.)
- The evaluation, albeit involving subjective business judgments, had been objectively evaluated. This was not to be a “purely arithmetic exercise”.
- The trial judge had correctly assessed the misleading and deceptive conduct case, being based on the dismissal of the breach of contract claims, that claim being based on the same claimed departures from the RFT case.