GOVERNMENT CONTRACTING – MANAGING RISKS Presented by Colin Hackett – Crown Solicitor’s Office Crown Solicitor’s Office 11 April 2007

 Example of estoppel  Metropolitan Transport Authority v Waverley Transit Pty Ltd (1991) 1 VR 181. Estoppel

  Independent Commission Against Corruption Act 1988   South Australia has no equivalent legislation   What is corrupt conduct? Legislation against corruption

 NSW ICAC investigations  Government Board in NSW  Warrants executed ICAC investigations

Conflict of Interest (South Australia) “6ZA – Duty of employees with respect to Conflict of Interest (1) If a public sector employee has a pecuniary or other personal interest that conflicts or may conflict with the employee’s duties, the employee must disclose in writing to the relevant authority the nature of the interest and the conflict or potential conflict.”

High Court of Australia   Hot Holdings Pty Ltd and Creasy (2002) HCA51   Two Officers of the Minister’s Department “involvement” Decisions

Full Court of the Supreme Court of Western Australia Findings   Appeal to the High Court of Australia   High Court findings Decisions

Probity & Conflict of Interest  Auditor-General (SA)  Procurement Process

Implied Government Guarantee Pitfalls and Risks of the Process

Moral Correctness  Justice Selway QC  Implied guarantee  Ash Wednesday 1980  Heathfield Dump  Findings

InSkill SA  “Tenders will only be accepted from tenderers registered with InSkill SA and any offers received that do not include details of registration with InSkill SA will be regarded as non-conforming tenders.”

Negotiation Risks  Seddon  Law of Tenders  Pre-award contract

Subject to Contract  Seddon  Drift into a contract

Implied Government Guarantee  Justice Selway QC  Risks to Government  Application of the implied guarantee