This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its August 2012 decision in Wagdy Hanna and Associations Pty Ltd. v. National Library of Australia, the Supreme Court of the Australian Capital Territory dismissed a breach of confidence claim brought by a losing bidder after finding that the government did not use the losing bidder’s information in the resulting construction contract. The case dealt with a tender call for the construction of a government archives facility. A losing bidder brought a breach of confidence claim against the government, alleging that confidential business information from its bid was inappropriately used by the government and the successful competing bidder in the construction of the new facility. The case turned on the shelving configurations used in the new building and whether those designs were appropriated from the losing bidder’s proposal. The Court ultimately concluded that there was no evidence that the design of the shelving was taken from the complainant’s proposal, since both the layout of the shelves and height of the shelves could have been arrived at independently by other bidders given the overall configuration of the building.
As the Court noted, given the configuration of the building, the proposed shelving layout was similar across multiple bidder proposals:
Thus, what was common was that there were in both plans 20 rows of double-sided straight-line shelving units. This is hardly surprising. That is entirely what would be expected. Indeed, it is difficult to conceive of another form of layout: a circular layout, as in the State Library of Victoria, or circular bays as in the library of the Supreme Court of Victoria may be more aesthetic, but is hardly as serviceable and efficient for what is a storage facility to which the public are unlikely to have access. Rows of shelves is the almost inevitable form of the facility. All of these short-listed tenders proposed that.
Furthermore, the Court ruled that the height of the shelving units could have also been arrived at independently of the complainant’s proposal due to the overall building designs:
The height of the proposal in the plaintiff’s tender was 7500mm; the height of the shelving installed in the building as constructed was 7225mm. They were not the same. It seems that the plaintiff says that his proposal to put shelves above standard height was his own idea. That is not so; as noted above (at [35]), the defendant had itself contemplated a higher height than the standard 2.1m and, as Ms Smith said in her evidence quoted above (at [82]), the defendant had already done some research into this.
The Court therefore concluded that there was no evidence that the government appropriated information from the losing bidder’s proposal and used that information in the construction of the archive facility.
As this case illustrates, public institutions are under a duty to protect the confidential business information contained in a bid. However, not all information in a bid constitutes confidential bidder information. Ultimately, since multiple parties may be able to independently arrive at the same or similar approaches to performing a contract, the onus remains on the party asserting a breach of confidence claim to prove that the information contained in its bid was inappropriately used by other parties.
