In Ipex ITG Pty Ltd (in liq) v State of Victoria [2010] VSC 480, the Supreme Court (Sifiris J) was considering a claim by an unsuccessful tenderer that the Victorian government had breached its contractual duty in relation to the evaluation of tenders for the Parleynet project in 2003. His Honour reviewed the authorities and concluded:
1. Each tender must be considered on its own facts, including the tender and/or related documents, and the relevant context and circumstances, to determine whether there is any intention to create an immediately binding contract as to process.
2. The courts have been more inclined towards finding a contract had been made in relation to the “tender process” where a timeline and detailed process, including evaluation criteria, are set out in the tender documents in a way consistent with such a promissory obligation to follow that timeline and process.
3. In this instance, the RFT was intended to be a legally binding contract as to process, including detailed evaluation criteria , rather than simply a document that provided relevant information. The RFT contained detailed evaluation criteria that Parliament said “will” or “must” be applied, suggesting a “commitment, promissory in nature, to abide by a process particularly in relation to the evaluation of tenders”.
His Honour concluded that, in this case, there had been no breach of that tender process contract.