Authorisation

An local government officer needs to be aware of the scope of his or her authority. Does what the officer proposes to do require specific authorisation from Council or the CEO? That is not likely to arise in a tender situation, but may well do so where goods or services are being contracted for without going through the formality of a tender.

At a pinch, it may be possible to rely upon an implied authority, but that should be regarded as a last resort. In the case of Columbia Holdings v. City of Armadale (2012), Justice Pritchard had to consider whether a Ranger for the City of Armadale, who was also a Bushfire Control Officer for the City and an experienced volunteer Firefighter, could issue a Notice under the Bushfires Act 1954 without specific authorisation to do so from Council or the CEO.

Justice Pritchard had no difficulty in holding that there was necessarily an implied authority under the terms of the Bushfires Act and the Local Government Act 1995 to issue the Notice. By virtue of his duties, the officer concerned was apt to be described as a "duly authorised officer" of the City and did not therefore require a delegation.

Amalgamations and Boundary Changes

The process of wholesale amalgamation and boundary changes is striking local governments like a bolt from the blue and poses significant probity questions in relation to tendering. What would be the situation, for example, if there were an outstanding tender for work to be done by a local government in an area which may well be excised?

In that situation, persons interested in tendering will almost certainly be aware that the work proposed is likely to fall within the budget of another local government if it has not been performed before the deadline is reached. At this stage, neither the existing local government nor the potentially incoming local government will be sure where the new boundary will be located although there does not appear to be much of a mood for compromise so far as the state government is concerned.

A possible approach might be for the local government to notify likely tenderers that, owing to circumstances beyond its control, the tender deadline will have to be significantly increased and there will be a "stop/go" date at which point the local government will indicate when the request for tender will have to be withdrawn or will in fact proceed.

This demonstrates procedural fairness to contractors who might otherwise either go to the trouble of completing a tender, only to find the work is completely wasted, or alternatively might not provide a tender, only to find the job ultimately goes ahead.

An alternative approach in the case of a tender not yet issued, would be for both potentially interested Councils to call identical tenders, each containing a note that a contract will not be issued in the event of the site for the work leaving the jurisdiction of the local government. In that situation, a tenderer could lodge identical tenders with both. In practice, it might be difficult to achieve the necessary degree of mutual action between Councils.

Other issues confront a Council which is told that its local government is going to be replaced by a Commissioner as part of a super municipality, along with others, with a view ultimately to a new Council of the municipality taking over the task of representing the residents. It seems probable that whatever the form of takeover contemplated by the government, the amalgamation super municipality will acquire the assets, liabilities, obligations and entitlements of the constituent local governments, so there would seem to be no real reason why tenders in that situation should not proceed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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