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
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be withdrawn or will in fact proceed.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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