Australia: Get your tender in on time - but what is the time?

Last Updated: 25 February 2010

Tendering and procurement is becoming increasingly globalised. In this environment it is critical that owners become more sophisticated and disciplined in their approach to drafting the Request for Tender (RFT) document and more consideration needs to be given to issues that were once standard and seen to require little attention. These include the relevant time regime used for the deadline for the submission of tenders.

The recent case of Electricity Retail Corporation t/as Synergy v Western Australia1 dealt with the issue of the time for the submission of tenders and whether or not the tender submitted by Synergy was late. The central argument focused on the time regime applicable to the closing time in the RFT. On one interpretation the tender was submitted on time while on the other the tender was late and would be excluded from evaluation.

The issue of the closing time and the acceptance or exclusion of a tender was first considered in the landmark case of Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council2. This case was not only the first to establish the process contract in UK common law but also considered whether or not a tender was validly deemed late and therefore set aside from evaluation.

The Synergy Case – The Request for Tender

The Western Australian Government through the Office of Energy (the State) issued a tender for the supply of 26,000 megawatt hours of 'GreenPower' premium, accredited through the national GreenPower programme for the 2007/2008 financial year. The RFT provided that the closing time for tenders was 11.00am Thursday 6 December 2007 (Western Standard Time).

Part C clause 1.1(a) of the RFT conditions provided that, amongst other things, any offer which is not submitted before the closing time or is incomplete at the closing time will be excluded from consideration unless the tenderer can provide conclusive evidence of mishandling of the offer. 'Closing Time' was defined as the 'time and date specified on the front of this Request as the closing time'.

The Closing Date and Time

The closing date and time for the RFT was advertised in a range of places in addition to being included in the RFT itself. The first advertisement, placed in The West Australian Newspaper, noted the closing date and time as 'Thursday, 6 December 2007 at 11am'. However, a second advertisement in the same paper noted the closing date and time as 'Thursday, 6 December 2007 11.00am (WDST)'; WDST presumably being an acronym for Western Daylight Savings Time3. The RFT was also advertised on the Department of Treasury and Finance website with a closing date and time of 'Thursday, 6 December 2007 11am (Western Australian Standard Time)'.

Synergy gave evidence that it had not seen the two advertisements but had obtained information about the RFT from the Department of Treasury and Finance website, which they had been alerted to by a telephone call from an employee of the Office of Energy.

A non-mandatory briefing was held and a PowerPoint presentation containing information about the RFT was delivered. It included a slide entitled 'Tender Details' which stated:

'Tender Closes 11.00am, 6 December 2007 – Don't be late!'

A copy of these slides was included in an addendum issued by the State.

A second addendum was issued by the State extending the closing date and on which it was noted that the closing date was '11.00am Wednesday 19 December 2007 (Western Standard Time)'.

On 19 December 2007 at approximately 11.34am AWDT (summer time in Western Australia), Synergy lodged its tender at the specified address in Perth, Western Australia. On 27 December 2007, the State advised Synergy that:

  • Its offer had been received at 11.34am on 19 December 2007.
  • The offer had been received after the closing time, which had been specified as '11am Western Standard Time'.
  • Due to the above, Synergy's tender would not be evaluated.

The Process Contract and its Terms

The Court accepted that if Synergy had lodged its tender within the time specified by the RFT, a process contract would arise between Synergy and the State. The process contract, which was conceded by the State, would be a contract between Synergy and the State to the effect that, in consideration of Synergy preparing and submitting an offer, the State would evaluate and assess that offer in good faith and in accordance with the provisions of the RFT.

It was argued by Synergy that the evidence relating to the newspaper advertisements and material on the Treasury and Finance website should not be relevant. The State accepted that the newspaper advertisements or material contained in the Treasury and Finance website did not form or could not form part of the process contract. Rather it submitted that the material was admissible as evidence of extrinsic circumstances available to assist in the resolution of contractual ambiguity4.

The Court said that if the newspaper advertisements and website material were admitted to assist in the resolution of contractual ambiguity, it would have to be shown that these were objective facts known to both parties. The Court found that the terms of the newspaperadvertisements, and the assertions made on the website, are not objective facts of the kind that can be admitted as an aid to construction. At the most they are materials which have formed part of the process of negotiation between the parties. In the case of the newspaper advertisements, based on the evidence of Synergy, they were not known to Synergy and as a consequence this evidence was not admissible. In any event the Court found that the RFT was not ambiguous.

The Time Regime

In 2007, there were two time regimes in Western Australia:

  • Standard time – established by the Standard Time Act 2005 (WA).
  • Summer time – established by the Daylight Savings Act 2006(WA).

The RFT closed during the summer time. As a consequence the Court stated that the general effect of the Daylight Savings Act is to provide that over the summer period (as set out in section 4 of the Act), there is to be a time known as 'summer time' which is to be one hour in advance of standard time.

More specifically, section 7 of the Daylight Saving Act provides that during the period that summer time is in operation, a time specified in any act, contract, agreement, deed or other instrument is to be taken to be a reference to summer time unless the contrary is expressed. Both Synergy and the State accepted that the RFT and the process contract incorporating the terms of the RFT fell within the scope of a contract, agreement or other instrument for the purposes of section 7.

Therefore the question for the Court was whether a time, other than summer time had been expressed.

The Court found that the decisive reference to time in the RFT was found in Addendum 2, which specified that the closing time was to be '11.00am Wednesday 19 December 2007 (Western Standard Time)'.

The State argued that the relevant time regime was the time enforced in Western Australia at the time the tender closed, which was summer time. The State said that as the briefing was held at 10am on 9 November 2007, being summer time, the RFT as a whole should be construed as referring to summer time.

The Court however found that this submission ignored the 'plain and obvious' effect of the use of the words Western Standard Time when specifying the 'closing time'. The Court found that by stipulating the closing time as Western Standard Time the RFT clearly and unequivocally adopted 'standard time' as the time regime governing the RFT and, more importantly, the closing time. The fact that the request refers to summer time in relation, for example, to the time for the briefing, did not, in the Court's opinion, support the conclusion that the closing time should be construed as a reference to summer time. The Court said that if the authors of the RFT had intended the closing time to be summer time, they need not have said anything about the time regime to be adopted. By including the words Western Standard Time the RFT clearly adopted a different time regime.

The Court therefore found that Synergy's tender submitted at 11.34am summer time (which was 10.34am Western Standard Time) was submitted in accordance with the requirements of the RFT (ie before 11am Western Standard Time) and therefore should be evaluated by the State.

Time Regimes across Australia

Time regimes used in Australia vary depending on the location and time of the year. A whole range of acronyms can be and are used in tenders to note the closing time. For example:

  • AEST (Australian Eastern Standard Time) is used in NSW (except Broken Hill), Victoria, Queensland, Tasmania and the ACT.
  • ACST (Australian Central Standard Time) is used in South Australia, Northern Territory and Broken Hill NSW.
  • AWST (Australian Western Standard Time) is used in Western Australia.

AEST and ACST change and become respectively AEDT and ACDT during daylight savings periods. As stated earlier, daylight savings no longer applies in Western Australia.

Each state has its own legislation dealing with time regimes. The Standard Time Act 1987 (NSW) provides for both 'standard time' and summer time and, like its former Western Australian equivalent, the time regime is considered to be 'standard time' in a contract or agreement unless expressly stated otherwise.


This case is a useful reminder to ensure that the time regime noted on the tender is considered and, when determining whether or not to accept a late tender, due regard is given to the time regime in the RFT.

The discretion of an owner to accept late tenders differs depending on whether the owner is a Commonwealth Government entity or a state or territory government entity. The Commonwealth Procurement Guidelines are clear that late tenders will not be accepted (exceptin extremely limited circumstances). Various state procurement guidelines, on the other hand, including the NSW Procurement Guidelines, provide discretion in relation to the acceptance of late tenders.

It is important for those entities calling tenders to ensure that they are fully aware of the relevant procurement guidelines and the RFT conditions when determining whether or not to accept a late tender, as well as the relevant time regime.

This case demonstrates the importance of being consistent in referencing times and dates, both in the RFT and in advertisements and websites, to avoid ambiguity and, in this case, costly litigation.

It also highlights the risk in using standard RFT templates without thorough consideration of information which is considered to be standard such as references to dates, times and time regimes.

Finally the case serves as a lesson to those calling tenders, and to those responding, to be aware of the applicable time regime and, if uncertain, to seek or provide clarification before the closing date and time.

1 [2008] WASC 19
2 [1990] 3 All ER 25; [1990] 1 WLR 1195
3 Daylight savings was rejected by referendum in Western Australia in May 2009 but was still in operation at the time of this tender.
4 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.