Question 1 (20 marks) Part A
The City of Salisbury places the following invitation for tenders on the South Australian Government Tenders & Contracts website:
Community Building - Salisbury Swimming Pool
The City of Salisbury invites organisations (‘Tenderers’) to submit tenders for the project described in this Request for Tender (‘RFT’). In partnership with the construction industry, the City of Salisbury strives for excellence in the delivery of its projects to the South Australian community.
Request for Tender LW 15/2023 - Community Building - Salisbury Swimming Pool.
Council requires submissions for the demolition of an existing building and construction of a new Swimming Pool Utilities Room, Changeroom, Lifeguard Tower and Cafe as part of the Salisbury Swimming Pool - Lot 5 Samsung Street, Salisbury.
All submissions must be lodged via the SA Tenders and Contracts website by 5pm Wednesday 31 April 2023.
In response to this invitation, Built Construction Pty Ltd (Built) lodges a fixed price lump sum tender of $2.5 million at 4.40pm on 31 April 2023. Built’s tender contains the following conditions:
This tender is valid to 5pm on 29 June 2023. Acceptance to be in writing by post sent to our head office address.
Public liability insurance will be provided to the value of Ten (10) million dollars.
Contract security will be provided in the form of an unconditional bank guarantee to the value of 5% of the contract sum.
Built’s liability for any damages in connection with the contract is to exclude liability for consequential losses.
Four weeks after Built submits its tender, a second wave of COVID-19 cases occurs in South Australia which leads to the SA Government announcing a lock-down period of 10 days. Concerned about the uncertainty that the second wave could cause in the construction labour and materials supply chains, Built sends a letter by registered mail to the City of Salisbury on 28 May 2023 stating:
This letter arrives at the City of Salisbury’s offices on 30 May 2023. On 29 May 2023, the City of Salisbury mails a letter to Built stating:
The City of Salisbury’s letter arrives at Built’s head office on 1 June 2023.
Advise whether a contract has indeed been formed between Built and the City of Salisbury for the carrying out of the works for the Salisbury Swimming Pool.
Note: Your answer should consider and identify all relevant events (e.g. invitations to treat, offers, counter-offers, revocations, acceptances etc.) and dates.
Some three weeks later after the lockdown period has ended, COVID-19 cases are contained, the threat to public health subsides and social distancing restrictions relax. Built now wants to reinstate the deal to carry out the works at the Salisbury Swimming Pool. On 25 June 2023, Built sends an email (to the email address designated by the City of Salisbury) which states:
Due to the disruption caused by the recent lockdown, however, the email was not read by a City of Salisbury employee until 28 June 2023.
On 27 June 2023, the City of Salisbury had entered into a contract for the lump sum price of
$2.58 million with ProGreen Construct Pty Ltd to carry out works for the demolition of existing building and construction of a new Community Building as part of the Salisbury Swimming Pool.
On 29 June 2023, the City of Salisbury emails Built to inform them that the contract has already been awarded to another contractor.
Built asserts the City of Salisbury is in breach of contract and threatens to take legal action.
Advise whether a contract has indeed been formed between Built and the City of Salisbury for the carrying out of the works for the Salisbury Swimming Pool and, if so, whether there has been a breach of this contract by the City of Salisbury.
Note: Your answer should consider and identify all relevant events (e.g. invitations to treat, offers, counter-offers, revocations, acceptances etc.) and dates. You should ensure your answer refers to relevant provisions of the Electronic Communications Act 2000 (SA).
Question 2 (20 marks)
On 23 March 2020, Wholers Construction Pty Ltd (the head contractor) entered into a head construction contract with Gray Investments Pty Ltd (Gray) to construct a $15 million warehouse and office building in Glenelg, South Australia.
On 13 March 2020, Wholers wrote to Backer Civil Pty Ltd (Backer) – a piling and foundation specialist trade contractor – inviting them to submit a quotation for ground treatment and piling works at the warehouse and office building in Glenelg. Documents were enclosed with the letter, such as a site plan layout and copies of the borehole logs. The letter stated that the subcontract would be let on the basis of an amended AS 4901 Standard Form of Subcontract although the amendments were not detailed in the letter.
Backer replied in a letter dated 21 March 2020 enclosing its quote for the work in the amount of $1,365,850 plus GST. The letter stated:
Our offer comprises this letter, together with our Standard Terms and Conditions of Contract, our Bill of Quantities and attached appendices A, B, C and D, the FPS Schedule of Attendances, Ground Improvement Protection Document and Completion Certificate.
We trust that our offer is of interest. Any works undertaken shall be carried out under our Standard Terms and Conditions. Our Standard terms and Conditions are to prevail over any other terms and conditions in any subsequent order.
Backer’s standard terms and conditions were attached to the quote.
On 9 April 2020, Wholers sent a purchase order to Backer instructing for the works to be carried out as per Backer’s quote in the amount of $1,365,850 plus GST. The following statement was included on the purchase order:
The ground treatment and piling work to be based on an amended AS 4901 subcontract conditions. Amendments as per the special conditions of contract attached to this order.
Please acknowledge this purchase order by signing and returning to us the acknowledgment slip below. A formal contract incorporating the attached special conditions will then follow in due course for execution.
At the bottom of the purchase order was a tear-off acknowledgement slip which contained a space for signature by Backer under the words "We hereby accept your order on the terms and conditions stated therein."
A copy of Wholers special conditions was attached to the purchase order.
Upon receipt of the purchase order, Backer signed the acknowledgement slip and returned it by registered mail to Wholers head office.
Backer commenced works at the Glenelg site on 16 April 2020. The ground treatment and piling works were completed at the end of May 2020. No formal contract for the works was ever sent by Wholers to Backer.
Practical completion of the warehouse and office building was achieved on 22 March 2021.
In November 2021, the sub-tenant in occupation of the warehouse and office building complains of settlement of the slab beneath the warehouse which had caused significant structural damage to the building. Gray commences litigation against Wholers to recover damages. Wholers, claiming that Backer’s poor workmanship caused the
settlement, obtains the court’s permission to join Backer as a co-defendant in the law suit. Wholers relies on Clause 11 of their Special Conditions which states:
"Clause 11: Liabilities and Insurance
The Subcontractor shall maintain insurance and indemnify Wholers Construction Ltd against liability at law for death or injury to persons or loss of or damage to property (including consequential loss flowing therefrom) arising out of the performance of the Subcontract."
Backer relies on Clause 12 of their standard terms and conditions which states:
"Clause 12: Warranty, limitation of liability and notice of complaint
During the court case, Backer argues that it is not liable for any of the damages caused by the settlement of the slab beneath the warehouse for two reasons:
Advise whether Backer is likely to be liable for the damages caused by the settlement of the slab beneath the warehouse. Your answer should address the two arguments raised by Backer in (i) and (ii) above.
When answering Q2, it is recommended you research and refer to the following court decisions:
Butler Machine Tool v Ex-Cello Corp  1 WLR 401
Hyde v Wrench (1840) 49 ER 132
Immingham Storage Company Ltd v Clear plc  EWCA Civ 89
Tekdata Interconnections Ltd v Amphenol Ltd  EWCA Civ 1209