6 June 2024

Company ordered to pay $1.5m for trying to rig National Gallery of Australia tender

| Claire Fenwicke
National Gallery of Australia building

The Federal Court found a company’s sole director tried to bribe a competitor to rig a tender process for work with the National Gallery of Australia. Photo: National Gallery of Australia.

A building company has been ordered to pay $1.5 million after its sole director tried to rig a National Gallery of Australia tender while at a coffee meeting.

The Federal Court also ordered Delta Building Automation Pty Ltd’s director Timothy Davis to pay an additional penalty of $120,000.

The Australian Competition and Consumer Commission (ACCC) launched civil proceedings against the business and Davis in May 2021, accusing him of attempted cartel conduct over the tender to replace and maintain a building management system at the ACT-based gallery.

In August 2023, the court found Davis, on behalf of Delta, tried to bribe the general manager of a competing business in exchange for agreeing to rig bids (also known as collusive tendering) in the 2019 tender process.

The general manager rejected Davis’ offer, later telling his wife: “He’s offered me bloody money.”

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The court also made orders restraining Delta and Davis from communicating with any competitors about tenders for building management systems in Canberra for three years.

ACCC Commissioner Liza Carver said any attempt to bid-rig amounted to a “serious breach” of Australia’s competition laws.

“This conduct in this case is particularly concerning, as it involved a tender for works being paid for with taxpayers’ money,” she said.

“This case should be a strong reminder to all businesses that engaging in any form of cartel conduct, including attempts that do not ultimately succeed, can lead to severe consequences.”

Delta must now also implement a Competition Law Compliance program and pay the ACCC’s legal costs.

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The ACCC can take civil cartel proceedings to the Federal Court, or refer serious cartel conduct to the Commonwealth Director of Public Prosecutions (CDPP).

It has an immunity program for past or present cartel members to confess their actions and cooperate with investigations in exchange for immunity from civil cartel proceedings brought by the ACCC and criminal cartel charges laid by the CDPP.

Anyone who thinks they may be involved in cartel conduct can call the ACCC Cartel Immunity Hotline on (02) 9230 3894. They can also report cartel conduct by using the anonymous cartel portal.

Public procurement officials who want to know more about detecting cartels can contact the ACCC Cartel Outreach team at carteloutreach@accc.gov.au.

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