Government Contracts: Federal, State and Local

Overview

Government Contracts 4th edition is a further maturation and refinement of a work that has now been in existence for some thirteen years. It is Australia's definitive legal text on all levels of government contracting, which focuses on the legal issues that may arise in connection with government contracts and which have no parallel in the private sector. It explains the law in a manner that government contract managers and their private sector counterparts doing business with government, will find indispensable. Presented in plain English it is also accessible to the lay reader and lawyers and law students will also benefit from the up to date case law, relevant policy developments and legislation relating to government contracting (principally procurement). Authoritative and respected Government Contracts has been referred to in a number of cases, both in State and Federal courts in the High Court and in government policy documents. New material in this 4th edition includes: The implementation at Commonwealth and at State and Territory levels of Chapter 15 (government procurement) of the Australia-United States Free Trade Agreement. Implementation measures are discussed in Chapter 1 and the practical consequences of the new procurement regime are explored in Chapter 7 on tendering. Issues of government immunity from legislation take up a substantial portion of this new edition, at the general level in Chapter 4 and in particular application to the all-important Trade Practices and Fair Trading legislation in Chapter 6. Chapter 6 also includes a new table showing how this legislation applies to government at all levels. The current status of derivative immunity following the High Court's decision in Baxter. Discussion of the status of contracts made by regulatory bodies to settle alleged breaches of relevant legislation by the regulated entity. Whether government can promise to compensate a company for taxes it has had to pay . A discernible trend toward not allowing failure to follow legislation to result in an underlying transaction being invalid. Treatment of tendering in Chapters 7 and 8 covers new Australian case law and a succession of cases from other countries with similar legal systems to Australia, in particular Canada. As always with Seddon's work, a careful re-consideration of every aspect of the book has been undertaken providing clarity and comprehensive sources for the reader. This new edition is current to 31 March 2009 and is an indispensable resource for lawyers, government contract managers and their private sector counterparts.

Full Product Details

Author:   Nicholas Seddon
Publisher:   Federation Press
Imprint:   Federation Press
Edition:   4th edition
ISBN:  

9781862877405

ISBN 10:   1862877408
Pages:   512
Publication Date:   20 April 2009
Format:   Hardback
Publisher's Status:   Active
Availability:   Available from one of our local or international suppliers.  
This item will be ordered in for you from one of our suppliers. Upon receipt, we will promptly dispatch it out to you.

Table of Contents

The Uses of Contract by Governments The application of contract law to government contracts/ The government's use of contract/ The erosion of remedies and accountability/ Free trade agreements and government procurement The Government's Power to Contract The Commonwealth/ The States and Territories/ Statutory corporations and local government/ The consequences of lack of power Contract Formation Intention to create legal relations/ Statutory agreements/Authority to contract on behalf of government/ Authority to contract and statutory corporations/ Failure to appropriate funds Government Privileges and Immunities Government bodies as legal entities/ The different meanings of the Crown / Statutory bodies and the shield of the Crown/ Private bodies and the shield of the Crown/ Government privileges and immunities/ Immunity from statute/ Immunity from coercive orders/ Immunity from execution/ The priority of Crown debts/ Assignment of choses in action Executive Necessity, the Rule Against Fettering and Legislative Overriding of Contract Contract and future government action/ The doctrine of executive necessity/ The primacy of legislation/ The rule against fettering future executive action/ The rule against fettering legislative action/Legislative overriding of an existing contract/ The effect on the contract/ Government effectiveness and estoppel The Government and the Trade Practices and Fair Trading Legislation The trade practices and fair trading scheme/ The legislation and the government/ The consequences of exemption/ The position of statutory corporations/ Misleading or deceptive conduct/ Unconscionable conduct/ Anti-competitive conduct Tenders Introduction/ Contractual analysis of tenders/ The pre-award period/ Estoppel/ Misleading or negligent conduct/ Confidentiality/ Restitution/ Administrative law challenges/ Access to information Administrative Law Remedies Introduction/ The availability of administrative law remedies/ The grounds for review/ The Ombudsman/ Access to information Table of Cases/ Table of Legislation/ Index

Reviews

...the explanations are admirably lucid and concise, and overall the book provides an excellent, accessible and well structured account of the relevant principles of law. - Professor Sue Arrowsmith This third edition indicates just how much the whole process of government contracting has developed over the nine years since the first edition appeared. - Public Administration Today, July-Oct 2005 The third edition of this book provides a comprehensive coverage of issues that arise when contracting with all levels of government in Australia. The risks specific to government contracts that are covered include the power of government to contract; Crown privileges and immunities; and the ability of governments to override contracts through legislation. The author also deals extensively with governmental tenders and administrative law remedies. This edition introduces new issues, including how the Australia-US Free Trade Agreement will affect Australian government procurement; political interference in the government contracting process; and the distinction between statutory licences and government contracts. ... The book is clearly written and easy to read. It will be invaluable to any practitioner engaged in negotiating contracts with any level of government. The author highlights areas of the law of contracting with government that remain uncertain, which should assist practitioners in assessing specific risks and drafting contracts accordingly. - Law Institute Journal (Vic), Vol 79(4), April 2005 This work, an intensive account of a specialist area of contract law, is in its third edition in less than nine years. That is in itself a considerable recommendation about the quality of this book and its usefulness. It is written by Dr Nicholas Seddon, a co-author of Cheshire and Fifoot's Australian edition. It was written for a specialist Australian legal audience but I expect it to be of interest to public servants and lawyers in other jurisdictions. It is now a work of some 400 pages. It may well turn out to be of greater interest to lawyers who practice in other areas of contract and commercial law than they might initially expect. The law relating to government contracts (to use a contemporary analogy) lies between the grinding tectonic plates of contract, administrative law and complex legislation. The result of these tensions is a sense of very rapid state of development of legal ideas in these areas. ... Quite apart from general revision and accounts of recent case law, the third edition covers areas absent from the previous editions including the Free Trade Agreement, the role of political interference in government decision making, the distinction between a statutory licence and a contract and an expanded discussion of when legalisation does or does not bind government entities. This text is an authoritative account of an important area of contract is unlikely to be surpassed for many years. It deals with an area of the law that is likely to increase rapidly in importance over the next decade and would be a valuable addition to the library of any practitioner specialising in commercial law. - (2005) 26 Qld Lawyer When I received this book for review I fleetingly wondered what, in relation to government contracts, was so different that it could take a whole book on its own. Like many naive thoughts, a quick glance showed me how wrong I was. It is sometimes easy to forget the advantageous position that governments are in, when it comes to negotiating and how the courts have frequently emphasised the need for them to be even handed. The author commences a chapter with the old aphorism, The King can do no wrong and then proceeds to demonstrate the weakness in such a thought. To those who have little or no dealings with the Government, State or Commonwealth, this book will be an eye opener. To those who do, it will remind one of the Model Litigant rules, express and implied, which do affect the way that our governments function. The third edition provides a useful, but necessarily incomplete, appraisal of the Free Trade Agreement with the United States, which at press time had not been adopted, and which, today, I note, remains somewhat unclear in certain respects, even though both countries have signed it. Among many subjects about which I found useful reminders, included: 1. the circumstances in which moneys paid out of consolidated revenue, without proper authority, may be recovered, 2. agreements between governments and commercial entities and when they will be treated as contracts, 3. The various meanings of the term, the Crown , 4. when local government may be considered as the Crown, 5. when is the Crown bound by its own legislation, 6. When is the Commonwealth bound by State legislation and vice versa, 7. the doctrine of executive necessity both in war and in peace, 8. trade practices and fair trading issues, vis a vis governments, 9. limits on fettering future legislative action, including repealing of earlier legislation, 10. tenders and the obligation of good faith. I do not intend this to be an exhaustive summary of the issues covered, for the book deals with many other subjects. Whilst it is designed for lawyers and non lawyers, my impression is that it is written at such a scholarly level, punctuated with in depth analysis of relevant cases, that a non-lawyer would find it difficult to absorb its contents. For that matter, this lawyer has spent many hours learning enough about it, to prepare this review! - BJM, Tasmanian Law Society Newsletter In the construction industry, government's role and influence are more and more akin to those of a commercial enterprise. Accordingly, ... Mr Seddon's second edition is both topical and valuable. Tendering is the commercial threshold of construction projects yet it is ill-understood and often badly done. Mr Seddon's deep insight into both the problems and important lessons to be learnt will be especially appreciated. ... - Building & Construction Law Journal, February 2000 ...it is a very user-friendly text ... illustrating once again that a brilliant mosaic of our law is extremely interesting when the spotlight is put upon a little section of it. - Justice Michael Kirby, Australian Law Journal ...the explanations are admirably lucid and concise, and overall the book provides an excellent, accessible and well structured account of the relevant principles of law. - Professor Sue Arrowsmith Seddon's treatment of the case law is comprehensive without being stifling ... a good and stimulating book. - Law Institute Journal (Vic)

Seddon's treatment of the case law is comprehensive without being stifling ... a good and stimulating book. - Law Institute Journal (Vic) This third edition indicates just how much the whole process of government contracting has developed over the nine years since the first edition appeared. - Public Administration Today, July-Oct 2005 The third edition of this book provides a comprehensive coverage of issues that arise when contracting with all levels of government in Australia. The risks specific to government contracts that are covered include the power of government to contract; Crown privileges and immunities; and the ability of governments to override contracts through legislation. The author also deals extensively with governmental tenders and administrative law remedies. This edition introduces new issues, including how the Australia-US Free Trade Agreement will affect Australian government procurement; political interference in the government contracting process; and the distinction between statutory licences and government contracts. ... The book is clearly written and easy to read. It will be invaluable to any practitioner engaged in negotiating contracts with any level of government. The author highlights areas of the law of contracting with government that remain uncertain, which should assist practitioners in assessing specific risks and drafting contracts accordingly. - Law Institute Journal (Vic), Vol 79(4), April 2005 This work, an intensive account of a specialist area of contract law, is in its third edition in less than nine years. That is in itself a considerable recommendation about the quality of this book and its usefulness. It is written by Dr Nicholas Seddon, a co-author of Cheshire and Fifoot's Australian edition. It was written for a specialist Australian legal audience but I expect it to be of interest to public servants and lawyers in other jurisdictions. It is now a work of some 400 pages. It may well turn out to be of greater interest to lawyers who practice in other areas of contract and commercial law than they might initially expect. The law relating to government contracts (to use a contemporary analogy) lies between the grinding tectonic plates of contract, administrative law and complex legislation. The result of these tensions is a sense of very rapid state of development of legal ideas in these areas. ... Quite apart from general revision and accounts of recent case law, the third edition covers areas absent from the previous editions including the Free Trade Agreement, the role of political interference in government decision making, the distinction between a statutory licence and a contract and an expanded discussion of when legalisation does or does not bind government entities. This text is an authoritative account of an important area of contract is unlikely to be surpassed for many years. It deals with an area of the law that is likely to increase rapidly in importance over the next decade and would be a valuable addition to the library of any practitioner specialising in commercial law. - (2005) 26 Qld Lawyer When I received this book for review I fleetingly wondered what, in relation to government contracts, was so different that it could take a whole book on its own. Like many naive thoughts, a quick glance showed me how wrong I was. It is sometimes easy to forget the advantageous position that governments are in, when it comes to negotiating and how the courts have frequently emphasised the need for them to be even handed. The author commences a chapter with the old aphorism, The King can do no wrong and then proceeds to demonstrate the weakness in such a thought. To those who have little or no dealings with the Government, State or Commonwealth, this book will be an eye opener. To those who do, it will remind one of the Model Litigant rules, express and implied, which do affect the way that our governments function. The third edition provides a useful, but necessarily incomplete, appraisal of the Free Trade Agreement with the United States, which at press time had not been adopted, and which, today, I note, remains somewhat unclear in certain respects, even though both countries have signed it. Among many subjects about which I found useful reminders, included: 1. the circumstances in which moneys paid out of consolidated revenue, without proper authority, may be recovered, 2. agreements between governments and commercial entities and when they will be treated as contracts, 3. The various meanings of the term, the Crown , 4. when local government may be considered as the Crown, 5. when is the Crown bound by its own legislation, 6. When is the Commonwealth bound by State legislation and vice versa, 7. the doctrine of executive necessity both in war and in peace, 8. trade practices and fair trading issues, vis a vis governments, 9. limits on fettering future legislative action, including repealing of earlier legislation, 10. tenders and the obligation of good faith. I do not intend this to be an exhaustive summary of the issues covered, for the book deals with many other subjects. Whilst it is designed for lawyers and non lawyers, my impression is that it is written at such a scholarly level, punctuated with in depth analysis of relevant cases, that a non-lawyer would find it difficult to absorb its contents. For that matter, this lawyer has spent many hours learning enough about it, to prepare this review! - BJM, Tasmanian Law Society Newsletter In the construction industry, government's role and influence are more and more akin to those of a commercial enterprise. Accordingly, ... Mr Seddon's second edition is both topical and valuable. Tendering is the commercial threshold of construction projects yet it is ill-understood and often badly done. Mr Seddon's deep insight into both the problems and important lessons to be learnt will be especially appreciated. ... - Building & Construction Law Journal, February 2000 ...it is a very user-friendly text ... illustrating once again that a brilliant mosaic of our law is extremely interesting when the spotlight is put upon a little section of it. - Justice Michael Kirby, Australian Law Journal ...the explanations are admirably lucid and concise, and overall the book provides an excellent, accessible and well structured account of the relevant principles of law. - Professor Sue Arrowsmith Seddon's treatment of the case law is comprehensive without being stifling ... a good and stimulating book. - Law Institute Journal (Vic)

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