The Full Federal Court has unanimously dismissed appeals by Delta Building Automation Pty Ltd and its sole director, Timothy Davis, upholding earlier findings that the pair attempted to rig a tender for the National Gallery of Australia.
The court’s decision confirms a Federal Court finding from 1 August 2023 that Delta and Mr Davis attempted to induce a competitor to “make an arrangement or arrive at an understanding to submit an anti-competitive bid” in relation to the Gallery’s procurement of a new building management system. The original penalties — $1.5 million for Delta and $120,000 for Mr Davis — remain in place.
“Cartel arrangements, such as bid rigging, often inflate costs for consumers or other businesses and are a serious breach of the law. It is important for Australian businesses to understand that even an attempt to enter into a cartel is illegal, whether the attempt is successful or not,” ACCC Deputy Chair Mick Keogh said.
The Full Court upheld the trial judge’s finding that in late 2019 Mr Davis organised a meeting at a café in Canberra with the general manager of one of Delta’s competitors and offered to pay the competitor in exchange for agreeing to the proposed arrangement to rig the bid. The competitor rejected the offer and the attempt to rig the tender was unsuccessful. The National Gallery was not involved in or aware of the conduct at the time and did not suffer any losses.
“This decision, and the penalties imposed on Delta and Mr Davis, serve as a reminder of the significant consequences facing businesses and representatives who engage in or attempt to induce cartel conduct, even where the attempt fails. The conduct in this case is especially concerning, given that the tender involved was taxpayer funded,” Mr Keogh said.
The Australian Competition and Consumer Commission launched civil proceedings against Delta and Mr Davis on 13 May 2021. After the Federal Court’s liability finding in August 2023, penalties were imposed on 4 June 2024 and an appeal against that liability finding was filed by Delta and Mr Davis on 2 July 2024.
Delta is an ACT-based company that designs, installs and maintains building management systems and is part of a group that operates nationally as the exclusive Australian distributor for the Delta Controls brand. Building management systems are computer-based systems used to manage and monitor equipment such as air‑conditioning, ventilation, lighting and power systems.
“It is crucial for all businesses, large or small, to ensure that any discussions they have with competitors do not propose or lead to arrangements which may interfere with the competitive process, such as bid‑rigging and other cartel conduct.” Mr Keogh added.
The ACCC said the case underlines that attempts to enter cartel arrangements are illegal even when they do not succeed. The regulator investigates cartel conduct, manages the immunity process and pursues civil cartel contraventions in the Federal Court.
