REVOLVE CONTESTS THE RIGHT OF THE GOVERNMENT TO TENDER ITS BUSINESS 

Procurement Legislation enables Government to put out to tender any service provided at a cost to the Government and therefore the taxpayer.

In terms of waste management and recycling the principal Service Provider for the ACT Government is Thiess.

While Thiess is and always was a Service Provider for the Government, Revolve never was.

Revolve was always a tenant on ACT landfills and as such it paid rent.

Neither Government nor any other landlord has the right to put the ownership of a business out to tender. This is exactly what the ACT Government did to Revolve.

Not only is what the Government did to Revolve unlawful, but it also put Revovle's business out tender while both Thiess and the ACT Government had a contractual Agreement with Revolve which is still an operating legal document.

Revolve was unlawfully forced from its business operation by Thiess, in breach of the Trade Practices Act, while Thiess had an ongoing legal agreement with Revolve.

The document below was provided as a second detailed submission to the ACT Legislative Assembly Committee Procurement Committee Hearing.

ACT Legislative Assembly

Committee Procurement Committee Hearing

Thursday 4th March 2010

There are two principal legal issues at heart in regard to the unlawful treatment of Revolve at the Mugga Landfill. These are:

Did the ACT Government have the right to put Revolve's business out to tender?

Did Thiess and the ACT Government contravene the Trade Practices Act in their treatment of Revolve?

Principal points for the hearing

1. Revolve has always been a tenant at the landfill not a service provider.

Tenants pay to rent premises - Service Provider are paid to be on premises.

As a tenant Revolve owned its own business and operated on premises rented from the ACT Government.

All other operators on the landfill are Service Providers who have tendered for their work and are paid to be on the landfill. Revolve has never been paid as a service provider on the landfill. It had always paid rent.

The ACT Government does not own the Revolve business

Issue - The ACT Government did not have the right to call for tenders for Revolve's business

2. Revolve was forced under duress to sign an Agreement with Thiess by ACT NoWaste

This action is contrary to the Trade Practices Act 1974 - section 51AA 'unconscionable conduct'

Thiess clearly states in the Agreement that the Resource Recovery business is owned by Revolve. It is "Revolve's business".

Issue - This Agreement and all agreements relating to government property are sanctioned by the ACT Government - ipso facto the ACT Government has recognised that the business belonged to Revolve

3. Revolve has had a continuous and on-going contractual agreement with Thiess to operate its business on the Mugga landfill since November 28th 2002.

Schedule 1 "Termination Date" in that Agreement is:

 "the date of completion of a contract between Thiess and the Australian Capital Territory in relation to the operation of the Mugga Lane Landfill which supersedes the Head Contract."

Thiess and the ACT Government breached their obligations under that Agreement. In forcing Revolve from its legitimate premises Thiess once again breached section 51AA of the Trade Practices Act 1974.

Issue - The contract which replaced the "Head Contract" is the contract currently in operation with Thiess - therefore Revolve still has a contract with Thiess.

4. Revolve was the only company to submit a tender for the weighbridge in 2006

Despite the submission of this conforming tender and being the only company to do so, the contract was given to Thiess.

No negotiation was entered into with Revolve. Revolve was never consulted regarding potential changes to its tender.

The operation of the weighbridge was subsequently given to Thiess, despite claims by the Auditor General of a potential conflict of interest.

Issue - The operation of the landfill was written into the Thiess contract as part 'E' of the landfill contract, completely bypassing the Procurement process.

5. Thiess contracts and Conflict of Interest

In 2004 the Auditor General identified a potential Conflict of Interest arising with Thiess operating the Weighbridge and the Landfill. This occurred because the same operator is paid to determine the quantity of waste which goes to landfill and is also paid to bury the quantity of waste determined at the weighbridge.

ACT NoWaste noted in the media that this issue had been identified elsewhere by the NSW Independent Commission Against Corruption and would be corrected in a future ACT tender. This did not happen.

There are now five contractual arrangements with Thiess with clear Conflicts of Interest:

1. Thiess operate the landfill

2. Thiess operate the weighbridge (conflict of interest with 1 above)

3. Thiess operate the Mitchell Transfer Station (conflict of interest with 1 and 2 above )

4. Thiess operate the Mitchell Resource Recovery Centre (conflict of interest with 1, 2 and 3 above)

5. Thiess operate the MRF - (conflict of interest with 1 and 2 above)

Issue - Despite the issue being identified by the Auditor General there are now five clear Conflicts of Interests in the management by Thiess of waste and recycling contracts in the ACT.

Conclusion

It is clear that quite apart from any existing court case on this issue, there is a need for a full Public Enquiry into the management of the Tender and Contract process for Mugga Landfill.

Government has been poorly advised in this matter and in a number of other matters associated with the management of waste contracts in the ACT.

ACT NoWaste staff has managed the process to achieve very specific outcomes to these contracts and the process has resulted in an extraordinary array of conflicts of interest.

The Procurement process and Public Trust in the process has clearly been abused in the management of these contracts. To restore the belief of the public in its institutions this contract process must be the subject of a full Public Inquiry.

Please support the new Revolve site by dropping off your goods at the temporary site at the junction of the Monaro Highway and Mugga Lane. To contact Revolve please call the office on (02) 6230 7122 or the yard on 0407 005 333.