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A brief background first.. My company, a private company…

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Hi, A brief background first.. My company...
Hi,
A brief background first..
My company, a private company (The Contractor) gave a proposal to provide services to a government authority (The Commission)..
Theeir board accepted our proposal and we signed a 10 year contract whereby-per the contract- they never actually paid my company any money from public funds..We would generate our own funds from the public (as authorised in the contract), deduct our fees, and remit the balance to the commission.
We tried our best for a whole 12 months however due to continuous breaches by the commission, which the failed or refused to rectify or remedy despite countless notices, it was no longer feasible to continue with the venture and we terminated the contract by way of proper notice.
Now we are taking them to court to recover what we spent as liquidated damages- as accorded to us in the contract under an “early termination” clause.
The commission gives ambiguous, weak, and even flawed arguments in their defence claiming that we failed to deliver on our obligations; although they never once gave us notice of any perceived breaches throughout the whole 12 months we tried and delivered everything we possibly could.
Their whole defence as we now head to trial (April next year), is mainly on one point..that the contract was actually null and void, that it breached the Public Finances Management Act of the country..
The clauses in this act that the defendant is relying on point out that any engagement of service providers or vendors by any Government entity must go to public tender..if the contract value was over 500,000 in our currency..and this engagement did not go to public tender.
The answer, or help I am after, apart from any help with any of the above, is:
* Being that it was a totally original concept, a pioneering idea, a first of it’s kind, that we proposed to them..how could it possibly go to public tender? Or-
* Being that the commission is never once obligated in the contract to pay any government funds to us, ie from the public purse, how can the two parties be subject to the Public Finances Management Act, more specifically the need to go to public tender? Or-
* If there still should’ve been a public tender, we should still be compensated for our losses in trying to deliver on our obligations because the responsibility of adhering to the PFMA prior to engaging the contractor rests with the commission, the government entity/employer/master in the agreement..if anything, we were engaged and made to spend our funds when the agreement was not entered into in good faith.
** Our lawyer is not giving me satisfactory answers or advice when I know we are in the right. Please help..
Submitted: 7 months ago.Category: Australia Law
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Answered in 2 hours by:
12/19/2017
Solicitor: Leon, Solicitor replied 7 months ago
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,719
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hi, I am Leon, a NSW Solicitor. I will be assisting you with your question today. I may ask a few questions. I can call you for an extra fee.

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Solicitor: Leon, Solicitor replied 7 months ago

Good Morning

If the court finds the contract null and void then you would not be allowed to claim for the termination.

All government contracts, generally, have to go to public tender and be transparent.

Whether you can claim, really depends on what section of the Act they say has been breached and you have to look at the cases that have been decided on that section by the court.

Once you look at the cases you then apply them to your case and see whether on your case how the court has interpreted the law in the past applies to you.

If you find that there is no breach of the act then you run it on that basis.

I would also be suggesting that counsel be appointed as these matters are specialised and a Barrister that practices in this area is required to run the hearing.

I am sorry but cannot provide you with any more than this.

I hope this makes sense and is of assistance. If you have found my answer to be helpful, please rate me five stars so I can get paid for my services to you. I am happy for you to ask further questions on anything you wish more detail on.

Regards

Leon

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Solicitor: Leon, Solicitor replied 6 months ago

Good Afternoon

I am following up my last post.

Is there anything else I can assist you with?

If not all the best and request you consider rating my work 5 stars so I can be paid.

Regards

Leon

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Solicitor: Leon, Solicitor replied 5 months ago

Good Morning

I am following up my last post.

Is there anything else I can assist you with?

I look forward to hearing from you

Regards

Leon

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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