The Call You Should Not Make

Construction runs on relationships: a quick call to the client, a coffee with the project manager, a word on the site walk.

In Defence estate tendering, the same call is a probity event. Defence's own CFI Tender Evaluation and Probity Protocol (October 2025) sets a standard probity briefing for estate evaluators. It tells them to avoid contact with tenderers beyond normal day-to-day dealings on existing projects. If a tenderer raises a live tender, evaluators point them back to the formal contact structure, usually the Tender Administrator's email address. Any unusual contact that relates directly to a submission is reported to the Evaluation Board Chair (Annex A, p 22).

The call that builds goodwill elsewhere can end up as a note on the evaluation file here.

Last week we looked at how Defence evaluates, and why bidders often have to work out what matters most. This week answers the obvious next question: how do you ask Defence what matters without breaking the rules?

Part 1: One channel, and a record of everything

The rules are not a gag. The Department of Finance states that probity should not be used to avoid reasonable discussion with suppliers. What the rules control is the channel, and who else hears the answer.

The Defence estate Medium Works and Head Contract tender conditions use identical wording. All questions go to the Tender Administrator (clause 1.1(b)), by email, no later than 7 days before close (clause 2.2(a)). Answers are not guaranteed, and any answer comes back as an addendum or Information Document.

Those answers usually go to every tenderer. For construction tenders at or above $7.5 million, the Commonwealth Procurement Rules require officials responding to a supplier to avoid any supplier gaining an advantage (paragraph 10.8). Below that, officials must still deal with tenderers equitably (paragraph 6.7). Your question becomes the market's answer.

Here is the tool most bidders miss. Under clause 2.2(b), a tenderer can ask for its question and the answer to stay confidential as commercial-in-confidence, with a justification. If Defence disagrees, the tenderer has 2 days to withdraw the question before it may be issued to everyone (clause 2.2(c)). A builder testing an unusual staging approach can therefore ask without automatically handing the idea to competitors.

The same channel answers last week's problem. Where the documents leave the weighting of criteria unclear, ask in writing before the cut-off. On tenders at or above $7.5 million, the CPR require tender documents to state the relative importance of criteria where it applies (paragraph 10.6(d)), so this is a legitimate question.

Three rules close the loop. Only addenda can be relied on (clause 2.2(d)). Industry briefings are background only, and photos and recordings are banned (clause 2.3). Defence may also meet tenderers separately before close (clause 7.1), but the conditions do not let it take what is said there into account in evaluation (clause 4(c)). If it matters to your score, it belongs in the tender.

Part 2: Where capable firms get caught

The firms that get into trouble are rarely trying to cheat. They are doing what works in commercial tendering.

Hiring the person who knows the client. Clause 12 stops a tender being prepared by any officer, employee, agent or adviser of the tenderer who was a Defence employee, or involved in the project, in the 12 months before the documents were issued. Anyone involved in Defence's management of the tender is caught with no time limit. Permission can be sought, but the request is due 14 days before close. The word "adviser" means external consultants are covered too.

Talking to other bidders. When preparing a tender, clause 15.1 bars communication with other tenderers, or with employees of an industry association any tenderer belongs to, about the documents or the works where it could reduce competition, including any discussion of price. The cost is real. In 2024 the Federal Court ordered a Canberra building services company and its director to pay $1.5 million and $120,000 after the director offered a competitor money to rig a Commonwealth institution's tender. The competitor refused, and the Full Federal Court dismissed the appeal in August 2025. A failed attempt still cost $1.62 million.

The courtesy gift. Defence's Working with Integrity says offering gifts, benefits or hospitality to Defence personnel is not appropriate regardless of value, and names meals and refreshments (p 13). Under the Criminal Code, dishonestly giving a benefit that would tend to influence a Commonwealth official carries up to 5 years (section 142.1).

The incumbent's blurred line. Contractors already working on a base deal with Defence regularly. In a 2024 audit of a Defence munitions procurement, the ANAO found probity management "was not effective and there was evidence of unethical conduct", including a Defence official sharing internal information with the incumbent. That was a sole-source process and the failings were Defence's, but the lesson holds: Defence's estate evaluators must declare "business as usual" relationships with tenderers (CFI Protocol, Annex A, p 21). Keep site talk to the current contract.

Part 3: Conduct is part of the score

Probity is often treated as admin. The tender documents treat it as an evaluation input.

Defence can decide not to evaluate, or to stop evaluating, a tender where the tenderer has breached the tender conditions or confidentiality agreement, or "otherwise acted inconsistently with the tender process" (clause 4(d)(iii)). The CPR list a supplier's ethical conduct as a value for money consideration (paragraph 4.5(c)). Finance's procurement policy note tells officials to factor unethical behaviour, including breaches of confidentiality, into evaluation. Tender Schedule F asks every bidder to describe its organisational commitment to ethical conduct.

The obligations also start earlier than most firms realise. Before seeing a page, a Medium Works bidder signs Defence's Disclaimer and Confidentiality Agreement (clause 3). It requires the bidder to notify the Tender Administrator, as soon as reasonably practicable, of any known or suspected fraud or corruption connected with the process (clauses 19 and 24). Its definition of corruption closely mirrors the National Anti-Corruption Commission Act 2022, which reaches the conduct of any person, not only public officials (section 8(1)(a)). Reporting an improper approach is an obligation, not a courtesy.

A practical checklist for the next estate tender:

1. Name one person as the sole channel to the Tender Administrator, and log every question and answer.

2. On release day, diarise the 7-day question cut-off and the 14-day personnel permission deadline.

3. Screen every bid team member, including consultants, against the 12-month rule.

4. Mark commercially sensitive questions confidential with a justification, and decide in advance whether you would withdraw them.

5. Brief site and account staff: no tender talk with Defence personnel, no gifts, and report unusual approaches.

6. Put everything you want scored in the tender itself.

The advantage is discipline, not access

In commercial work, access is an edge. In Defence estate tendering, access outside the channel is a liability. The firms that do well are not the ones with the warmest relationships. They know the rulebook well enough to use it: the confidential question, the timed permission request, the written record.

Treat the Tender Administrator's inbox as the only door into the evaluation room. What goes through it can work for you. What goes around it can only work against you.

Next week: The Six Weeks Between Release and Close, and how a Defence bid is actually run.