Delta Building Automation Pty Limited v Australian Competition and Consumer Commission

Delta Building Automation Pty Limited v Australian Competition and Consumer Commission [2025] FCAFC 119 is a Full Federal Court appeal about attempted cartel conduct linked to a National Gallery of Australia tender. The primary judge had found that Delta attempted to make, and that Delta and its managing director Timothy Davis attempted to induce, an arrangement or understanding proscribed by s 45AJ of the Competition and Consumer Act 2010 (Cth).

The Full Court dismissed the appeal. The important practical point is that the findings left standing were about attempted cartel conduct, not a completed arrangement. On the accepted facts, the competitor rejected the proposal. Even so, the conduct was serious enough to support the primary findings and the appeal failed.

The commercial story is straightforward and important. Delta and LES were rival suppliers of building management systems in the ACT. The National Gallery of Australia had an ageing Honeywell system in its original building and an ALC system in a later extension. Replacing the Honeywell system was seen as a valuable and prestigious project.

Delta had obtained maintenance work on the Honeywell system from about October 2019. The primary findings recorded in the appeal show that Mr Davis saw that maintenance work as a stepping-stone to the larger upgrade contract. By mid-September 2019, Delta believed it was well placed to secure the upgrade and did not expect a formal competitive tender.

That expectation changed when Delta learned the upgrade would proceed by a competitive tender limited to two bidders, Delta and LES. Shortly after that, Mr Davis arranged a meeting with Mr McEvilly, the principal of LES. They met at Tulips Cafe in Canberra on 18 December 2019.

The primary judge accepted Mr McEvilly's account of the conversation. On that account, Mr Davis said he would like to offer a payment so LES was not wasting its time, said there would only be two tenderers, and said he was confident of winning even from second place. Mr McEvilly rejected the proposal and said LES would submit a competitive bid if it had the opportunity. As they were leaving, Mr Davis said he might call when the tender came out, depending on the format.

The appeal was not a rerun of the factual dispute. The Full Court expressly said the appellants did not seek to disturb any findings of fact made by the primary judge. That is a key point for reading the case properly. The accepted account of the meeting remained in place for the appeal.

Instead, the appellants challenged the legal conclusions drawn from those facts. On conduct, they argued that what happened at the 18 December 2019 meeting did not rise above merely preparatory conduct and was not immediately connected, or sufficiently proximate, to the prohibited arrangement or understanding found at first instance. On intention, they argued that the primary judge had erred in rejecting Mr Davis's explanations for seeking the meeting and had wrongly concluded that he had the proscribed intention.

So the Full Court's task was narrower than deciding what happened. It had to decide whether, on the facts already found, the legal threshold for attempted cartel conduct had been met and whether the primary judge's reasoning on intention was legally flawed.

The Full Court dismissed the appeal and ordered the appellants to pay the ACCC's costs, as agreed or taxed. The reasons state that none of the appeal grounds had been established.

On the published text, the court was not persuaded by the argument that the conduct was only preparatory and too remote from a prohibited arrangement or understanding. Nor was it persuaded that the primary judge had erred in the way alleged on intention. The result is that the primary findings of attempted cartel conduct remained undisturbed.

Because the published text is incomplete, it is safest not to overstate the detailed reasoning beyond what is clearly available. But the outcome is still significant. It shows that a direct approach to a competitor during a live or expected tender, involving a payment or a suggestion that the rival should not compete in the ordinary way, can support findings of attempted cartel conduct even where the rival refuses and no arrangement is finalised.

Businesses should read this case as a warning about competitor contact in procurement settings. In many industries, especially technical services and local infrastructure markets, the same few suppliers repeatedly compete for the same work. That familiarity can create a dangerous sense that informal conversations are normal. This case shows the risk in that assumption.

The conduct in issue was not a long-running cartel or a detailed written arrangement. On the accepted facts, it was a short meeting between competitors connected to a valuable tender. The findings that survived appeal were still serious. That means your internal compliance settings should not focus only on obvious price-fixing or signed side deals. They also need to cover one-off conversations, coffee meetings, phone calls and messages during a tender process.

The case also matters because the managing director was personally involved. For owner-managed businesses and SMEs, that is especially relevant. Competition law risk often arises through the conduct of founders, directors, sales leads and tender managers who know competitors personally and are used to speaking directly. A policy sitting in a folder is not enough. Staff need practical rules and escalation pathways.

One practical lesson from the published facts is that courts and regulators look at conduct in context. Here, the context included a valuable project, a limited tender between two competitors, Delta's strategic interest in the maintenance contract, and a meeting arranged shortly after Delta learned the tender would be competitive. Businesses should assume that timing, surrounding communications and commercial incentives will all matter.

That means your business should document legitimate dealings carefully. If you need to speak with a competitor for a lawful reason, such as an industry body issue or a genuinely structured collaboration, record the purpose in advance, keep the discussion within that purpose, and make a file note afterwards. If the conversation drifts into tender strategy, who should win, whether someone should stand back, or whether compensation could be offered, the discussion should stop immediately.

It is also important to separate genuine subcontracting or consortium discussions from improper coordination. The published text in this case specifically notes there was no discussion about subcontracting or a joint tender. If your business is considering a lawful joint bid or subcontracting structure, the arrangement should be developed transparently, for a real commercial reason, and with legal advice before competitor contact occurs.

Business owners often want a direct answer to the practical question: what can we safely say to a competitor during a tender? The safest answer is very little, unless there is a clearly lawful and documented reason for the contact. This case is a reminder that the law can be engaged before any final arrangement is reached.

If a competitor contacts your business during a tender and raises stepping aside, compensation, bid format, ranking, or any suggestion of coordinated conduct, stop the discussion. Make a contemporaneous note, preserve emails, texts and call records, and get legal advice quickly. Early response can matter.

The Full Court judgment is dated 29 August 2025. The hearing dates recorded on the judgment page are 12 and 13 November 2024. The appeal was from the primary judgment in ACCC v Delta Building Automation Pty Ltd [2023] FCA 880.

This page explains the decision using the published Federal Court material presently available. The published text clearly supports the core account of the dispute, the issues on appeal and the outcome. It does not reproduce the full reasons in complete form, so this page does not attempt a paragraph-by-paragraph doctrinal analysis.

This page is based on the Federal Court judgment page for Delta Building Automation Pty Limited v Australian Competition and Consumer Commission [2025] FCAFC 119. The published material includes the catchwords, orders, introduction and part of the factual background, including the accepted account of the 18 December 2019 meeting.

Because the published text is truncated, some detailed reasoning and any fuller discussion of relief are not addressed here beyond what is clearly stated. Readers needing a deeper technical analysis should review the full judgment and the primary decision.