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ARTICLE · 13 OCTOBER 2010

Beware of the TPA's anti-competitive provisions when tendering

DLA Piper Australia
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A significant penalty figure, imposed by the Federal Court in its recent judgment in the long-running matter of ACCC v Baxter Healthcare Pty Limited [2010] FCA 929, sends a clear warning to all businesses undertaking procurement activities to be observant of the anti-competitive provisions in the Trade Practices Act 1974 (TPA).

AustraliaAntitrust/Competition Law
Scott Alden
Scott Alden

A significant penalty figure, imposed by the Federal Court in its recent judgment in the long-running matter of ACCC v Baxter Healthcare Pty Limited [2010] FCA 929, sends a clear warning to all businesses undertaking procurement activities to be observant of the anti-competitive provisions in the Trade Practices Act 1974 (TPA).

The facts

Baxter Healthcare Pty Ltd (Baxter) was a manufacturer of different types of sterile fluids (SF) and peritoneal dialysis (PD) fluids commonly used in hospitals. Baxter was effectively the sole manufacturer and supplier of SF and had a market share in Australia of the PD products market in excess of 90 per cent.

After a period of tendering and negotiations, Baxter entered into long-term contracts with the relevant state purchasing authorities in Western Australia, South Australia, NSW and Queensland for the supply of SF and PD products to public hospitals. Baxter was the preferred tenderer after offering substantial discounts on

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