(1) This auction consists of one stage made up of a number of rounds.
(2) The first round of the auction starts on the date and time for that round set by the auction manager under paragraph 2.18 (f).
4.2 Rounds of an auction
(1) Each round of an auction is made up of the following periods and activities:
(a) the bidding period — during which registered applicants make their bidding instructions;
(b) the results period — during which the auction manager works out the high bids on each lot offered using the auction computer system and then publishes the results for the round using the auction computer system.
Note For paragraph (a), the following provisions are relevant:
(a) in the case of bidding by way of electronic communication — a bid is taken to have been made when the bidding instruction file containing the bid has been authenticated by the ACA’s auction computer system in accordance with paragraph 4.9 (1) (f);
(b) in the case of emergency telephone bidding — a bid is taken to have been made when the bidding instruction file containing the bid has been authenticated by the ACA’s auction computer system in accordance with paragraph 4.10 (1) (f);
(c) in the case of withdrawing bids — withdrawal may be subject to penalties, as set out in section 4.23.
(2) In this section:
results, for a round, means the following results and information:
(a) all bids (rounded down to 4 significant digits or fewer) and bid withdrawals made during the round;
(b) the amount of the high bid on each lot at the end of the round (rounded down to 4 significant digits or fewer) and the BIN of each high bidder;
(c) the minimum bid on each lot for the next round;
(d) the total value of high bids held by an applicant at the end of the round;
(e) each registered applicant’s eligibility at the beginning of the next round;
(f) the schedule for the next round and the round after that, worked out from the times set by the auction manager under paragraphs 2.18(d) and (e), having regard to the matters set out in section 4.4;
(g) any other information necessary for the smooth running of the auction.
(3) The information about a bid published under this section must not identify the automatic re-bid limit of any applicant unless that re-bid limit becomes a bid for the round.
4.3 Schedule for a round
The schedule for a round must include:
(a) the date and time at which the round is to start and bidding opens; and
(b) the date and time when the bidding period ends and the results period starts; and
(c) the date and time when the results period ends and the round ends.
4.4 Rounds on a day
(1) Once the auction opens, there will be at least 1 round each working day unless the day is a recess day.
(2) No round on a day will start before 9.00 am.
(3) If, after the end of a round, the auction manager thinks that there will be time to finish another round before 5.30 pm on that day, he or she may decide to hold another round for that day.
4.5 Recess days
(1) The auction manager may declare a day to be a recess day.
(2) Before declaring a recess day, the auction manager must give registered applicants an opportunity to comment on the proposed declaration and take into account any comments received.
(3) If the auction manager decides to declare a day to be a recess day, the auction manager must tell all registered applicants of this.
4.6 Auction manager may vary the length of the bidding or results period
(1) The auction manager may vary the length of the bidding period or the results period of a round in the auction.
(2) Before varying the length of time set for the bidding period or the results period of a round in the auction, the auction manager must give registered applicants an opportunity to comment on the proposed variation and take into account any comments received.
(3) If the auction manager decides to vary the length of time set for the bidding period or the results period of a round in the auction, the auction manager must tell all registered applicants of this and specify the round when the change will take effect.
4.7 DELETED
Division 2 Bidding and taking part in the auction
4.8 Ways of taking part in the auction
(1) The way for a registered applicant to take part in an auction is by electronic communication.
(2) A registered applicant taking part in an auction must only use the software made available by the ACA.
(3) However, a registered applicant may take part by telephone if, because of what the ACA considers to be an emergency, the registered applicant is unable to take part by electronic communication.
(4) In this Division:
taking part means bidding, making automatic re-bids, withdrawing a bid, exercising a waiver or giving instructions not to exercise a waiver.
Note For general rules about bidding, see section 4.16; for rules on using a waiver of the activity rules, see section 4.20; and for withdrawing a bid, see section 4.21.
4.9 Electronic communication bidding procedure
(1) The procedure for taking part in the auction by electronic communication is as follows:
(a) a registered applicant must use the bidding software available from the ACA to prepare its bidding instruction file for the round;
(b) the bidding instruction file will be encrypted for transmission and digitally signed using keys provided by the ACA to authenticate the file as having been created by the registered applicant;
(c) the bidding software will permit the registered applicant to print out a report of the bidding instructions contained in the bidding instruction file before transmission;
(d) the registered applicant must use the software to connect to the ACA’s auction computer system;
(e) the registered applicant must initiate a file transfer of the bidding instruction file to the ACA’s auction computer system;
(f) once the bidding instruction file is authenticated, the ACA’s auction centre computer will generate a receipt file which will be returned to the registered applicant during the connection;
(g) the ACA’s auction computer system will process the bidding instructions contained in the bidding instruction file.
(2) Details of procedures for bid transmission and authentication are set out in Schedule 3.
4.10 Emergency telephone bidding procedure
(1) The procedure for emergency telephone bidding is as follows:
(a) a registered applicant must use the telephone number notified by the auction manager as the number for telephone bidding;
(b) the registered applicant’s call will be taken by an ACA operator;
(c) the registered applicant must quote the BIN and transaction code key, as described in Schedule 3, assigned to the applicant by the ACA;
(d) the registered applicant must meet any additional identification requirements imposed by the ACA, as set out in Schedule 3;
(e) the ACA must create a bidding instruction file in accordance with the bidding instructions given by the registered applicant, and enter that bidding file into the auction computer system as soon as practicable;
(f) the time that bidding instructions contained in a bidding instruction file are made is taken to be the time that the file was authenticated by the ACA’s auction computer system;
(g) the ACA must print out a confirmation of the bidding instructions from the auction computer system;
(h) the ACA must send this to the registered applicant by facsimile, if the applicant has nominated a facsimile number;
(i) the ACA must process the bidding instructions in the same way as it processes the bids made by electronic communication by registered applicants.
(2) Details of the procedures for bid transmission and authentication are set out in Schedule 3.
4.11 Identification of registered applicants
(1) A registered applicant must use its BIN when bidding, and must comply with the other identification requirements set out in Schedule 3.
(2) If the auction manager tells registered applicants to use additional identification, they must do so.
4.12 Starting and minimum bids
(1) A bid on a lot below the starting bid for that lot will not be accepted.
Note For starting bids, see sections 2.17 and 4.13.
(2) After a starting bid has been made on a lot in a round, a bid on the lot below the minimum bid for that lot in a later round will not be accepted.
(3) The minimum bid for a lot is the sum of the high bid on that lot in the previous round, as published in the results and information for the round, and the higher of:
(a) the increment of price per lot rating set under section 2.17, multiplied by the lot rating for the lot; and
(b) the increment of percentage of high bid set under section 2.17, multiplied by that high bid.
(4) However, if a bid on a lot is withdrawn, the minimum bid on that lot is worked out in accordance with section 4.21.
(5) A registered applicant who holds the high bid on a lot from a previous round is not required by subsection (2) to raise its own high bid, but may do so.
4.13 Changing starting bids
(1) Despite section 4.12, the Chair may, at any time, vary the amount of the starting bid on a lot.
(2) Before doing this, the Chair must:
(a) tell registered applicants of the proposed change; and
(b) ask registered applicants for their comments on the proposal within the time (being not less than 1 hour) set by the Chair; and
(c) take into account any comments received on the proposal.
(3) The auction manager must notify all registered applicants of the change before the round when the change takes effect.
4.13A Changing minimum bids
(1) Despite section 4.12, the auction manager may, at any time during the auction, change the amounts fixed under paragraphs 2.17 (b) and (c) to vary the minimum bid on a lot.
(2) Before doing this, the auction manager must:
(a) tell registered applicants of the proposed change; and
(b) ask registered applicants for their comments on the proposal within the time (being not less than 1 hour) set by the auction manager; and
(c) take into account any comments received on the proposal.
(3) The auction manager must notify all registered applicants of the change before the round when the change takes effect.
4.14 Automatic re-bidding
(1) A registered applicant may not make an automatic re-bid on a lot in a round unless the applicant:
(a) makes a bid on the lot in the round; or
(b) is the high bidder on the lot from the previous round.
(2) An automatic re-bid:
(a) may be made only once in a round, and only applies in the round in which it is made; and
(b) must be:
(i) if the registered applicant makes the starting bid on a lot— at least 1 minimum bid increment above the starting bid; or
(ii) if the registered applicant makes a bid on a lot other than the starting bid— at least 1 minimum bid increment more than the applicant’s own bid; or
(iii) if the registered applicant is already the high bidder on that lot— at least 2 minimum bid increments above the applicant’s high bid as published in the results and information for the previous round.
(3) In working out the high bid in a round, an automatic re-bid made by the bidder who made the next highest bid to the automatic re-bid is disregarded.
(4) If only 1 bidder makes an automatic re-bid that exceeds the high bid made or held on the lot in the round by another bidder:
(a) the bidder is taken to be the high bidder for the lot in the round; and
(b) the amount of the high bid for the round is taken to be the lesser of:
(i) 1 minimum bid increment more than the highest bid recorded for the lot in the round; or
(ii) the amount of the automatic re-bid.
(5) If more than 1 bidder makes an automatic re-bid that exceeds the high bid made on the lot in the round by another bidder:
(a) the bidder who nominated the highest amount to which the automatic re-bid was limited is taken to be the high bidder for the lot; and
(b) the amount of the high bid for the round is taken to be the lesser of:
(i) 1 minimum bid increment more than the next highest amount to which an automatic re-bid was limited for the lot in that round; or
(ii) the highest amount to which an automatic re-bid was limited for the lot in that round; and
(c) the amount of the next highest bid is taken to be the next highest amount to which an automatic re-bid was limited for the lot in that round; and
(d) any bid instruction, including an automatic re-bid, is to be regarded as a bid for the lot at the amount of the automatic re-bid.
(6) If more than 1 bidder makes an automatic re-bid that exceeds the high bid made on the lot in the round by another bidder by the same amount, and that automatic re-bid amount exceeds any other automatic re-bid made on the lot in the round:
(a) the bidder whose re-bid is recorded in the computer system as being first made is taken to be the high bidder for the lot in that round; and
(b) the amount of the high bid for the round is taken to be the amount to which an automatic re-bid was limited for the lot in that round; and
(c) any bid instruction, including an automatic re-bid, is to be regarded as a bid for the lot at the amount of the automatic re-bid.
(7) In this section:
minimum bid increment for a lot in a round means the higher of:
(a) the increment of price per lot rating set under section 2.17, multiplied by the Jot rating for the lot; and
(b) the increment of percentage of high bid set under section 2.17 multiplied by:
(i) the high bid on that lot in the previous round as published in the results and information for that round; or
(ii) if there is no high bid published in the results and information for that round or if there is no previous round— zero.
Note The ACA must not disclose automatic re-bid limits: see subsection 4.2 (3).
4.15 Both lots on offer simultaneously
Both lots on offer at the auction will be open for bidding in each round of the auction in accordance with the allocation limit under this determination.
4.16 General rules about bidding
(1) Subject to Part 1A and sections 4.17 and 4.18, a registered applicant may bid on either but not both lots.
(2) In particular, an applicant is not restricted to bidding only on the lot that the applicant nominated in the application form.
(3) In a round, an applicant may lodge only 1 file containing the applicant’s bidding instructions.
Note An automatic re-bid may be made once only in a round: see section 4.14.
(4) If 2 or more registered applicants make identical bids on the same lot and the bids are the high bids for the round, the bid that is recorded in the auction computer system as being made first in time will be taken to be the high bid on that lot for the round.
(5) If a bid is disputed:
(a) the auction manager is the sole arbiter; and
(b) the auction manager’s decision is final.
(6) If a person who is not a registered applicant makes a bid for a lot:
(a) the bid is to be ignored; and
(b) the bid does not, by itself, affect further bidding on that lot or the validity of the lot.
Note For the emergency telephone bidding procedure, see section 4.10.
4.17 Eligibility bidding cap
(1) A registered applicant must not bid on more than one lot in a round.
(2) To ensure that an applicant’s eligibility is not exceeded, the ACA will process the applicant’s bids as follows:
(a) bidding instructions will be processed in order of lot number, starting with the lowest number;
(b) bidding instructions will only be processed so that the total of the lot ratings for those bids does not exceed the applicant’s eligibility;
(c) if the lot rating for a bid to be processed would result in the progressive total of lot ratings exceeding the applicant’s eligibility — the ACA will not process that bid or any further bids of the applicant and will treat the bid and those further bids as if they had not been made.
Note As to when an applicant is active, see subsection 1.4 (4).
4.18 Bidding activity targets
Subject to the waiver provisions in section 4.20, a registered applicant must bid in such a way during a round that the total of the lot ratings on the lots on which the applicant is active in that round is equal to the applicant’s activity target for the round.
Note 1 For activity target, see subsection 1.4 (1).
Note 2 A registered applicant who does not bid in the way mentioned in this section is liable to lose eligibility, in accordance with section 4.19.
4.19 Loss of eligibility
(1) A registered applicant’s eligibility for the next round will be reduced to zero if:
(a) the registered applicant does not meet its activity target; and
(b) the registered applicant does not exercise a waiver in that round.
Note In this auction, a registered applicant must do one of the following to remain active in the auction:
(a) be the highest bidder in a lot from the previous round and not withdrawn that bid in the current round, or
(b) have entered a new valid bid in the current round, or
(c) exercised a waiver in the current round.
Otherwise the registered applicant’s eligibility will become zero and consequently will not be able to take any further part in the auction.
4.20 Waiver
(1) During the bidding period of a round, a registered applicant who would otherwise not meet its activity target may exercise a waiver of the effect of section 4.19.
(2) A registered applicant may continue to exercise waivers until the applicant has used all its waivers fixed by the auction manager under section 2.18.
(3) A registered applicant who exercises a waiver does not lose eligibility in that round.
(4) If an auction manager exercises a waiver on an applicant’s behalf, the applicant’s eligibility for that round is not lost.
(5) The auction manager will exercise a waiver on a registered applicant’s behalf unless the registered applicant tells the auction manager, during the bidding process, that the waiver is not to be exercised, if:
(a) a registered applicant bids in such a way that, but for this section, the applicant would not meet its activity target; and
(b) all the waivers fixed by the auction manager for the registered applicant have not been exercised.
(6) A round will not be regarded as the final round if:
(a) there are no bids in a round (and, as a result, the round would be regarded as the final round); and
(b) a registered applicant exercises a waiver in that round.
Note For exercising a waiver, see section 4.8.
4.21 Withdrawal of bids
(1) During a round, a registered applicant may withdraw its bid on a lot from a previous round only if the bid is the high bid on the lot in that round.
(2) If a registered applicant withdraws a bid in a round in accordance with subsection (1) and no other applicant has made a bid on that lot in the round:
(a) the ACA is taken to be the high bidder in that round for the lot, at the next highest bid (whether the next highest bid was published in the results as a high bid or not); and
(b) the ACA will be identified by the BIN 9999; and
(c) the minimum bid for the lot in the next round is equal to that next highest bid made on the lot in a previous round, or if there is no other bid, the starting bid for the lot; and
(d) the registered applicant may bid again on that lot in a later round; and
(e) the registered applicant withdrawing the bid may lose eligibility, as set out in section 4.22.
4.22 Loss of activity on withdrawal
If a registered applicant withdraws a bid in a round, the applicant will not be regarded as being active on that lot.
Note: If a registered applicant withdraws a bid in a round, their eligibility will reduce to zero, unless the applicant (in the same round) either bids on a lot, or exercises a waiver.
4.23 Withdrawal penalty
(1) A registered applicant is liable for the withdrawal penalty in subsection (2) if:
(a) the registered applicant withdraws a bid on a particular lot; and
(b) there is a subsequent bid on the lot but no subsequent bid on the lot is equal to or greater than the withdrawn bid.
Note: A bid cannot be withdrawn unless it is the high bid for the lot – see section 4.21.
(2) For subsection (1), the withdrawal penalty is an amount equal to the difference between the withdrawn bid and the highest subsequent bid.
(3) A registered applicant is liable for the withdrawal penalty in subsection (4) if:
(a) the registered applicant withdraws a bid on a particular lot; and
(b) there is no subsequent bid on the lot.
(4) For subsection (3), the withdrawal penalty is an amount equal to the amount of the withdrawn bid.
(5) A registered applicant may withdraw a bid on a particular lot more than once, but the applicant is liable for a withdrawal penalty each time.
(6) The amount of all withdrawal penalties imposed on an unsuccessful applicant will be deducted from the applicant’s eligibility payment before any remaining portion is refunded.
(7) If the amount of all withdrawal penalties exceeds the eligibility payment, the balance will be taken out of the repayable performance payment, with any amount still owing being a debt due to the ACA that may be recovered in a court of competent jurisdiction.
Note If a withdrawal penalty is incurred by a successful applicant, the amount of the penalty will be added to the balance of the bid price payable by the applicant under section 5.2.
(8) An applicant is not otherwise liable for a withdrawal penalty.
4.24 Suspension of an applicant
(1) If the ACA considers that a registered applicant’s encryption keys or transaction code keys have been compromised and cannot be used to authenticate bidding instructions, the auction manager may suspend the applicant’s participation in the auction.
(2) For subsection (1), the auction manager must tell the applicant:
(a) the reason for the suspension; and
(b) the period of suspension (if any).
4.25 Further Deed of Financial Security or additional performance payment
(1) If, after the start of the auction, the amount payable or paid to the ACA under an applicant’s Deed of Financial security, or the amount of an applicant’s performance payment, falls below 10% of the total of high bids of the registered applicant recorded in the results of a round, the ACA must tell the applicant by written notice to:
(a) give the ACA a Deed of Financial Security (the further Deed); or
(b) pay an additional performance payment.
(2) The ACA must give the notice by facsimile to a facsimile number nominated by the registered applicant on its application form.
(3) For a registered applicant who gives the ACA a Deed of Financial Security:
(a) if the applicant has previously paid a performance payment—the amount to be secured by the Deed is equal to the amount of performance payment already paid to the ACA; and
(b) if it is a further Deed—the amount to be secured by the further Deed is twice the amount secured under the existing Deed of Financial Security; and
(c) the Deed must be given to the ACA by 5.00 pm on the third working day after the date of the notice.
(4) For a registered applicant who pays a performance payment:
(a) if the applicant has previously given the ACA a Deed of Financial Security—the amount of the performance payment is equal to the amount secured by the Deed; and
(b) if the applicant has previously paid a performance payment—the amount of the additional performance payment is the amount of the performance payment already paid by the applicant; and
(c) the payment must be paid to the ACA by 5.00 pm on the third working day after the date of the notice, and in accordance with section 1.9.
(5) A registered applicant who fails to give a Deed under subsection (3), or pay a payment under subsection (4), is excluded from taking any further part in the auction and therefore from obtaining a SL in the allocation process.
(6) If, at any time during the auction, the total of the amount payable to the ACA under an applicant’s Deed of Financial Security (if any), and the repayable performance payments of the applicant (if any), falls below 10% of the total of the applicant’s high bids, the ACA must again tell the applicant by written notice given in accordance with subsection (2) to:
(a) give the ACA another Deed of Financial Security (the further Deed), in accordance with subsection (3); or
(b) pay an additional performance payment, in accordance with subsection (4).
Note: the effect of this paragraph is that the total of the amounts payable under a Deed of Financial Security together with the amount of any performance payments, will double each time the ACA issues a notice under this section.
(7) A registered applicant who fails to give the ACA a further Deed, or pay the further additional performance payment, in accordance with subsection (6) is excluded from taking any further part in the auction and therefore from obtaining an SL in the allocation process.
(8) When the ACA receives a further Deed the ACA must, as soon as practicable, cancel the existing Deed of Financial Security by written notice to the Promisor given in accordance with that Deed.
(9) Sections 2.8, 2.9, 2.10, 2.11 and 2.12 apply to a further Deed and to an additional performance payment.
4.26 Consequences of exclusion
(1) The entry fee of an applicant who is excluded from obtaining an SL because the applicant fails to pay an additional performance payment (an excluded applicant) is not refundable.
(2) The eligibility payment and repayable performance payments (if any) of an excluded applicant are refundable.
(3) However, before refunding the eligibility payment and repayable performance payments (if any) of an excluded applicant, the ACA must deduct any bid withdrawal penalties from the amount to be refunded.
(4) In working out the bid withdrawal penalties deductible under subsection (3), a high bid of the excluded applicant that was current immediately before the applicant was excluded is taken to be withdrawn.
Note: Because it is not possible to work out any bid withdrawal penalties until the end of the auction, the eligibility payment and repayable performance payments cannot be refunded until then.
Division 3 Bringing the Auction to an End
4.27 Suspension or cancellation of auction
(1) At any time after a notice in relation to an auction has been issued under section 2.2, the ACA or the auction manager may suspend or cancel the auction, or a round of the auction:
(a) if the Minister directs the ACA or the auction manager to do so; or
(b) because of:
(i) an error in, or technical failure of, the auction computer system; or
(ii) technical failure of the telecommunications system being used for the auction; or
(iii) an event beyond the control of the ACA; or
(c) if the ACA is satisfied that there has been, or is likely to be, a breach of the auction procedures of a kind that could compromise the auction; or
(d) if the auction manager is satisfied that in the circumstances it is appropriate to do so.
(2) If the auction is suspended, the ACA or the auction manager may:
(a) resume the auction from the end of any round which has been completed, and for which the auction manager is satisfied that the results are correct; or
(b) cancel the auction.
Note: the auction manager may give the first round after resumption a higher round number if it is administratively expedient to do so.
(3) If the auction is cancelled:
(a) all eligibility payments and repayable performance payments (if any) of registered applicants will be refunded; and
(b) the entry fee will not be refunded; and
(c) the ACA may allocate the lots:
(i) by another auction; or
(ii) by tender; or
(iii) by a negotiated price; or
(iv) by allocation for a pre-determined price.
Note The ACA may make a determination under section 106 of the Act about allocations other than by auction.
4.28 Closing of auction
(1) The rounds of the auction are to continue until:
(a) the auction is in its last stage; and
(b) no bid is made on any lot on offer; and
(c) no bidder exercises a waiver; and
(d) no applicant remains under suspension.
(2) Once this happens, the auction is considered closed, and the auction manager must tell all registered applicants of this.
Note For suspension of an applicant, see section 4.24. For the exercise of waivers, see section 4.20.
(3) An automatic re-bid on a lot by the high bidder on the lot from the previous round does not constitute a bid for paragraph (1) (b).
(4) The exercise of a waiver by the auction manager under subsection 4.20 (5) does not constitute the exercise of a waiver by the bidder for paragraph (1) (c).
(5) If bidding is continuing after 20 rounds, the auction manager may consider it necessary, to achieve a result, to close the auction at the end of a round that the auction manager specifies (the specified closing round).
(6) Before declaring the specified closing round, the auction manager must:
(a) at least 2 rounds before the proposed closing time, tell all registered applicants that the auction manager proposes to close the auction at the end of the specified closing round, and ask for their comments within the time (being not less than 1 hour) set by the auction manager; and
(b) take registered applicants’ comments into account in deciding whether to close the auction (so far as the comments are relevant to the issue); and
(c) if the auction manager decides to close the auction:
(i) tell all registered applicants of the specified closing round; and
(ii) at the end of the specified closing round, tell all registered applicants that the auction is closed.
(7) If the auction is closed under subsection (6), the registered applicant who is the highest bidder on a lot at the close of the auction is taken to have made the highest final bid on the lot and to be the successful applicant for that lot.