2007

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Treasurer)

2007

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Treasurer)

An Act to amend the Government Procurement Act 2001, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Government Procurement Amendment Act 2007.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

This Act amends the Government Procurement Act 2001.

Note This Act also repeals other legislation (see s 44).

An Act about procurement by the Territory and territory entities, and for other purposes

In this Act:

procurement—

(a) means the process of acquiring goods, services, works or property by purchase, lease, rental or exchange; and

(b) includes the process of disposing of goods, works or property including by sale.

(2) However, territory entity does not include—

(a) The University of Canberra; or

(b) a Territory-owned corporation; or

(c) another entity established under the Corporations Act; or

(d) an entity declared under the regulations not to be a territory entity.

This Act does not apply to the grant of a licence or lease of land, or the sale of a lease of land, under the Land (Planning and Environment) Act 1991 or the Planning and Land Act 2002.

The responsible chief executive officer for a territory entity must ensure that the entity complies with this Act.

The functions of the board are—

(a) to review, and give advice to territory entities on, procurement issues; and

(b) to review, and give advice on—

(i) procurement proposals and activities referred to the board by a Minister or responsible chief executive officer; or

(ii) procurement proposals for procurement matters declared by the Minister; and

(c) to review procurement proposals of territory entities in accordance with the regulations; and

(d) to consider, advise on and, if appropriate, endorse procurement practices and methods for use by territory entities; and

(e) to provide advice to the Minister on any issue relevant to the procurement activities of territory entities or the operation of this Act; and

(f) to exercise any other function given to the board under this Act or any other Territory law.

Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

The board consists of the following 7 part-time members:

(a) the chairperson;

(b) the deputy chairperson;

(c) 2 public employee members;

(d) 3 non-public employee members.

(2) A person appointed as chairperson, deputy chairperson, or as a public employee member, must be a public employee.

Note Public employee is defined in the Legislation Act, dict, pt 1.

(4) The instrument appointing, or evidencing the appointment of, a member must state whether the member is appointed as chairperson, deputy chairperson, a public employee member or a non-public employee member.

(1) The Minister must end the appointment of the chairperson, deputy chairperson, or a public employee member, if the person stops being a public employee.

(2) If the chairperson is absent, the deputy chairperson presides.

(2A) If the chairperson and deputy chairperson are absent, the member chosen by the members present presides.

(2) However, the review of a prescribed procurement matter may be carried out at a meeting of the board consisting of—

(a) the chairperson, or the deputy chairperson, and 1 non-public employee member; or

(b) 2 public employee members and 1 non-public employee member.

Note The board’s functions include reviewing procurement proposals and activities referred to the board by a minister or responsible chief executive officer, and procurement proposals of territory entities in accordance with the regulations (see s 6 (b) and (c)).

(3) Subsection (2) does not apply to a prescribed procurement matter if—

(a) the chairperson gives a direction that the subsection does not apply to the matter; or

(b) a member tells the chairperson that the member objects to the matter being reviewed by the board as constituted under the subsection.

(4) In this section:

prescribed procurement matter means any of the following that is approved, in writing, by the chairperson for subsection (2):

(a) a procurement proposal referred to the board by a Minister or responsible chief executive officer;

(b) a procurement activity referred to the board by a Minister or responsible chief executive officer;

(c) a procurement proposal referred to the board in accordance with the regulations;

(d) a procurement proposal for a procurement matter stated in a declaration under section 22B (Minister may declare procurement matters to be reviewed).

procurement proposal means a proposal by a territory entity for procurement.

(1) A territory entity must pursue value for money in undertaking any procurement activity.

(2) Value for money means the best available procurement outcome.

(3) In pursuing value for money, the entity must have regard to the following:

(a) probity and ethical behaviour;

(b) management of risk;

(c) open and effective competition;

(d) optimising whole of life costs;

(e) anything else prescribed by regulation.

(1) The Minister may declare the procurement matters for which a procurement proposal must be reviewed by the board.

1 procurement matters with the same risk profile

2 procurement matters above a stated value threshold

Note 1 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Note 2 Power to make a statutory instrument includes power to make different provision for different classes (see Legislation Act, s 48).

(2) A declaration under subsection (1) is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

The responsible Minister or responsible chief executive officer may refer a procurement proposal or activity to the board for review and advice.

(1) To remove any doubt, this part applies in relation to a contract entered into by—

(a) a territory entity with an excluded body; or

(b) an excluded body as an agent of a territory entity.

A government department (representing the Territory) enters into a notifiable contract with a Territory owned corporation. The government department, but not the Territory owned corporation, is required to notify the contract under pt 3 (Notifiable contracts).

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) In this section:

excluded body means a body that is not included as a territory entity under section 3 (2) (Meaning of territory entity).

(1) For this part, a notifiable contract is a written contract for procurement entered into by the Territory or a territory entity.

$50 000

$20 000

The consideration for a contract for the purchase of swings by the Territory is $18 500. The contract is later amended to increase the total consideration to $25 500. The contract, as amended, is a notifiable contract.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

For this part, a notifiable amendment of a notifiable contract is any amendment that, either alone or counted with another amendment or other amendments that have not been notified in the notifiable contracts register—

(a) increases the total consideration for the contract by at least the greater of—

(i) 10% (or, if another percentage is prescribed under the regulations, the other percentage) of the total consideration for the contract as already notified in the notifiable contracts register; and

(ii) $20 000 (or, if another amount is prescribed under the regulations, the other amount); or

(b) substantially changes the scope or nature of the goods, services, works or property to be procured under the contract.

The consideration for a contract between the Territory and Acme Pty Ltd for the supply of road runner retention devices is $190 000.

The minimum value for notification of an amendment, or a series of amendments, of the contract is $20 000 (ie the greater of $20 000 or 10% of the value of the contract which is $19 000). The contract is amended on 3 occasions.

The 1st and 2nd amendments are for $15 000 each. While neither of the amendments is separately notifiable, the total of the 2 amendments is $30 000 and each of them is therefore a notifiable amendment. When the 2 amendments are notified on the register, the 2 amendments cannot be counted towards any other notifiable amendment. They increase the total consideration for the contract to $220 000.

The 3rd amendment is for $21 000. It is not a notifiable amendment because, even though it is more than $20 000, it is less than 10% of the total consideration for the contract as amended by all previous notifiable amendments, ie $22 000.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(g) if a notifiable amendment of the contract is made—

(i) the change in—

(A) the value of the consideration to which the amendment relates; or

(B) the scope or nature of the goods, services, works or property to which the amendment relates; and

(ii) the value of the total consideration, or estimated total consideration, for the contract because of the amendment; and

(iii) the date the amendment was made;

(1) The chief executive must ensure, as far as practicable, that a copy of the material mentioned in section 28 (1) for a notifiable contract is accessible on a web site approved by the chief executive—

(a) at all times; and

(b) for at least 2 years after the day the notifiable contract expires.

(3) The responsible territory entity for the contract may delegate the entity’s functions under this section to a public employee.

(4) In this section:

personal information—see the Privacy Act 1988 (Cwlth), section 6.

public employee—see the Legislation Act, dict, pt 1.

The responsible territory entity for a reportable contract must, if requested by the auditor-general, give the auditor-general the contracts and information the auditor-general requests.

(1) The responsible territory entity for a reportable contract must, for each relevant reporting period, give the appropriate Legislative Assembly committee either—

(a) a list of the following:

(i) the reportable contracts that became notifiable contracts during the relevant period;

(ii) the reportable contracts that had confidential text changed during the relevant period; or

(b) a statement that no reportable contracts became notifiable or changed during the relevant period.

(2) The list must contain—

(a) the following information for each reportable contract mentioned in subsection (1) (a) (i):

(i) the parties to the contract;

(ii) a brief description of what the contract is for;

(iii) the date the contract was made;

(iv) the date the contract ends;

(v) the value of the total consideration, or estimated total consideration, for the contract; and

(b) for each reportable contract mentioned in subsection (1) (a) (ii)—the thing that the change relates to; and

(c) any other information prescribed by regulation.

(3) The entity may also give the committee any other information the entity considers appropriate.

(4) The entity must give the list or statement to the committee within 21 days after the day each relevant reporting period ends.

(5) The entity must, if asked by the committee, give the committee the information the committee requires about the decision to agree to the inclusion of confidential text in the contract.

(6) In this section:

appropriate Legislative Assembly committee means a standing committee of the Legislative Assembly nominated, in writing, by the Speaker.

confidential text includes text that purports to be confidential text.

reportable contract means a notifiable contract that contains confidential text.

reporting period means a 6-month period ending on 31 March or 30 September.

(7) A nomination under subsection (6) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) This section applies if the auditor-general requests a copy of a reportable contract under section 38.

(2) The auditor-general must report to the appropriate Legislative Assembly committee on whether the auditor-general is satisfied that confidential text in the contract complies with section 35 (1) (a) or (b) (Grounds for confidentiality of information).

(3) In this section:

appropriate Legislative Assembly committee—see section 39 (6).

confidential text includes text that purports to be confidential text.

section 38 (1)

section 39 (6)

This part applies to a contract entered into by the Territory or a territory entity for procurement, other than a contract—

(a) with a consideration of at least $10 000 (or, if another amount is prescribed by regulation, the other amount); and

(b) that states that this part does not apply to it.

(1) This section applies if—

(a) the Territory or a territory entity does not pay a commercial account in full by the relevant date for the account; and

(b) the person to whom the account is payable requests, in writing, that the Territory, or the territory entity, pay interest on the amount of the account that remains unpaid from time to time after the payment date.

(2) The regulations may—

(a) make provision in relation to procurement by territory entities; and

(b) provide that prescribed things are, or are not, goods, services, works or property for this Act; and

(c) provide that prescribed activities are, or are not, for this Act—

(i) procurement; or

(ii) procurement activities.

(1) The Government Procurement (Quotation and Tender Thresholds) Guideline 2003 (No 1) in force under this Act, section 7 immediately before commencement day is taken to be a regulation made under this Act, section 52 (Regulation-making power) and applies, with any necessary changes, for the purposes of this Act.

(2) To remove any doubt and without limiting subsection (1), the guideline mentioned in subsection (1) may be amended or repealed as if it had been made as a regulation by the Executive under this Act, section 52.

(3) To remove any doubt, the guideline mentioned in subsection (1) is taken—

(a) to have been notified under the Legislation Act on the day the Government Procurement Amendment Act 2007 is notified; and

(b) to have commenced on commencement day; and

(c) not to be required to be presented to the Legislative Assembly under the Legislation Act, section 64 (1).

(4) Subsections (1), (2) and (3) are laws to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(5) This section expires on commencement day.

(6) In this section:

commencement day means the day the Government Procurement Amendment Act 2007 commences.

(1) This section applies to a contract made by the Territory or a territory entity before the commencement of this section.

(2) Part 3 (Notifiable contracts) does not apply to the contract unless—

(a) the contract was a notifiable contract when the contract was made, or became a notifiable contract before the commencement of this section; or

(b) an amendment to the contract made after the commencement of this section increases the total consideration for the contract by at least $20 000.

(3) Subsections (1) and (2) are laws to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(4) This section expires 1 year after the day it commences.

board means the Australian Capital Territory Government Procurement Board established under section 5.

chairperson means the chairperson of the board.

department—see the Financial Management Act 1996, dictionary.

deputy chairperson means the deputy chairperson of the board.

member means—

(a) the chairperson; or

(b) the deputy chairperson; or

(c) a public employee member; or

(d) a non-public employee member.

procurement—see section 2A.

responsible chief executive officer means—

(a) for a department—the responsible chief executive of the department under the Financial Management Act 1996; or

(b) for a territory authority—the chief executive officer of the authority under the Financial Management Act 1996; or

(c) for a joint venture or trust in which the Territory or a territory entity has a controlling interest—the responsible chief executive of the department or territory entity that is responsible for matters most closely related to that interest.

The following instruments are repealed:

• Government Procurement (Approved Procurement Units) Guideline 2002 (No 1) DI2002-57

• Government Procurement (Principles) Guideline 2002 DI2002-58.

Presentation speech made in the Legislative Assembly on 2007.

Notified under the Legislation Act on 2007.

For the latest republication of amended laws, see www.legislation.act.gov.au.