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2023
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
GOVERNMENT
PROCUREMENT AMENDMENT BILL 2023
EXPLANATORY STATEMENT
and
HUMAN RIGHTS COMPATIBILITY
STATEMENT
(Human Rights Act 2004, s
37)
Presented by
Chris Steel MLA
Special
Minister of State
GOVERNMENT PROCUREMENT AMENDMENT BILL 2023
The Bill is not a Significant Bill. Significant Bills are
bills that have been assessed as likely to have significant engagement of human
rights and require more detailed reasoning in relation to compatibility with the
Human Rights Act 2004.
The explanatory statement relates to the Government Procurement Amendment
Bill 2023 (the Bill) as presented to the Legislative Assembly. It has been
prepared to assist the reader of the Bill and to help inform debate on it. It
does not form part of the Bill and has not been endorsed by the Legislative
Assembly. The statement is to be read in conjunction with the Bill, it is not,
and is not meant to be, a comprehensive description of the Bill. What is said
about a provision is not to be taken as an authoritative guide to the meaning of
a provision, this being a task for the courts. This statement provides
information about why a Bill is proposed together with an explanation about the
proposed legislative amendments.
Each year, the ACT Government spends close to $1.5 billion on procurements
that support the delivery of quality public services, infrastructure, economic
growth, and community wellbeing. This expenditure needs to be undertaken in
alignment with community values; conducted with transparency, fairness and
rigour; and achieve value for money.
Engaged in this process are procurement
officers across the ACT Public Service, subject matter experts and advisors,
financial delegates, Directors-General and Chief Executives of Territory
entities, as well as the Government Procurement Board.
Each and every
individual in this process is bound by a rigorously defined legal framework
underpinned by the Financial Management Act, the Government Procurement Act, the
Government Procurement Regulation and the Public Sector Management Act. The ACT
Public Service and the Ministerial codes of conduct articulate the behaviours
that support individual accountabilities.
Recognising procurement as a
priority area for reform, the Procurement Reform Project was established in
February 2022 to determine changes that needed to be made to the procurement
framework to deliver efficient, effective, and accountable business outcomes,
and to meet the policy objectives of Government, and otherwise strengthen
procurement practices across the ACTPS.
The resulting Procurement Reform Program (the Program) which was agreed to by Government on 22 June 2022 identified three focus areas as key to achieving reform:
• Transparent, evidence-based procurement decisions which are conducted with probity and which can withstand scrutiny;
• Support for our workforce, local industries and businesses through
clear roles and the delivery of consistent, accurate, timely, practical and
customer-focused services through all phases of the procurement lifecycle;
and
• Streamlining our legislative framework, policies, processes and
templates to ensure that they are efficient and can facilitate timely
procurement outcomes.
The Program improves government business, while
helping our economy and our community. It provides more opportunities for
industry and local businesses to work with the ACT Government. It supports the
capability of our workforce through enhanced training and development programs
to help staff make better procurement decisions.
The Program identified
the need for legislative amendments to the ACT Government Procurement
legislation. Whilst broadly fit for purpose, the Government Procurement
Act 2001 (Act) and Government Procurement Regulation 2007 (Regulation) have
not been reviewed or significantly updated since 2007. This has meant parts of
the legislative framework governing procurement no longer supported contemporary
procurement activities. Parts of the legislation were potentially inconsistent
with procurement best practice and efficiencies in other Australian
Jurisdictions, not reflective of accountability/decision making in procurement
and may over time become misaligned with international trade obligations.
Through consultation under the Program a key area of feedback was that
the current legislative framework could generally benefit from better
clarification, enhanced definition and a strengthening of the prescribed role
and functions of the Government Procurement Board.
The Government
Procurement Amendment Bill 2023 (Bill) aims to address inconsistency
issues, to ensure the Act and Regulation are contemporary, and draw upon best
practice and are fit for purpose. The Bill also makes changes which support the
recommendations that require legislative change as a result of the
Auditor-General’s Performance Audit Report titled “Activities of the
Government Procurement Board”.
The amendments clarify the
Board’s roles, obligations, and composition in addition to the matters
that need to be referred to the Board for consideration. In light of the
Auditor-General’s recommendations, matters referred to the Board will be
threshold and risk based, in addition to these, procurements can also be
referred to the Board during the planning and sourcing stage of the procurement
lifecycle. The Bill further strengthens the Board’s functions and
governance with a suitable process of escalation when the Board considers that
unmitigated risks are not being adequately addressed. The Bill establishes the
requirement of the Board to annually report to the Minister on the performance
of the Board during the year in improving the processes and management of
procurements and whether any conflicts of interest were identified within the
Board.
The Board’s role and obligations are proposed to be
clarified in an enhanced Terms of Reference in subordinate legislation, and
supported by forthcoming instruments which will set the Board’s Strategic
Directions, support the compliance of any Whole of Government procurement
practices and provide the appropriate authorising environment for the Board in
meeting its objectives.
The combination of updated legislation,
legislative instruments and new terms of reference will ensure that the Board
has appropriate power and authority and that Territory entities are clear on
their accountabilities. Changes to the Government Procurement Board resulting
from this Bill will ensure that the Board is operating with optimal efficiency
and effectiveness and will reduce the duplication of work by focusing on fewer,
higher-risk procurements.
The Bill proposes changes to the quotation and
tender thresholds that determine the way in which the ACT Government approaches
the market. Under the proposed amendments open market approaches will occur for
goods and services procurements with a value of $500,000 or more, or for the
procurement of services related to construction with a value of $1,000,000 or
more.
These changes further support the ACT Government’s
compliance with the Government Procurement (Charter of Procurement Values)
Direction 2020 by providing for a process of exemptions from the quotation and
tender thresholds where Territory entities seek a quote directly from Certified
Aboriginal and Torres Strait Islander enterprises. This updated process of
exemptions from the tender and quotation thresholds will also be available where
the Territory entity seeks two quotes with one quote from each of the following,
a local business or a Small to Medium Enterprise.
Amending the quotation
and tender thresholds aligns with the feedback the ACT Government heard from our
suppliers during the development of the Reform Program. In addition, these
changes bring the ACT in closer alignment with the thresholds of the NSW and
Commonwealth Governments, further supporting our local suppliers through
consistent approaches to market.
Value for money considerations have been
expanded to ensure that the pursuit of value for money is not just to achieve
the best available procurement outcome but is to seek the best available outcome
for the procurement that maximises the overall benefit to the Territory. The
Government Procurement Rules established under the Bill will be used to issue
guidance in relation to maximising the overall benefit to the Territory. This
value for money test in the procurement also supports the operation of efficient
and effective use of resources as requirement under the Financial Management
Act 1996.
Concerns about probity in procurement undermine public
trust and increase the risk of the Territory’s exposure to reputational
damage and/or financial loss. A new section in the Act has been included to
ensure that all procurements are conducted in accordance with the ACT
Government’s Probity Principles.
The amendments made under this
Bill strengthen the procurement decisions of the ACT Government and ensure that
public funds are managed appropriately through robust and transparent
procurement processes.
CONSULTATION ON THE PROPOSED APPROACH
Consultation on the changes
in the Bill occurred through the broader Procurement Reform Program and
associated executive forums. A significant number of amendments were also
informed by the Auditor-General General’s Performance Audit Report titled
“Activities of the Government Procurement Board”.
The ACT
Government accepted all recommendations arising from the Auditor General’s
Report and the proposed Bill gives effect to the areas relating to the
Government Procurement Board that require legislative amendments. The contents
of the Performance Audit Report were extensively socialised within Government
and developed through consultation, analysis and research.
Consultation
to inform the Bill included:
• A survey of all registered suppliers of
Tenders ACT.
• Insights from the Procurement Workshop – Insights
Report by the Better Regulation Taskforce.
• The establishment of a key
internal stakeholder group which consisted of senior representatives from
Directorates and agencies across the Territory, which undertake procurement
activities both frequently and infrequently.
• A Procurement Review
Advisory Group and feedback sought from the ACT Government Procurement Community
of Practice.
• The ACT Government Solicitor.
In 2019, the Procurement Review Advisory Group collated a comprehensive
list of changes and additions to the Act and the Regulation. This work continued
through a working group under the auspices of the Procurement Community of
Practice.
Stakeholders communicated that aspects of the Act are confusing
or are inconsistently interpreted, present delays in application, and that there
is an ongoing need for legal advice to interpret basic concepts such as the
definition of procurement. The proposed approach addresses these issues by
clarifying concepts amongst a range of other improvements focused on
transparency and consistency.
The provisions within this Bill have a marginal potential impact on an individual’s human rights.
Namely, this Bill has the potential to engage and promote an individual’s right to privacy and reputation, as under section 12 of the Human Rights Act 2004 (ACT), through changes to the confidential text provisions.
Rights engaged
The right to privacy and reputation is engaged and promoted by this Bill through automatically considering personal information as confidential text to ensure that individuals are not identifiable through their participation in ACT Government procurements.
Rights Promoted
Changes to the grounds for confidential text, to include that personal information is automatically considered confidential text, will promote the right to privacy and reputation for individuals and organisations engaging in public procurement with the ACT Government. These changes will ensure that no individuals will be identifiable due to information uploaded to the ACT Government Notifiable Contracts Register or Notifiable Invoice Register.
Rights Limited
No human rights will be limited by this Bill.
GOVERNMENT PROCUREMENT AMENDMENT BILL
2023
Human Rights Act 2004 - Compatibility Statement
In accordance with section 37 of the Human Rights Act 2004 I have examined the Government Procurement Amendment Bill 2023. In my opinion, having regard to the Bill and the outline of the policy considerations and justification of any limitations on rights outlined in this explanatory statement, the Bill as presented to the Legislative Assembly is /is not consistent with the Human Rights Act 2004.
..........................................................
Shane Rattenbury MLA
Attorney-General
This clause provides that the name of the Act is the Government Procurement Amendment Act 2023
The clause provides that this Act commences on 1 July 2024
This Act amends the Government Procurement Act 2001 and the Government Procurement Regulation 2007
An Act about procurement by Territory entities for the Territory, and for other purposes
omit see section 3
substitute see section 6
Omit
renumbered as sections 3 and 4
This clause provides that the meaning of procurement will be updated and clarified to mean:
(a) the process by which a Territory entity acquires goods or services by any contractual means, including purchase, lease or rent (with or without an option to buy), or exchange, including any legal or equitable estate or interest in land or deals in a right, power or privilege over, or in relation to, land as a sublease or licence over land, or part of land, in which the Territory or the Territory entity is the sublessee or licensee; and
(b) includes the process by which a Territory entity disposes of goods by any contractual means, including sale. The definition also provides that procurement includes a procurement on behalf of a Territory entity acting solely on behalf of another entity or vice versa.
However, procurement does not include acquiring goods or services for resale or for use in the production of goods for resale and does not include an acquisition of goods or services by a Territory entity from another Territory entity or a dealing in any legal or equitable estate or interest in land or a dealing in a right, power or privilege over, or in relation to, land other than those established as a procurement.
Additionally, a Regulation may prescribe additional instances of what is or isn’t procurement under the Act. The inclusion of the term ‘contractual means’ provides greater alignment with Free Trade Agreements.
This clause provides that the definition of a Territory entity will be
updated to mean
(a) A directorate, or
(b) The Office of the Legislative
Assembly, or
(c) An officer of the Legislative Assembly, or
(d) A
Territory authority or any other entity prescribed by Regulation
This clause provides that in undertaking a procurement, a territory entity
must ensure that the procurement is undertaken with probity. A procurement
undertaken by a Territory entity is undertaken with probity if:
(a) the
Territory entity’s behaviour is ethical and there is evidence of this
behaviour, and
(b) the procurement is undertaken with integrity, uprightness
and honesty
The Value for Money section establishes that the responsible chief executive for a Territory entity must ensure any decision achieves value for money. Value for money is further clarified to establish that in relation to a procurement this is the best available outcome that maximises the overall benefit to the Territory.
Examples are provided of what activities are not allowed unless value for money has been adequately achieved. Value for money decisions must now be recorded in writing as soon as practicable after making the decision. Further provisions are included to ensure that probity principles are demonstrated in value for money decisions.
This part establishes that a procurement contract is a contract entered into by a Territory entity and another entity for procurement under the Act and includes any document prescribed by regulation.
Establishes that a procurement contract or any amendment must be in writing.
This establishes that the part applies to a procurement contract entered into by a Territory entity with an excluded body or an excluded body acting on behalf on a Territory entity.
This provides that the meaning of notifiable contracts will be updated to state that notifiable contracts refer to procurement contracts with a total consideration of at least the prescribed amount.
This definition also includes standing-offer arrangements and contracts entered into under a standing-offer arrangement but does not include a procurement contract of a kind prescribed by regulation.
This provides that the meaning of notifiable invoice which is an invoice for goods or services procured by or provided to the Territory entity under a procurement contract and includes invoices to the prescribed amount.
This provides that the Director-General must keep a register of notifiable contracts and invoices and that the registers must be kept electronically.
This provides that the regulation may prescribe the information included in the register for each notifiable contract and notifiable invoice. Further the provisions ensure that any confidential text in the procurement contract or invoice must not be disclosed on the register.
Establishes the meaning of confidential text in a notifiable procurement contract. This includes the new requirement that provides that personal information for the purposes of the Information Privacy Act 2014 is confidential text.
This section gives effect to the parties of a contact proposing parts of the contract be confidential text in relation to a notifiable procurement contract.
This provides that the grounds for confidential text will be clarified to include any information that would cause unreasonable detriment to the Territory or another party to the contract or would reasonably have a significant adverse effect on the financial, legal or property interests of the Territory or a Territory entity.
This provides that the text of a notifiable contract must not be confidential unless a confidentiality clause is included, and it does not limit the disclosure of information.
This provides that the confidentiality clause in relation to a notifiable contract is void if the clause in the contract contravened section 12 or does not comply with section 13.
This provides that the Auditor General can request a copy of the notifiable contract and any other contract or other contract information requested.
This provides that if confidential text or information about confidential text is disclosed under this part, the disclosure does not affect the continuing force of the obligation of confidence.
This part does not affect any other law applying in the ACT about the disclosure of documents or information.
This provides that the responsible Territory entity must ensure that part 2A is drawn to the attention of parties intending to provide a good or service for which the invoice is being raised.
This provides that the part does not affect any other law in the ACT about the disclosure of documents or prevent responsible Territory entities from making available information otherwise than as required by this part.
This provides that the Territory or Territory entity is not civilly liable to an entity that is a party to a notifiable contract, an entity issuing a notifiable invoice, or to anyone else, for anything done honestly under this part.
This applies to a procurement by a Territory entity where a quote is received from the parties identified in the Act and establishes the parts that do not apply.
Clause 13 Meaning of territory-funded work—pt 2B Section 22F (1), definition of territory-funded work
omit services or works that are for a territory entity.
substitute services that are for a Territory entity.
omit services or works.
substitute services.
Clause 15 Section 22F (1), definition of territory-funded work, paragraph (b)
Substitute
(b) services that are primarily for construction work (other than 5 excluded services);
omit services or works
substitute services
substitute
excluded services means services prescribed by regulation.
Substitute to Division 2B.2 requirements for procurement by Territory entity
Amended to omit “territory entity” and substitute with “Territory entity”
Amended to omit “A territory entity must not enter into a contract for procurement” and substitute with “A Territory entity must not enter into a procurement contract”
Amended to omit “contracts” and substitute with “procurement contracts”
Amended to omit “territory entity” and substitute with “Territory entity”
Amended to omit “territory entity” and substitute with “Territory entity”
Substitute (3) The registrar may request information from a Territory entity to enable the registrar to decide whether the entity that holds a secure local jobs code certificate is required to do so under a procurement contract with the Territory entity.
Amended to omit “territory entity” and substitute with “Territory entity”
Amended to omit “territory entity” and substitute with “Territory entity”
Amended to omit “territory entity” and substitute with “Territory entity”
Renumbered as part 3
Substitute Application-pt 3
omit “contract entered into by the Territory or a territory entity for procurement” substitute “procurement contract”.
Renumber as section 23
substitute 44 Definitions—pt 3
substitute commercial account means an account given to a Territory entity for the payment of money in relation to goods or services provided to a Territory entity under a procurement contract.
omit the Territory or.
Renumber as section 24.
substitute (1) This section applies if— (a) 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 entity pay interest on the amount of the account that remains unpaid from time to time after the payment date. (2) The Territory entity is liable to pay the creditor a further amount by way of interest on the amount of the account that remains unpaid from time to time.
Renumber as section 25.
omit “in a contract” substitute “in a procurement contract”.
omit 43 substitute section 23
Renumber as section 26
Renumber as section 27
This establishes the Government Procurement Board.
The functions of the Board will be changed from reviewing and giving advice to review and provide recommendations. These measures will respond to Recommendation 2 from the Auditor-General’s Performance Audit Report on the Activities of the Government Procurement Board through clearly articulating the Board’s purpose and providing a statement of purpose.
The Board will:
• review and make recommendations in relation to
procurement as prescribed under the Regulation.
• review and endorse
whole of government procurement practices.
• recommend the Minister
make a direction under the regulation about whole of government procurement
practices.
• provide advice to the Minister on any issue relevant to
procurement by Territory entities.
• review and, if appropriate,
endorse practices to be used by Territory entities for managing procurements
(endorsed procurement practices).
• to recommend that the Minister give
a direction about an endorsed procurement practice to Territory entities under
section 51B (Procurements practices, policies and procedures).
• to
provide advice to the Minister on any issue relevant to procurements by
Territory entities or the operation of this Act; and
• to exercise any
other function given to the board under this Act or any other territory law.
This provides that a new section will be created regarding the recommendations of the Board. This section states that a responsible chief executive for a Territory entity must ensure that the entity, as far as practicable, complies with the recommendations of the Board.
If the recommendations of the Board are not complied with, the Board may require the procurement to come back to the Board and the Board may make further recommendations on this matter to the CEO or governing board.
If the procurement is in the planning period and the Board considers that its further recommendations have not been addressed, or not been adequately addressed, the Board must refer the matter to the responsible Minister for the Territory entity.
This escalation process post-Board consideration will action Recommendation 10 and 15 of the Auditor-General’s Performance Audit Report on the Activities of the Government Procurement Board.
This provides for the constitution of the members of the Board. This provides for members to be appointed by the Minister and provides that the Chairperson position of the Board be held by a non-public employee. The position of deputy chairperson must be held by a public employee.
The appointment of these members must be ended if the Chairperson becomes a public employee, or the deputy chairperson is no longer a public employee.
This measure responds to Recommendation 11 of the Auditor-General’s Performance Audit Report on the Activities of the Government Procurement Board which focuses on enhancing Board independence through requiring that the position of Board Chairperson be held by a non-public employee.
Board members – appointment (33)
This provides the process for the appointment of Board members.
This provides that the regulation may prescribe the term of appointment and any conditions.
This provides the circumstances and penalties for a Board member who commits an offence.
This provides the circumstances where an appointment can be ended.
Renumber as part 5.
substitute 48 Meaning of reviewable decision—pt 5.
Renumber as sections 37, 38, 39 and 40.
Renumber as part 6.
Amounts inclusive of GST (41)
Amounts inclusive of GST. An amount mentioned in this Act is inclusive of any GST payable in relation to the amount.
This provides that the Minister may make rules in relation to procurements undertaken by Territory entities. Government Procurement Rules will include guidance in relation to value for money.
Noting these rules will be a disallowable instrument.
This provides that the Minister may give directions about government procurement practices.
This provides that if a Territory entity is required to prepare an annual report under the Annual Reports (Government Agencies) Act 2004, this report must include whether the entity has been compliant with the Act, and if not compliant, must detail why the entity has not complied.
This provides for who can make a regulation under the Act and what a regulation can prescribe.
This provides for transitional arrangements from the current Act, and this is particularly relevant for appointments of the Government Procurement Board.
This provides that a regulation may prescribe transitional matters in the enactment of the Act.
This provides that the transitional arrangement expires 2 years after the day it commences.
omit “(see s 36)” substitute “see s 19)”.
omit part 3 (Notifiable contracts) substitute part 2 (Notifiable contracts and notifiable invoices)).
omit section 35 (1) substitute section 18 (1) and (2).
Insert GST and territory instrumently.
omit section 5 substitute section 28.
substitute commercial account, for part 3 (Interest on commercial accounts)— see section 24. confidential text, of a notifiable contract.
Notes the definition of construction work is referenced under the Work Health and Safety Regulation 2001, section 289.
Clause 57 Dictionary definition of a contract
contract includes a contract as amended.
Clause 58 Dictionary, new definitions
goods include intellectual property
goods or services includes goods or services related to construction work.
omit
substitute notifiable contract, for part 2 (Notifiable contracts and notifiable invoices)—see section 12.
omit
substitute notifiable invoice, for part 2 (Notifiable contracts and notifiable invoices)—see section 13.
omit
substitute payment date, for a commercial account, for part 3 (Interest on commercial accounts)—see section 24.
Clause 65 Dictionary, new definition of probity
Insert probity -see section 7.
Clause 66 Dictionary, definition of procurement
substitute procurement—see section 5.
insert procurement contract—see section 8.
omit
insert register—see section 21A (1).
substitute relevant date, for the payment of a commercial account, for part 3 (Interest on commercial accounts)—see section 24.
substitute responsible chief executive officer, for a Territory entity, means––
(a) if the entity is a directorate—the responsible director-general of the directorate under the Financial Management Act 1996; or
(b) if the entity is the Office of the Legislative Assembly—the clerk of the Legislative Assembly; or
(c) if the entity is an officer of the Assembly—the officer; or
(d) if the entity is a territory authority—the chief executive officer of the authority under the Financial Management Act 1996; or
(e) if the entity is prescribed by regulation—the person prescribed by regulation.
responsible Territory entity, for a procurement contract, means—
(a) the Territory entity that is, or will be, responsible for the administration of the contract; or
(b) if a Territory entity administers, or will administer, the contract for another Territory entity—the other Territory entity.
reviewable decision, for part 5 (Notification and review of decisions)—see section 37.
insert standing-offer arrangement means an arrangement or agreement to supply stated goods or services on agreed terms, including pricing, that may be procured from time to time during a period stated in the arrangement or agreement. Examples could include a common use arrangement, a deed of standing offer, and head agreement for instance.
substitute tenderer, in relation to a procurement, means an entity that submits a quote, tender or other response in relation to the procurement. Territory entity—see section 6.
insert value for money—see section 8 (1).
insert
Dictionary The dictionary at the end of this regulation is part of this regulation.
Note 1 The dictionary at the end of this regulation defines certain terms used in this regulation and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘supplier—see section 6 (2)’ means that the term ‘supplier’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost definition) applies to the entire regulation unless the definition, or another provision of the regulation, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
This establishes what is not a procurement.
This provides a list of prescribed Territory entities subject to the Act and Regulation.
This establishes that the Labour Relations, Training and Workplace Equity Plans and a plan made in relation to the Local Industry Participation Plan are prescribed documents under the procurement contract.
Division 2.1 Preliminary
Application – pt 2 (4)
This outlines procurements by a Territory entity where the part does not apply.
Delegation by responsible chief executive officer (5)
This provides that the responsible chief executive officer for a territory entity may delegate the officer’s functions under this part to a public employee.
This clause provides that the quotation and tender thresholds will be amended
as following:
• low-value procurements under $25,000, will require a
single quote that must be recorded in writing.
• Limited Tender
processes will require that at least three written quotes be sought for
procurements between $25,000 and $500,000 for goods and services and between
$25,000 and $1,000,000 for construction procurements.
• Any
procurements above these thresholds must use a public tender.
The open tenders must be invited electronically for at least 25 days or 10 days where the Territory entity has published a notice electronically for at least 40 days (but not more than 12 months) before the first day the invitation is advertised.
This section establishes the other grounds for exemptions that a responsible chief executive for a Territory entity can apply under section 9 or section 10.
This provides the circumstances that a chief executive officer of a Territory
entity can in writing exempt the Territory entity from a limited tender
procurement, and provides that specific exemptions from the tender and quotation
thresholds will be available where:
• the Territory entity seeks at
least one written quotation from a Certified Aboriginal and Torres Strait
Islander Enterprise.
• the Territory entity seeks two quotations, one
from a local business and one from a Small to Medium Enterprise.
This provides the circumstances that a chief executive officer of a Territory entity can in writing exempt the Territory entity from an open tender procurement.
This provides that the responsible chief executive officer for a Territory entity exempts the Territory entity under section 9 or section 10 for a procurement, the officer may, in writing, direct the Territory entity to do 1 or more of the following:
(a) seek a stated kind or number of written quotations for the procurement;
(b) seek a written quotation or invite a tender from a stated supplier for the procurement.
This provides the requirement to publish a notice of a procurement electronically.
This provides that a Territory entity must not accept a tender for an open tender procurement if the tender was submitted after the last day during which the entity was accepting tenders unless the tender was late due to an act of omission by the Territory entity.
The prescribed amount is $25,000.
The prescribed amount is $25,000.
This provides that the register for notifiable contracts will include additional fields such as the Procurement Unique Identifier, the contract number, confidential text, application of the Secure Local Jobs Code and any other information under a direction.
This provides that the director-general must ensure that the prescribed information is available on a website approved by the director-general at all times.
This provides that the responsible for a notifiable contract and notifiable invoices must, within 21 days after the day the contract is made, enter any information into the Register.
substitute 12AA Prescribed value of services—Act, s 22F (1) (a) (ii)
12AB Excluded services—Act, s 22F (3).
omit or works
Clause 80 Section 12AC (1) (i)
omit the Territory or a territory entity substitute a Territory entity.
Clause 81 Parts 5 and 6 substitute
Part 5 Procurement Board
Division 5.1 Application – div 5.1 (13)
Provides the circumstances where the division applies to a Territory entity in relation to a standing-offer arrangement.
This provides that the Government Procurement Board must review procurements, including acquisitions and disposals, with an estimated total consideration of $7 million or more.
The Board must also review a procurement that, irrespective of its total estimated value, is in the plan phase (before an approach to market), and meets at least one of the following thresholds:
a) the procurement has been assessed by the procuring Territory entity as having a high or extreme risk rating;
b) the proposed procurement relates to information and communications technology that includes an element of system development or redesign;
c) the proposed procurement is for a cooperative or collaborative arrangement;
d) the procurement proposes to substantially change the scope or nature of an existing procurement contract;
This also provides that procurements can also be referred from any of the following: the Minister, the responsible chief executive officer for a Territory entity, the administrative unit responsible for administering the Act, Major Projects Canberra or a person that has been engaged to investigate the probity of the procurement or proposal.
The changes to the referral thresholds for Board consideration responds to Recommendation 1 of the Auditor-General’s Performance Audit Report on the Activities of the Government Procurement Board. As stated in the Audit Report, the dollar value‐based thresholds have not been revised since 2007 and due to the passage of time and the changing nature of Government procurements and the marketplace, including the increasing use of whole of Government standing arrangements and panels, these thresholds may no longer be appropriate.
Board members – term of appointment – Act, s 34 (a) (15)
This provides the term of appointments. This provides that the information on the term of appointment of Board members will be moved from the Act to the Regulation.
Board members – honesty, care and diligence – Act s 34 (b) (16)
This provides that members will exercise a degree of honesty, care and diligence in exercising their functions as a Board member.
Board members – disclosure of interests – Act, s 34 (b) (17)
This provides the process where a Board member who has a direct or indirect interest financial or otherwise or an interest that could conflict with their proper exercise of their function as a Board member.
Board members – ending appointment – Act s 36 (3) (c) (18)
Contravening either section 16 or section 17 without reasonable excuse is prescribed.
This provides the Board must meet at least once each financial year to discuss how the Board proposes to improve the processes and management of procurements undertaken by Territory entities under the Act.
Provides a new requirement for the Board to annually report to the Minister on the performance of the Board during the year in improving the processes and management of procurements and whether any conflicts of interest were identified within the Board.
Requiring the Board to report on conflicts of interest and their performance in improving the processes and management of procurements is in response to Recommendation 2 and 12 of the Auditor-General’s Performance Audit Report on the Activities of the Government Procurement Board.
This provides that a dictionary of terms used in the Regulation will be established at the end of the Regulation. This dictionary also includes references (signpost definitions) to other terms described elsewhere.