This memorandum introduces guidelines designed to clarify what information relating to the Government's contractual arrangements with the private sector should, and should not, be made public.
Cabinet has approved the guidelines which are detailed in the attached document. The guidelines will ensure a uniform approach across government to the disclosure of contract information to industry and the public in general.
The guidelines have immediate effect and apply to all contracts entered into by NSW Government agencies from the date of this memorandum (excepting those entered into by the Department of State and Regional Development which involve industry support). It should be noted that privately funded public infrastructure projects will additionally need to comply with the disclosure guidelines set out in the Guidelines for Private Sector Participation in the Provision of Public Infrastructure (first issued September 1995, revised October 1997 – Treasury Circular TC 95/15).
The guidelines provide agencies with a practical model to determine what items of contract information should be disclosed and what should remain confidential. The Chairman of the State Contracts Control Board is the authority nominated to provide independent advice to CEOs should any disagreement arise prior to contract award between an agency and the preferred tenderer as to what parts of a contract will be subject to disclosure.
Ministers should ensure that all agencies under their administration, including Government Trading Enterprises, adopt the disclosure guidelines and incorporate them into their tender documents and related policy manuals. The shareholding Ministers and boards of State Owned Corporations may also give consideration to voluntarily adopting the guidelines by incorporating them into their statements of corporate intent.
Issued by: Public Works and ServicesContact officer: Alan GriffinTelephone: 02 9372 8818Date: 27 April 2000
This memo superseded by M2007-01
Attachment to Premier's Memorandum No. 2000 - 11
GUIDELINES FOR THE DISCLOSURE OF INFORMATION IN NSW GOVERNMENT CONTRACTS
The purpose of this procedure is to provide NSW government agencies with a practical model to determine what items of information contained in government contracts with the private sector should be disclosed and what should remain confidential following award of the contract.
Schedules of disclosure (based on the disclosure requirements of Guidelines for Private Sector Participation in the Provision of Public Infrastructure) are attached. The schedules establish it is government practice to:
In addition to these guidelines privately funded public infrastructure projects will also need to comply with the disclosure guidelines set out in the Guidelines for Private Sector Participation in the Provision of Public Infrastructure.
Agencies must ensure that:
The information included in an unsuccessful tender is treated as commercial-in-confidence material. In exceptional circumstances, such information may be released with the agreement of the unsuccessful tenderer(s), or if the original tender provisions allowed for the release of such information.
Tender documents contain information about the disclosure process and schedules of items to be disclosed.
Tenderers are invited to nominate items they consider should not be disclosed and why.
In the event of disagreement between an agency and the 'preferred tenderer' as to what should be disclosed (for example, there may be some debate as to what the contractor claims as intellectual property) the agency seeks the advice of:
The ChairmanState Contracts Control BoardLevel 23 McKell Building2-24 Rawson PlaceSydney NSW 2000
The Chairman, who has responsibility for reviewing complaints about government tendering, may consult with the Crown Solicitor and may seek the advice of independent experts. The Chairman will provide a report and recommendations to the Chief Executive Officer of the agency involved in the tender.
Specific requests for information outside the ambit of the contract details, for example enquiries regarding an unsuccessful tender, continue to be dealt with under the provisions of the Freedom of Information Act.
Method of disclosure:
The table below shows the relationship between the size of the project and the level of contract disclosure.
Project size Level of disclosure Agency's responsibility: $0 to $100,000 Schedule 1 Items Disclose on request$100,000 and above Schedule 1 Items Disclose routinely$5M and above involving Schedule 1 and 2 Items Disclose routinelyprivate sector financing,land swaps, asset transfersand similar arrangementsAll information should be provided by the agency free of charge within 90 days of the award of the contract. The means of disclosing information is left to the discretion of the agency, but should take a form which is readily accessible to the public.
It is suggested that:
SCHEDULES OF DISCLOSURE
Items to be disclosed for all contracts
Additional items to be disclosed for contracts over $5 million involving private sector financing, land swaps, asset transfers and similar arrangements
Commercial –in-confidence information -
Items not to be disclosed for any contracts
NOTE: In addition to these guidelines privately funded public infrastructure projects will still need to comply with the disclosure guidelines set out in the Guidelines for Private Sector Participation in the Provision.