This Memorandum introduces revised guidelines to provide NSW government agencies with a practical model to determine what, how and when specific information arising from government tenders and contracts (including project deeds and other forms of agreements) with the private sector should be publicly disclosed and what information should remain confidential.

The purpose of the guidelines is to:

• set out the requirements for disclosing tender information;
• describe the new contract disclosure obligations in 
  section 15A of the Freedom of Information Act 1989 (FOI Act); and
• outline how requests for contract information, over and above that which is required to be disclosed under section 15A of the FOI Act, should be dealt with by agencies.

The guidelines are designed to provide greater consistency and transparency in government contracting. The guidelines apply to a wide range of contracts between the Government and the private sector including contracts relating to construction, infrastructure, property development, property transfers, goods and services, information technology, and leases. They apply irrespective of the method of tendering or negotiation, and include contracts awarded to suppliers from established standing offer panels and contracts for privately financed projects.

The requirements of these guidelines are to be implemented by all agencies including Government Trading Enterprises but excluding State Owned Corporations and Department of State and Regional Development contracts which involve industry support.

Under section 15A of the FOI Act and these guidelines, agencies must place the tender and contract information which is required to be routinely disclosed on the government tendering website https://tenders.nsw.gov.au, in addition to any other location agencies choose to use.

The contract disclosure requirements contained in section 15A of the FOI Act apply to contracts entered into by an agency on or after the commencement of those provisions on 1 January 2007. The requirements of these guidelines, which set out the additional contract information required to be disclosed on request, apply to contracts entered into by an agency on or after the date of this Memorandum. Prior contracts remain subject to Premier's Memorandum No. 2000-11 which is superseded by this Memorandum.

For disclosure of tender information (involving tender call details, details of respondents, and details of shortlisted entities in multi-stage tender processes), agencies are to be fully compliant by 31 March 2007.

An information kit with guidance on implementing the FOI Act provisions and these guidelines is available on https://tenders.nsw.gov.au/guidelines/. Agencies need to refer to this information kit without delay to achieve the above compliance timeframes.

State Owned Corporations are encouraged to give consideration to voluntarily adopting the guidelines.

Morris Iemma
Premier

 

GUIDELINES FOR THE PUBLIC DISCLOSURE OF INFORMATION ARISING FROM NSW GOVERNMENT TENDERS AND CONTRACTS

The purpose of these guidelines is to provide NSW government agencies with a practical model to determine what, how and when specific information arising from government tenders and contracts (including project deeds and other forms of agreements) with the private sector should be publicly disclosed and what information should remain confidential.

The guidelines:

• set out the requirements for disclosing tender information;
• describe the new contract disclosure obligations which are contained in section 15A of the Freedom of Information Act 1989 (FOI Act); and
• outline how requests for contract information, over and above that which is required to be disclosed under section 15A of the FOI Act, should be dealt with by agencies.

The requirements of these guidelines:

• are to be implemented by all agencies including Government Trading Enterprises (but excluding State Owned Corporations and Department of State and Regional Development contracts which involve industry support). Shareholding Ministers and boards of State Owned Corporations may give consideration to voluntarily adopting the guidelines;
• apply to all government contracts, as defined; and
• apply irrespective of the method of tendering or negotiation, and include contracts awarded to suppliers from established standing offer panels.

In these guidelines a reference to a 'government contract' or 'contract' has the same meaning as set out in section 15A of the FOI Act, being:

(a) a contract between an agency and a private sector entity under which the agency or private sector entity agrees:

(i) to undertake a specific project (such as a construction, infrastructure or property development project), or
(ii) to provide specific goods or services (such as information technology services), or
(iii) to transfer real property to the other party to the contract,

(b) a lease of real property where the parties to the lease are an agency and a private sector entity, but does not include a contract of employment.

In addition to the requirements in these guidelines, contracts for privately financed projects also need to comply with additional disclosure requirements set out in the "Working with Government - Guidelines for Privately Financed Projects" (see www.treasury.nsw.gov.au).

The description in these guidelines of the main obligations in the new FOI Act provisions is intended to assist agencies to implement those provisions and should not be taken to replace those legislative obligations. Agencies should be familiar with the precise requirements of the new FOI Act provisions and should, at all times, comply with those requirements.

Method of disclosure:

Tender call documents are to contain advice that there are public disclosure requirements associated with the tender process and contracts that are awarded and where those requirements can be accessed.

Tender and contract information required to be routinely disclosed is to be posted on the government website https://tenders.nsw.gov.au operated by the Department of Commerce in addition to any other location agencies choose to use. An Information Kit with contact details is available athttps://tenders.nsw.gov.au/guidelines/ to assist agencies in implementing the requirements of these guidelines.

Tender information shall remain posted on the website until the tender call process has been concluded and a contract either awarded or decision made not to award any contract. Contract information shall remain posted on the website for at least 30 days or until all work or services under the contract are completed, and/or all goods under the contract are supplied, whichever is the greater period.

Where a request is made for contract information which is not required to be routinely disclosed under section 15A of the FOI Act and which is not confidential, the agency, in consultation with the person making the request, shall determine the most suitable method of providing that information.

 

Tender information disclosure requirements

Agencies must ensure that information is disclosed as follows:

Tender Type

For all public calls for tender, expressions of interest or other such public callswhich may result in a contract with the private sector.

Level of disclosure

As a minimum:

· a concise description of the proposed works, goods or services the subject of the tender call;

· the date responses to the tender call close and where responses are lodged; and

· location of the tender call documents.

The names and addresses of all entities which submit responses.

Basis of disclosure

Routine public disclosure at the time tender calls are advertised.

Routine public disclosure within 7 days of the date tender calls closed.

Tender Type

In a multi-stage tender process.

Level of disclosure

The names and addresses of the shortlisted entities, except where such disclosure is likely to compromise the competitiveness of the subsequent tender process.

Basis of disclosure

Routine public disclosure within 7 days of these entities being advised of their shortlisting.

 

Contract information disclosure requirements

The FOI Act requires the routine disclosure of contract information as follows:

 

Contract size and type

Class 1 contracts

All government contracts with estimated value $150,000 or above).

Level of disclosure

The information set out in schedule 1.

Basis of disclosure

Routine public disclosure within 60 days after the contract becomes effective.

 

Contract size and type

Class 2 contracts

Class 1 contracts (i.e government contracts with estimated value $150,000 or above) which also:

- result from a direct negotiation where there has not been a tender process; or

- have been the subject of a tender process and where the final contract terms and conditions are substantially negotiated with the successful tenderer (this includes alliance type contracts); or

- involve operation or maintenance obligations for 10 years or longer; or

- involve a privately financed project as defined by relevant Treasury guidelines; or

- involve a transfer of land or other asset to a party in exchange for the transfer of land or other asset to an agency.The information set out in schedule 1.

Level of disclosure

The information set out in schedules 1 and 2.

Basis of disclosure

Routine public disclosure within 60 days after the contract becomes effective.

 

Contract size and type

Class 3 contracts

Class 2 contracts where the estimated value of the government contract is $5 million or more.

Level of disclosure

The information set out in schedules 1 and2 and the complete contract, less confidential information.

Note: if some or all of a class 3 contract is not disclosed for reasons of confidentiality, the agency is to disclose:

· the reasons for not publishing the contract or provisions;

· a statement as to whether the contract or provisions will be published and, if so, when; and

· where some but not all of the provisions of the contract have been disclosed, a general description of the types of provisions that have not been published.

Basis of disclosure

Routine public disclosure within 60 days after the contract becomes effective.

 

Requests for disclosure of additional contract information

A person may make a specific request to an agency for any item of contract information contained in schedules 1 or 2, or for a copy of a contract, which is not required to be routinely disclosed under section 15A of the FOI Act. The agency must provide the requested contract information or the requested copy of the contract to the requesting person (less any confidential information) within 60 days of receiving the request.

Where a copy of a contract has been requested and some or all of the contract is not provided for reasons of confidentiality, the agency should disclose:

• the reasons for not providing;
• a statement as to whether the contract or provisions will be provided and, if so, when; and
• where some but not all of the provisions of the contract have been provided, a general description of the types of provisions that have not been provided.

Disclosure of amendments or variations to contract information under the FOI Act

The FOI Act requires that, if there is an amendment to the contract terms or a material variation made under the contract that changes information already routinely disclosed under the FOI Act, the agency must ensure that the information concerning the change is routinely disclosed within 60 days after such amendment or variation becomes effective, less any confidential information. In the case of class 3 contracts, the full amendment or material variation, less any confidential information, must be disclosed within the 60 day timeframe.

Confidential information

None of the disclosure obligations contained in the FOI Act, or the requirements for disclosing tender information or a copy of a contract or information in relation to a contract under these guidelines, require the disclosure of:

• the commercial-in-confidence provisions of a contract (as defined in schedule 3);
• details of any unsuccessful tender;
• any matter that could reasonably be expected to affect public safety or security; or
• information which would be exempt from disclosure if it were the subject of an application under the FOI Act.

Where such confidential information is withheld, the agency must inform the requesting person that access to that information may be sought in accordance with the FOI Act. This will enable a person seeking the information to have the appeal rights available under the FOI Act.

Tenderers are to be invited to nominate items they consider are confidential and why.

In the event of disagreement between an agency and the tenderer or a requesting person or other member of the public as to what should be disclosed with regard to contract information (for example, if there is some disagreement as to what constitutes intellectual property) the agency is to obtain the opinion of:

Fees for disclosure:

All tender and contract information required to be routinely disclosed under the FOI Act is to be provided by an agency free of charge.

For contracts valued at less than $150,000, Schedule 1 information, if requested, is also to be provided free of charge.

In other cases, where a copy of a contract or information in relation to a contract is requested which is not required to be routinely disclosed under the FOI Act but which is required to be provided under these guidelines, the cost of providing such information may be recovered from the person making the request on an equivalent basis to FOI Act requests.

SCHEDULES OF DISCLOSURE FOR CONTRACTS

SCHEDULE 1
(Section 15A(2) FOI Act)

The schedule 1 information required to be disclosed is as follows:

(a) The name and business address of the contractor; 
(b) Particulars of any related body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) in respect of the contractor, or any other private sector entity in which the contractor has an interest, that will be involved in carrying out any of the contractor's obligations under the contract or will receive a benefit under the contract;
(c) The date on which the contract became effective and the duration of the contract;
(d) Particulars of the project to be undertaken, the goods or services to be provided or the real property to be leased or transferred under the contract;
(e) The estimated amount payable to the contractor under the contract;
(f) A description of any provisions under which the amount payable to the contractor may be varied; 
(g) A description of any provisions with respect to the renegotiation of the contract; 
(h) In the case of a contract arising from a tendering process, the method of tendering and a summary of the criteria against which the various tenders were assessed; and 
(i) A description of any provisions under which it is agreed that the contractor is to receive payment for providing operational or maintenance services.

SCHEDULE 2
(section 15A(3) FOI Act)

The schedule 2 information required to be disclosed is as follows:

(a) Particulars of future transfers of significant assets to the State at zero, or nominal, cost to the State, including the date of their proposed transfer; 
(b) Particulars of future transfers of significant assets to the contractor, including the date of their proposed transfer; 
(c) The results of any cost-benefit analysis of the contract conducted by the agency; 
(d) The components and quantum of the public sector comparator if used; 
(e) Where relevant, a summary of information used in the contractor's full base case financial model (for example, the pricing formula for tolls or usage charges); 
(f) Where relevant, particulars of how risk, during the construction and operational phases of a contract to undertake a specific project (such as construction, infrastructure or property development), is to be apportioned between the parties, quantified (where practicable) in net present-value terms and specifying the major assumptions involved; 
(g) Particulars as to any significant guarantees or undertakings between the parties, including any guarantees or undertakings with respect to loan agreements entered into or proposed to be entered into; and 
(h) Particulars of any other key elements of the contract.

SCHEDULE 3
(definition of 'commercial-in confidence' provisions in section 15A(14), FOI Act)

Commercial-in-confidence information which is not to be disclosed is as follows:

• The contractor's financing arrangements;
• The contractor's cost structure or profit margins;
• The contractor's full base case financial model;
• Any intellectual property in which the contractor has an interest; or
• Any matter whose disclosure would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.