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.

Bob Carr
Premier

Issued by: Public Works and Services
Contact officer: Alan Griffin
Telephone: 02 9372 8818
Date: 27 April 2000

This memo superseded by M2007-01

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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.

The procedure:

• is to be implemented by all agencies including Government Trading Enterprises (but excluding the Department of State and Regional Development). The procedure may also be implemented by those State Owned Corporations that include the guidelines in their statements of corporate intent by way of agreement between their shareholding Ministers and boards.
• applies to all procurement contracts (construction, infrastructure, property, goods and services, information technology etc).

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:

• vary the disclosure of information according to the size of the project;
• limit the extent of commercial-in-confidence material to very specific areas and not disclose it unless required by law; and
• treat the information in an unsuccessful tender as commercial-in-confidence and not disclose it unless required by law.

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:

• For all contracts above $100,000 (or where government transfers ownership of property over the value of $100,000) a summary of the main items of the contract listed in Schedule 1 is routinely released within 90 days of award of the contract. (Note: For contracts under $100,000 Schedule 1 items need only be released upon request).
• For contracts over $5 million involving private sector financing, land swaps, asset transfers and similar arrangements a summary of the main items of the contract listed in Schedule 1 and 2 is routinely released within 90 days of award of the contract.

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 Chairman
State Contracts Control Board
Level 23 McKell Building
2-24 Rawson Place
Sydney 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 routinely
private sector financing,
land swaps, asset transfers
and similar arrangements

All 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:

• where an agency is required to routinely disclose contract information (Schedule 1 Items for all projects over $100,000 and Schedule 1 and 2 items for projects over $5M which involve private sector financing, land swaps, asset transfers and similar arrangements) the information be either posted on a notice-board accessible to the public or released on the agency's Internet site; and
• where a request is made to an agency for contract information which is not routinely disclosed (Schedule 1 items for projects under $100,000) the agency, in consultation with the entity making the request, shall determine the most suitable method of delivering that information.

SCHEDULES OF DISCLOSURE

SCHEDULE 1

Items to be disclosed for all contracts

• Details of contract (description of project to be completed or goods/services to be provided or property to be transferred; commencement date of the contract; the period of the contract);
• The full identity of the successful tenderer including details of cross ownership of relevant companies;
• The price payable by the agency and the basis for future changes in this price;
• The significant evaluation criteria and the weightings used in tender assessment;
• Provisions for re-negotiation (where applicable).

SCHEDULE 2

Additional items to be disclosed for contracts over $5 million involving private sector financing, land swaps, asset transfers and similar arrangements

• Details of future transfers of assets of significant value to government at no or nominal cost and details of the right to receive the asset and the date of the future transfer;
• The identification and timing of any assets transferred to the contractor by the agency;
• All operation and/or maintenance provisions in the contract;
• The basis for changes (price variation clauses) in the price payable by the agency;
• The results of cost-benefit analyses of the successful tender;
• The risk sharing in the construction and operational phases of the project, quantified in net present value terms (where possible) and specifying the major assumptions involved;
• Significant guarantees or undertakings between the parties, including loans entered into or agreed to be entered into;
• To the extent not covered above, the remaining key non-commercial-in-confidence elements of the contractual arrangements. 

SCHEDULE 3

Commercial –in-confidence information -

Items not to be disclosed for any contracts

• The contractor's financing arrangements;
• The contractor's cost structure or profit margins;
• Items of the contractor having an intellectual property characteristic (eg. non-tangible property that is the result of creativity, such as patentable ideas or inventions, trademarks, copyrights, etc.);
• Any other matters where disclosure would place the contractor at a substantial commercial disadvantage with its competitors both at the time of entering into the contract and at any later date when there would be an effect on future competitive arrangements.

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.