Skip to Content

You are in the Finance archive | Archive Home Page | Return to the Finance homepage | Contact Us

The Department of Finance Archive

The content on this page and other Finance archive pages is provided to assist research and may contain references to activities or policies that have no current application. See the full archive disclaimer.

Listing of Contract Details on the Internet (Meeting the Senate Order on Departmental and Agency Contracts) - FMG 8

Published January 2004

With the release of revised Commonwealth Procurement Guidelines in January 2005, some of the procurement policy guidance documents released prior to January 2005 contain certain details and references, which are now incorrect.

All guidance documents should therefore be read in conjunction with the revised Commonwealth Procurement Guidelines to ensure the accuracy of all information presented.

  1. AusTender [External Site] has replaced the Gazette Publishing System (GaPS) and the Purchasing and Disposals Gazette,
  2. Guidance on Reporting Requirements available online,
  3. The threshold for reporting contracts and agreements in AusTender has increased from $2,000 or more to $10,000 or more.

Table of Contents

  1. Purpose
  2. Background
  3. The Government's policy
  4. Process chart for compliance
  5. Format and content of Internet listing
  6. 'Contracts' for the purposes of the policy
  7. Identification and treatment of confidential contract information
  8. The Minister's letter of compliance
  9. Audit of requirements under the policy
  10. References
  11. Attachments

1. Purpose

The Australian Government's policy on the Internet listing of contracts is an important accountability and transparency mechanism in Australian Government contracting activity.

The purpose of this guidance is to assist Financial Management and Accountability Act 1997 (FMA Act) agencies in complying with the Australian Government's policy on the Internet listing of contract details, based on the Governments responses to the Senate Order on departmental and agency contracts (the Order).

In particular, this guidance aims to:

  • assist agencies in understanding the basis and objectives of the policy;
  • provide clarification of the terms and requirements of the policy by grouping them under the associated themes and processes; and
  • provide links to further information related to the policy that will assist agencies to give effect to the policy.

The process for compliance with the policy is summarised in the high-level process chart.

Back to top

2. Background

On 20 June 2001, the Senate made an Order that required Ministers to table letters of advice that all agencies, which they administered, had placed on the Internet by the tenth day of the Spring and Autumn sittings of Parliament, lists of contracts which provide for consideration to the value of $100 000 or more. The list was to include all contracts that had not been fully performed and any other contracts entered into during the previous 12 months, and to indicate, amongst other things, whether the contracts contained any confidentiality provisions. The Senate varied the Order on 27 September 2001 to require additional information to be reported in the Internet listing and in the Ministers' letters, and in June 2003 to alter the reporting period and require additional date information to be reported on the listing. The Order was amended again on 4 December 2003 to provide for annual, rather than biannual, reporting by the Auditor-General on agency compliance with the elements of the Order.

The Order was informed by three reports of the Senate Finance and Public Administration References Committee (the Committee) tabled in June 2000, September 2001 and December 2002, as well as Australian National Audit Office (ANAO) Report No. 38 of 2000-2001: The Use of Confidentiality Provisions in Commonwealth Contracts [External Site] 1. The general principle (the reverse onus principle) espoused in these reports was that information in government contracts should not be protected as confidential unless there is a good reason to do so. In its report, the ANAO developed criteria to assist agencies in determining whether information in contracts should be treated as confidential.

The ANAO report also provided guidance on a possible new framework for dealing with the issue of confidentiality in contracts and disclosure of contractual information to parliamentary committees.

The Government responded to the original Order in August 2001; the amended Order of 27 September 2001 in June 2002; and the amended Order of June 2003, in June 2003. In essence, the Government agreed to comply with the spirit of the Order and advised that information regarding individual contracts would not be provided where disclosure would be contrary to the public interest, legislative requirements or a confidentiality undertaking that had been given. The Government also indicated that agencies' compliance would be progressive as agencies refined arrangements and processes to meet the requirements.

Commonwealth Procurement Guidelines

On 5 October 2001, the Government released the updated Commonwealth Procurement Guidelines (CPGs), which, in addition to confirming the requirement to comply with the spirit of the Order, stipulated that agencies should:

  • include provisions in tender documentation and contracts that alert prospective providers to the public accountability requirements of the Australian Government, including disclosure to Parliament and its Committees; and
  • consider, on a case-by-case basis, what might be commercial-in-confidence when designing any contract.

The CPGs were re-issued in February 2002 with no material changes to these requirements.

Guidance on Confidentiality in Contracts

Guidance to assist agencies in correctly classifying contract information is available online, Confidentiality throughout the Procurement Cycle and Additional Reporting on Confidentiality.

The purpose of the Guidance is to assist agencies to ensure that they enter into commitments to maintain confidentiality of commercial information in the context of procurement processes only where appropriate.

The Guidance provides agencies with:

  • criteria based on legal principle to assist them to decide if it is appropriate to agree to treat specific commercial information as confidential;
  • an approach to use to resolve with tenderers/contractors whether commercial information will be treated as confidential; and
  • advice on the use of appropriate contractual terms for confidentiality purposes.

Back to top

3. The Government's Policy

The Government's policy for the listing of contract details on the Internet encapsulates paragraphs 1 - 4, 8 and 9 of the Senate Order on departmental and agency contracts (4 December 2003) as set out below.

  1. There be laid on the table, by each minister in the Senate, in respect of each agency administered by that minister, or by a minister in the House of Representatives represented by that minister, by not later than 2 calendar months after the last day of the financial and calendar year, a letter of advice that a list of contracts in accordance with paragraph (2) has been placed on the Internet, with access to the list through the department's or agency's home page.
  2. The list of contracts referred to in paragraph (1) indicate:
    1. each contract entered into by the agency which has not been fully performed or which has been entered into during the previous 12 months, and which provides for a consideration to the value of $100 000 or more;
    2. the contractor, the amount of the consideration, the subject matter of each such contract, the commencement date of the contract, the duration of the contract, the relevant reporting period and the twelve-month period relating to the contract listings;
    3. whether each such contract contains provisions requiring the parties to maintain confidentiality of any of its provisions, or whether there are any other requirements of confidentiality, and a statement of the reasons for the confidentiality; and
    4. an estimate of the cost of complying with this order and a statement of the method used to make the estimate.
  3. If a list under paragraph (1) does not fully comply with the requirements of paragraph (2), the letter under paragraph (1) indicate the extent of, and reasons for, non-compliance, and when full compliance is expected to be achieved. Examples of non-compliance may include:
    1. the list is not up to date;
    2. not all relevant agencies are included; and
    3. contracts all of which are confidential are not included.
  4. Where no contracts have been entered into by a department or agency, the letter under paragraph (1) is to advise accordingly.
  5. This order has effect on and after 1 July 2001.2
  6. In this order:
    • "agency" means an agency within the meaning of the Financial Management and Accountability Act 1997; and
    • "previous 12 months" means the period of 12 months ending on either 31 December or 30 June, as the case may be.

Compliance with these requirements is subject to the following terms (as set out through the Government´s responses to the Order):

Chief Executives are also required to advise portfolio ministers of any sensitivity in relation to disclosure before publishing information on contracts entered into by their agency.

Other issues

The Order also requests (and the Auditor-General has agreed) that the Auditor-General report on agency compliance with the elements of the Order; and advises that the Senate Finance and Public Administration References Committee will report on the operation of the Order. The sections of the Order that relate to these matters are provided below:

  1. In respect of contracts identified as containing provisions of the kind referred to in paragraph (2)(c), the Auditor-General be requested to provide to the Senate, by not later than 30 September each year, a report indicating that the Auditor-General has examined a number of such contracts selected by the Auditor-General, and indicating whether any inappropriate use of such provisions was detected in that examination.
  2. In respect of letters including matter under paragraph (3), the Auditor-General be requested to indicate in a report under paragraph (5) that the Auditor-General has examined a number of contracts, selected by the Auditor-General, which have not been included in a list, and to indicate whether the contracts should be listed.
  3. The Finance and Public Administration References Committee consider and report on the first and second years of operation of this order.

Back to top

4. Process Chart for Compliance

Process Chart for Compliance

5. Format and Content of Internet Listing

The policy applies to all agencies subject to the FMA Act and relates to the range of contractual arrangements set out below. Two possible reporting templates that agencies have the discretion to use to meet their Internet listing requirements are:

Back to top

5.1 Contractual Arrangements Covered by the Policy

Whether or not an arrangement constitutes a contract for the purposes of the Government's policy will depend on an analysis of the intentions of the parties to the arrangement, the nature of the arrangement and whether the requisite formalities, if any, have been complied with.

To determine the arrangements to be reported, agencies should consider whether the arrangements:

Contracts for the purposes of the policy

Following is high-level guidance to assist agencies in determining what constitutes a contract for the purposes of the policy3, noting that agencies will also need to report contracts where they are the provider of goods and/or services or dispose of assets.

For the purposes of the policy (and the Order) the term 'contract' encompasses:

  1. agreements executed in the form of a deed; and
  2. simple contracts.

For a simple contract to exist, all of the following elements must be present:

  • an offer;
  • acceptance of an offer;
  • consideration (unless the contract is executed as a deed); and
  • an intention to create legal relations.

As a general rule, contracts must be reported when the amount being paid by or to the Commonwealth is $100 000 or more, and the agreement is for either a purchase or sale of goods, services or interests in land (including leases, whether the Commonwealth is lessor or lessee).

A summary table of the arrangements that are likely, and not likely, to be 'contracts' for the purposes of the policy, based on advice of the Australian Government Solicitor (AGS), is provided below. More detailed discussion of particular arrangements is provided in `Contracts´ for the purposes of the policy.

If agencies are still unsure of the legal status of particular arrangements they should consider seeking their own legal advice, noting that, consistent with the Government's commitment to transparency, they are encouraged to err on the side of disclosure.

Probably a 'Contract' for the Purposes of the Order

An arrangement will be a 'contract' for the purposes of the Order if that arrangement:

  1. meets the Contract Criteria; or
  2. is an arrangement documented in a deed,

and as well, meets the other criteria in the Senate Order.

Such an arrangement is likely to include:

  • a purchase of goods;
  • a purchase of services eg consultancy contract;
  • a purchase of land or a building;
  • a lease of premises;
  • an employment contract that does not involve a Certified Agreement (CA) or an Australian Workplace Agreement (AWA); and
  • an agreement between a body that is part of the Commonwealth of Australia, and an Australian Government body that is a separate legal entity to the Commonwealth of Australia.

Probably Not a 'Contract' for the Purposes of the Order

An arrangement will not be a 'contract' for the purposes of the Order if the arrangement:

  1. does not meet the Contract Criteria; or
  2. is not documented in a deed;

and/or the arrangement does not meet the other criteria in the Order.

Such arrangements are likely to include:

  • an employment arrangement that involves a CA or an AWA;
  • a statutory appointment;
  • an agreement between Australia and another nation State;
  • a political agreement between the Australian Government and a State or Territory;
  • a standing offer unless there has been consideration of $100 000 or over provided to the offeror to keep the offer open for a period of time; and
  • an agreement between Australian Government departments and agencies that are part of the Commonwealth of Australia.

Reporting of grants and funding agreements

Agencies are required to report grants and funding agreements where they meet the Contract Criteria and Order criteria outlined earlier and set out in detail in `Contracts´ for the purpose of the policy. Where grants and funding agreements qualify as 'contracts', and have substantially similar confidentiality provisions and other requirements of confidentiality, agencies have the discretion to report these arrangements either individually or through generic entries.

Where specific arrangements are not adequately covered by the generic entry
(eg due to a unique confidentiality provision) it is suggested that agencies report these arrangements separately.

If agencies decide to record generic entries for grants and funding agreements it is suggested that they include the following information in each of the key sections of the listing:

Suggested information to be included in each of the key sections of the listing
Information FieldSuggested Content
Contractor Multiple recipients qualified under the terms of [INSERT TITLE OF PROGRAMME/GRANT].
Subject matter [INSERT NUMBER] of substantially identical contracts with qualified recipients of grants/funding agreements under [INSERT TITLE OF PROGRAMME/GRANT] that relates to [GENERAL DESCRIPTION OF PROGRAM/GRANT].
Amount of consideration Amounts varying from [VALUE OF LOWEST SINGLE CONTRACT OVER $100 000] to [HIGHEST VALUE OF A SINGLE CONTRACT].

An aggregate of the total amount that will be paid in respect of grants and funding agreements under [INSERT TITLE OF PROGRAMME/GRANT] [consisting of an aggregate of all individual agreements with consideration of $100 000 or more] is [INSERT AGGREGATE FIGURE].
Commencement date Date that the first agreement was entered into.
Anticipated end date Date that which it is anticipated that the final agreement will end.
Whether contract contains provisions requiring the parties to maintain confidentiality of any of its provisions. As with individual contracts.
Other requirements of confidentiality As with individual contracts.
Reasons for confidentiality Agencies should provide all reasons for confidentiality that relate to the contracts by the generic entry.

Handy Tips

FMA Act agencies are subject to a range of whole-of-government contracts that require unique treatment for the Internet listing.

In the case of these arrangements it is necessary to decide if the arrangement is held at the agency or whole-of-government level.

For instance, the Australian Government car fleet is governed by an overarching contract between Lease Plan Australia Ltd (LeasePlan) and the Commonwealth. The Department of Finance and Administration manages this contract on behalf of the Commonwealth.

Schedule 1A to the contract is an agency-specific sub-agreement that each agency has been deemed to have executed with LeasePlan. Schedule 1A specifies the obligations applying to the lessee and lessor. As a result, each individual agency must report anticipated expenditure against this agreement, if valued over $100 000 in line with the policy (noting that the agreement will be a cumulative total of the anticipated value of vehicle leases entered into by the agency).

Following is a summary of Australian Government whole-of-government arrangements, along with the agencies that have responsibility for their management. If in doubt as to how to report these arrangements agencies should contact the agency responsible:

Back to top

5.2 Value of 'Contracts' to be Included

Agencies should report 'contracts' where the whole-of-life amount of consideration will be $100 000 or more (including GST). Consideration refers to the full amount to be paid or received by the agency in return for goods and/or services over the life of the contract.

Handy Tips

There are two categories of contracts that require unique treatment in terms of assessing the amount of consideration:

  • Contracts that do not contain a specified value

    For contracts that do not contain a specified value (eg demand-driven contracts) agencies should initially provide estimates of the expected 'whole of life' value of the contract. Subsequent listings may have notations, including either updated estimate expenditure on, or actual values of, the contract.
  • Standing offer arrangements

    Standing offers (including those executed as a deed) will only need to be reported on the listing when $100 000 or more has been provided to the offeror to leave the offer open for a period of time. In these instances the 'amount of consideration' reported on the listing will be the amount provided to the offeror to leave the offer open.

    Individual contracts valued at $100 000 or more created through the acceptance of the standing offer will be reported as separate contracts on the listing.

Back to top

5.3 Date of 'Contracts' to be Included

The listing should include all contracts with a consideration of $100 000 or more:

  • that have been entered into in the 12 months previous to the end of the reporting period (regardless of whether or not the contracts have been fully performed as at the end of the period); and/or
  • which have not been fully performed as at the end of the reporting period.

For the purposes of the Government's policy the end date will be that which is set out through the contract. If there is no end date set out through the contract then it will generally be the latter of the following events – final payment to the supplier or provision of the final goods and/or services under the contract.

The section Scenarios to assist agencies in determining the date of contracts that should be listed provides a number of scenarios to illustrate how agencies should interpret these requirements.

5.4 Categories of Exclusion

Although the Government's policy allows for the existence of certain contractual arrangements to be excluded from disclosure on the listing, with notification of such exclusion to be included through the Minister's letter of compliance, it is expected that this would happen only on rare occasions. Some specific categories that agencies should consider in determining whether contracts should be excluded from listing are as follows:

  • Disclosure of the existence of the contract would be contrary to the public interest.

    Agencies should use the Department of the Prime Minister and Cabinet guidelines on the scope of public interest immunity in Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters [External Site] as a guide to determine whether information regarding the existence of individual contracts should be protected as confidential.
  • Disclosure of the existence of the contract would be contrary to statutory secrecy provisions.

    A statutory secrecy provision is a provision set out through legislation, which requires that a certain category (or categories) of information be kept confidential.
  • Disclosure of the existence of the contract would be contrary to the Privacy Act 1988 [External Site].

    It is likely that such an undertaking would only relate to contracts entered into prior to the inception of the new accountability framework.

Handy Tips

Finance, in consultation with the ANAO, has developed standard categories of confidential information that agencies have the option to use at their discretion. These categories relate to the non-disclosure of specific aspects of the contract rather than the exclusion of the entire contract.

These categories are provided in the chapter Identification and treatment of confidential contract information.

Guidance regarding the notification of excluded contracts is provided through the Minister's letters of compliance chapter.

5.5 Other Information to be Included

Following is clarification of some of the general contract information to be included on the listing.

Discussion on the reporting of details of confidential contract information - including suggested reporting templates - is provided in the Identification and treatment of confidential contract information chapter.

Reporting of 'date' information associated with the listing4

Information regarding individual contracts

  • Commencement

    In most instances contracts will identify commencement date, where the commencement date is not specified agencies should list the date the contract was signed.
  • Duration

    To facilitate an understanding of the duration of the contract, agencies should report the identified or anticipated end date of the contract. If the end date is not set out in the contract itself, the end date will be the date whereby the latter of the following two events occurs:
    • final payment to the supplier; or
    • provision of the final goods and/or services under the contract.

Information regarding the listing

  • Relevant reporting period

    Agencies should clearly identify the calendar or financial year to which the listing relates. For instance, a listing that relates to the period from 1 January 2004 – 31 December 2004 would be referred to as the '2004 Calendar year listing', whilst a listing that relates to the period from 1 July 2004 – 30 June 2005 would be referred to as the '2004-2005 Financial year listing'.
  • Twelve-month period

    The list should indicate the twelve-month period relating to the contract listing. For instance, a listing that relates to the period from 1 January 2003 – 31 December 2003 should state 'Senate Order on departmental and agency contracts listing relating to the period 1 January 2003 – 31 December 2003'.

Compliance costs and methodology

Agencies should include an estimate of the cost of complying with this policy for each listing along with an overview of the method used to reach the estimate.

The estimate should be based upon the cost of the resources required to comply with the policy.

Regularity of listing updates

The approach to updating the listing is at the discretion of individual agencies. If agencies decide to update their listing on a continual basis it is important that, for future reference, they retain a copy of the list in the form that it took at the point when the Minister tabled the letter of compliance. Agencies should also include a notation on their website advising of their approach to updating the listing.

Handy Tips

Agencies can use a number of tools to assist them in establishing and maintaining their Internet listing in an efficient, effective and timely manner. In particular, agencies may wish to consider:

  • establishing a contract register for the recording and reporting of the relevant information for all contracts;
  • implementing quality assurance processes, as necessary, to ensure the completeness and accuracy of the contract information included on the listing;
  • allocating responsibility for recording/listing contracts on the agency's website; and
  • revising and widely disseminating relevant policies and Chief Executive's Instructions relating to procurement and contracts to reflect the Senate Order requirements and the Government's terms of compliance with the Order.

Back to top

6. `Contracts´ for the Purposes of the Policy

Whether or not an arrangement constitutes a contract for the purposes of the Government's policy will depend on an analysis of the intentions of the parties to the arrangement, the nature of the arrangement and whether the requisite formalities, if any, have been complied with.

For an arrangement to require reporting on the Internet listing it must:

  • be consistent with the Contract Criteria set out below, or be documented in a deed; and
  • satisfy the Date and Value criteria set out in `Value of "contracts" to be included´ and `Dates of contracts included on the listing´ in the Format and content of Internet listing section.

Following are criteria to be used to determine arrangements that should be reported under the policy along with discussion of the type of arrangements that are likely, or unlikely, to be 'contracts' for the purposes of the policy.5

If agencies are still unsure of the legal status of particular arrangements they should consider seeking their own legal advice.

Types of contracts

For the purposes of the policy (or the Order) the term 'contract' encompasses:

  1. agreements executed in the form of a deed; and
  2. simple contracts.

For an arrangement to be a simple contract, the Contract Criteria specified below must be met.

Contract criteria

For a simple contract to exist, all of the following elements must be present:

  • an offer;
  • acceptance of an offer;
  • consideration (unless the contract is executed as a deed); and
  • an intention to create legal relations.

In addition, there is a range of other matters that a court will consider if relevant, including:

  • capacity to contract;
  • no illegal purpose;
  • genuine consent between the parties eg no unconscionable conduct involved; and
  • certainty of terms.

It will also be necessary to look at whether any required formalities have been complied with eg a purchase of land is required to be in writing.

Together the elements listed in the three preceding paragraphs are referred to in this policy as the 'Contract Criteria'.

Probably 'contracts' for the purposes of the Senate Order

Arrangements under which goods and services have been procured

These arrangements would generally be contracts, subject to the arrangements meeting the Contract Criteria or the arrangement being documented in a deed. An arrangement to obtain consultancy services, which is generally a services contract, would be included under this heading. An arrangement that is a purchase of goods and/or services made under a standing offer would also be a contract. Standing offers are discussed in a later paragraph.

Dealings with interests in land

A contract will exist where an agency has purchased an interest in land, and this arrangement complies with the Contract Criteria and the requisite formalities eg in writing. This would also be the case with a lease arrangement.

Purchase order

Whether or not a purchase order constitutes a contract will depend on all the circumstances surrounding the use of that mechanism.

In practice, the term 'purchase order' describes a number of different things. Many agencies will have a purchase order form that is used to fill in the details of the goods and services to be ordered from a supplier. These forms often have some standard terms and conditions printed on the back of them. Filling out a purchase order form does not by itself create a contract.

Once the details are completed, a purchase order would need to be sent to the supplier, either physically or electronically, to commence the contract formation process. In some cases the goods ordered will simply arrive at the agency that ordered them. In other cases, the supplier may indicate its acceptance of the purchase order by replying to the order or by signing and returning the purchase order. The supplier may also try to re-negotiate the standard terms and conditions before supplying. A contract is not formed until the Contract Criteria have been met, or the arrangement is documented in a deed.

The term 'purchase order', or 'official order', is often also used to describe an order that is placed under a standing offer, often after a process to negotiate or confirm details of the particular purchase. The purchase order containing the agreed details then constitutes acceptance of the standing offer made by the supplier, and when it is received by the supplier, a contract is formed (unless there is some other process set out in the standing offer arrangement describing when the contract is to be formed).

Agreements between Australian Government bodies that are separate legal entities

An agreement between a body that is part of the Commonwealth of Australia, and an Australian Government body that is a separate legal entity to the Commonwealth of Australia, would be a contract if the agreement met the Contract Criteria, or was documented in a deed.

An example of such an arrangement may be whereby the Department of Defence enters into a contract with the Defence Housing Authority.

Funding agreements

The name 'funding agreements' is given to various arrangements. Sometimes these are contracts and sometimes these arrangements are not contracts eg it may be a gift or sometimes called a grant.

To be a contract, the funding agreement would need to meet the Contract Criteria.

In cases where the conditions of the funding agreement cannot be enforced under legislation and where an agency wishes to enforce a number of conditions, the funding is generally provided by way of contract, so that the obligations imposed on the person receiving the funding can be enforced at common law. Such a contract would normally include all the standard provisions of a contract, such as termination and applicable law provisions. These additional conditions might include repayment of grant moneys with interest or provision of reports and audited statements relating to expenditure of the grant money.

Arrangements that include both contractual elements and gift elements do exist, but working out where these arrangements fit in the legal landscape can be very complex, and will need careful legal analysis.

Public Service Act employment contracts

Some people who are employed by an agency are employed under a common law employment contract which contains the terms and conditions of employment. For Australian Public Services employees, such contracts are usually entered into pursuant to section 22 of the Public Service Act 1999 [External Site] (PSA Contract). A PSA Contract that meets the Contract Criteria would constitute a contract.

These contracts are different from an employment arrangement involving a Certified Agreement (CA) or an Australian Workplace Agreement (AWA). These employment arrangements have effect under the Workplace Relations Act 1996 [External Site].

Probably not 'contracts' for the purposes of the Order

Parties may enter into an arrangement that is not a contract either because they intend that it is not to be legally enforceable or because it is not legally enforceable for other reasons.

These arrangements may include:

Standing offer arrangement

Standing offer arrangements will not require reporting on the Order listing, unless $100 000 or more has been provided to the offeror to leave the offer open for a period of time.

Regardless of whether the standing offer is itself a contract, individual contracts valued at $100 000 or more, created through the acceptance of the standing offer should be reported as separate contracts on the listing.

More detailed discussion of the basis of this treatment of standing offers is provided below.

There are a number of different types of standing offer arrangements, some of which are contracts and some of which are not. Standing offers are so named because they represent an offer by one party to provide goods or services on certain terms and conditions when that offer is accepted by the other party. The offer therefore stands until accepted or it otherwise expires. Usually a contract is not formed until the offer is accepted by the other party, thus a standing offer arrangement by itself is often not a contract.

Generally with a standing offer, the party making the offer may withdraw it at any time prior to acceptance of the offer. For this reason, some parties expressly create a contract in relation to the standing offer in order to legally bind the party making the offer to leave the offer open for acceptance for, say, a set period of time. When these steps are taken, the standing offer becomes binding and a legally enforceable agreement ie a contract is created.

A standing offer is usually made legally enforceable by executing the standing offer as a deed. Another approach is to provide consideration (usually money) to the offeror in exchange for the promise to leave the offer open for a period. Regardless of whether the standing offer is itself a contract, separate contracts are created each time the standing offer is accepted, sometimes pursuant to an official order or sometimes a 'purchase order'.

Head agreement

Head agreements will not require reporting on the Senate Order listing, unless $100 000 or more has been provided to the offeror to leave the offer open for a period of time.

Regardless of whether the head agreement is itself a contract, individual contracts valued at $100 000 or more, created through the acceptance of the head agreement will be reported as separate contracts on the listing.

More detailed discussion of the basis of this treatment of head agreements is provided below.

In Australian Government transactions, this term can refer to an arrangement whereby an agency enters into a standing offer arrangement for the supply of products or services. The term is also used where a 'central' agency enters into an agreement with a supplier to facilitate a whole of government arrangement with the supplier of goods or services. In either scenario, the head agreement is often a legally binding agreement between the Commonwealth and the supplier (usually binding because it is executed as a deed – rather than because there is consideration), and sets out general terms and conditions. The head agreement usually allows orders under that agreement to be placed by an agency. The orders usually call up the terms and conditions set out in the head agreement, and once the arrangement between the agency and the supplier meets the Contract Criteria, or is documented in a deed, these separate arrangements are themselves separate contracts.

It may be however that the head agreement is not a contract, because it does not meet the Contract Criteria, or is not documented in a deed, in which case, the arrangement would not need to be included in the list.

Heads of agreement/letter of intent

This label is often used for a document that outlines the principles which will govern the negotiation of a proposed contract. In this case, the principles usually do not contain sufficient certainty for the principles themselves to be a contract. There cannot be genuine consent between the parties where there is a lack of certainty about the terms of a contract. However, the document could be made legally binding by being executed as a deed. Similar comments could be made about a 'Letter of Intent', which is another name that is sometimes given to these arrangements.

Purchase order

A purchase order that did not meet the Contract Criteria, or was not in the form of a deed, would not be a contract.

Agency agreement

An agreement between Australian Government agencies that are all part of the Commonwealth of Australia will not be legally enforceable because it is not possible for different parts of the same legal entity to enter into a legally enforceable agreement. Such an agreement is often called a Memorandum of Understanding (but this term is also used for other arrangements that are legally enforceable). These arrangements may also be 'agency agreements' under the Financial Management and Accountability Regulations 1997 [External Site].

Non-enforceable agreement between bodies that are separate legal entities

An agreement between an agency that is part of the Commonwealth and an Australian Government agency that is a separate legal entity to the Commonwealth, would not be legally enforceable if it did not meet the Contract Criteria or it was not documented in a deed. In that case, the arrangement would simply be a non-legally enforceable agreement.

It is also possible for the Commonwealth to enter into an agreement, which is designed to achieve political objectives, with an Australian State or a nation state. These are generally not legally enforceable, unless expressly stated to be so. Such an agreement is often called a Memorandum of Understanding. Where two Nation States are parties, the arrangement is likely to be enforceable under International Law rather than domestic contract law. These agreements do not have to be listed.

Gift/grant

A pure gift, sometimes called a grant, is not a contract.

A gift/grant includes a payment of money to a grantee either without conditions, or on conditions unilaterally imposed by the grantor. However, depending on the terms and conditions to which that payment is subject, the arrangement might be a gift (ie a gratuitous and discretionary payment) or a contract. Which category the payment belongs to will depend on whether conditions are attached and the nature of those conditions.

A gift /grant and a contract are mutually exclusive legal concepts which have different legal consequences. A gift/grant does not involve an agreement between the parties, either a legally enforceable agreement, or an agreement that is not legally enforceable.

A gift/grant is generally used for projects where funding is provided to a grantee under conditions imposed by legislation or in cases where the agency will only want to recover all or part of the grant moneys if the grantee does not comply with the conditions on which the grant is given, rather than seek damages from the grantee.

It is often quite difficult to be certain when a contract exists, and when some arrangement other than a contract exists. In order to strictly comply with the Senate Order, it would be necessary to do an analysis on all of the arrangements that an agency has entered into against the Contract Criteria, or to assess whether a deed exists, and also to assess whether the Senate Order Criteria are met, in order to decide which category the arrangement fits into.

Employment arrangements

The employment arrangements put in place by agencies are likely to be underpinned by an award eg the Australian Public Service Award 1998 but be governed by:

  • a CA; and/or
  • an AWA.

Where the employment arrangement is governed by a CA or an AWA, any contract of employment formed under section 22 of the Public Service Act 1999 is unlikely to deal with terms and conditions of employment.

CAs and AWAs are by far the most common kind of employment arrangements within the Australian Government. These employment arrangements are made under Parts VIB and VID of the Workplace Relations Act 1996, and are not purely contracts but arrangements made by means of statutory instruments having force under an Act rather than at common law. Although a contract of employment must exist before these instruments can operate, it is typically the CAs or AWAs that set out the terms and conditions of employment, including the amount of remuneration to be paid to employees. An employment arrangement governed by a CA or an AWA would not be a contract for the purposes of the Order.

Statutory appointments

Arrangements which constitute a statutory appointment generally take effect under the relevant statute and are generally not contracts.

Back to top

7. Identification and Treatment of Confidential Contract Information

As previously discussed in the Background chapter, the key driver behind the policy is to provide transparency of agencies' use of confidentiality provisions, in order to encourage the appropriate classification of contract-related information.

This transparency is achieved through the requirement that agencies identify any confidentiality provisions that are contained within the contracts listed.

Confidential Contract Information to be Identified

The following categories of confidentiality provisions should be identified for each of the contracts on the listing where applicable:

  1. those that make specific information contained in the contract confidential (referred to in the Order as 'provisions requiring the parties to maintain confidentiality of any of its provisions'); and
  2. those that protect the confidential information of the parties that may be obtained or generated in carrying out the contract but cannot be specifically identified when the contract is entered into (referred to in the Order as 'other requirements of confidentiality').

    Provisions that protect the confidential information of the parties that may be obtained or generated in carrying out the contract are generally in the form of standard confidentiality provisions of a general nature.
  3. The reasons for inserting such clauses in contracts include:
    • ordinary commercial prudence that requires protection of trade secrets, proprietary information and the like; and/or
    • protection of other Australian Government material and personal information.

When identifying confidentiality provisions in contracts, agencies are also required to explain why each of these provisions have been included in the contracts.

The 'Presentation of confidentiality-related information on the Internet listing' section discusses how this information may be displayed on the listing.

Reporting of Confidentiality Agreements that are Negotiated After the Signing of the Contract

Any specific agreements for confidentiality that are reached after the signing of the original contract should be negotiated in line with the process set out through the contract, if applicable, and Finance's Confidentiality throughout the Procurement Cycle and Additional Reporting on Confidentiality. Upon the signed acceptance of the parties, the agreement will become part of the contractual arrangement and will therefore need to be referenced through the Internet listing.

The following matrix gives a summary of the contractual provisions that need to be identified in each listing (the name given to these provisions through the Order is provided in italics) along with the major reasons that these provisions may have been inserted. The `Standard types of confidential information´ section that follows discusses these reasons, including the appropriateness of such an approach, in more detail.

The following matrix gives a summary of the contractual provisions that need to be identified in each listing (the name given to these provisions through the Order is provided in italics) along with the major reasons that these provisions may have been inserted. The `Standard types of confidential information´ section that follows discusses these reasons, including the appropriateness of such an approach, in more detail.

Contractual Provisions Matrix
Reason for confidentialityProvisions which make specific information in the contract confidential
(provisions requiring the parties to maintain confidentiality of any of its provisions)
Provisions which protect the confidential information of the parties that may be obtained or generated in carrying out the contract
(other requirements of confidentiality)
Trade secrets Yes Yes
Internal costing/profit information Yes No
Public interest Yes Yes
Statutory secrecy provision Yes Yes
Privacy Act 1998 Yes Yes
Other Yes Yes

As can be seen, the majority of the reasons can apply equally to the provisions that protect information inside and outside of the contract.

Handy Tips

Finance has released Guidance on Confidentiality of Contractors' Commercial Information which may be used by agencies in contract negotiations.

This guidance:

  • provides agencies with criteria based on legal principle to assist them to decide if it is appropriate to agree to treat specific commercial information as confidential;
  • provides an approach for agencies to use to resolve with tenderers/contractors whether commercial information will be treated as confidential; and
  • advises on the use of appropriate contractual terms for confidentiality purposes.

The criteria which form the foundation of this guidance are:

  • that the information to be protected must be identified in specific rather than global terms;
  • that the information must have the necessary quality of confidentiality;
  • that disclosure would cause detriment to the contractor or other third party; and
  • that the information was provided under an understanding that it would remain confidential.

The guidance material also provides a process chart for dealing with confidentiality of information in contracts. A copy of this chart is available at the Process for dealing with confidentiality of information in contracts section.

Statement of the Reasons for Confidentiality

Agencies' Internet listings should, for each contract, provide a statement of the reason(s) for the inclusion of confidentiality provisions.

The Standard types of confidential information section which follows provides a summary of the range of reasons for confidentiality. Agencies may wish to use these reasons in completing their listings.

For situations where a contract has more than one reason for confidentiality, each reason should be detailed on the listing.

In some cases where the existence of the contract is considered confidential, it may not be appropriate to include reference to the existence of the contract through the listing. In these circumstances, the reasons for confidentiality should be reflected through the Minister's letter of compliance.

Standard Types of Confidential Information

In identifying the reasons for confidentiality through the Internet listing, agencies are encouraged to adopt the following specific categories of confidential information (noting that when considering the confidentiality of contractors' commercial information, agencies should use the process contained in Confidentiality throughout the Procurement Cycle and Additional Reporting on Confidentiality, to determine whether the information can be appropriately classified as confidential).

These categories include:

  • Disclosure would reveal trade secrets which are judged to have the potential to cause detriment to the contractor;
  • Disclosure would reveal the contractor's internal costing information or information about its profit margin;
  • Disclosure would be contrary to the public interest;
  • Disclosure would be contrary to statutory secrecy provisions;
  • Disclosure would be contrary to the Privacy Act 1988 [External Site]; and
  • Other.

Following is further explanation of each of these categories:

Disclosure would reveal trade secrets, which are judged to have the potential to cause detriment to the contractor

In determining whether something is a trade secret, consideration needs to be given to whether the information in question consists of a process or device that has been developed for use by an entity for the purposes of its continuing business operations.

Intellectual property may be considered a sub-category of 'trade secrets', referring to the specific process, development or innovation that is the subject of the trade secret. Similarly, proprietary information of the contractor may be a trade secret when it includes information about how specific intellectual property is to be utilised to provide a particular technical or business solution.

Examples of trade secrets that may be contained or referred to in contracts, include industrial processes, formulae, product mixes, customer lists, engineering and design drawings and diagrams, and accounting techniques.6

Disclosure would reveal the contractor's internal costing information or information about its profit margin

Agencies should use the process contained in Finance's Confidentiality throughout the Procurement Cycle and Additional Reporting on Confidentiality to determine whether pricing information should be classified as confidential. In doing so, agencies should note that although a specific element may be assessed as not meeting the confidentiality criteria, the complete methodology may nevertheless warrant protection if it provides sufficient information to make a reasonable estimate of the prospective supplier's profit margin.

Disclosure would be contrary to the public interest

Agencies should use the Department of the Prime Minister and Cabinet guidelines on the scope of public interest immunity in Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters [External Site] as a guide to determine whether information regarding individual contracts should be protected as confidential.

Disclosure would be contrary to statutory secrecy provisions

A statutory secrecy provision is a provision set out through legislation, which requires that a certain category or categories of information be kept confidential.

Disclosure would be contrary to the Privacy Act 1988

The Privacy Act is designed to provide legislative protection of personal information. Agencies should have regard to the Information Privacy Principles in that Act when considering how to deal with personal information. The Privacy Act also allows personal information to be protected as confidential information.

However as stated earlier, it is anticipated that there would be minimal contracts completely excluded on the basis of Privacy Act concerns in the future, as, under the current accountability framework, contracts and tender documentation should include provisions alerting prospective providers to the public accountability requirements of the Australian Government. This will ensure that the individual provides the information in the knowledge that the contract details, which might include an individual's name or identity, will be listed on the Internet.

Other

Other reasons for confidentiality that are not covered by the previous categories may be included through this category. If agencies choose to utilise this category they should provide an explanation of the specific reason.

  • an Australian Government agency has given an undertaking to another party that the information will not be disclosed (such an undertaking may only relate to contracts entered into prior to the inception of the new accountability framework);
  • disclosure would reveal artistic, literary or cultural secrets eg a photo shoot, an historical manuscript or secret aboriginal culture; and
  • disclosure would have a substantial adverse effect on financial or property interests of the Commonwealth, as discussed through
    Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters. [External Site]

Post-Contract Treatment of Commercial Information

Any specific agreements for commercial confidentiality that are reached after the signing of the original contract should be negotiated in line with the process set out through the contract (if applicable) and Finance's Guidance on Confidentiality of Contractors' Commercial Information. Upon the signed acceptance of the parties, the agreement will become part of the contractual arrangement and will therefore need to be referenced through the Internet listing.

In addition, as discussed in the Confidentiality throughout the Procurement Cycle and Additional Reporting on Confidentiality, the sensitivity of some information may diminish over time. Accordingly, during the running of the contract, agencies should consider reviewing the classification of information that has previously been accepted as confidential, where this is practical taking into account factors such as the duration of the contract.

Presentation of Confidentiality-Related Information on the Internet Listing

Provided at the Template for Internet listing (two `Reasons for confidentiality´ columns) and the Template for Internet listing (one `Reason for confidentiality´ column) are two possible reporting templates that agencies have the discretion to use to meet their Internet listing requirements.

The difference between the templates is that they provide alternative approaches to the reporting of 'reasons for confidentiality'.

In particular:

  • The Template for Internet listing (two `Reasons for confidentiality´ columns) provides two separate columns to detail 'reasons for confidentiality' – one relating to provisions that make information contained in the contract confidential (if applicable) and the other covering provisions to protect information obtained or generated in carrying out the contract (if applicable). This approach provides greater clarity of confidentiality-related information than the second template as it aligns the reason for confidentiality with the broad category of confidential information to which it applies; and
  • The Template for Internet listing (one `Reason for confidentiality´ column) provides a single column to detail 'reasons for confidentiality', incorporating reasons relating to provisions that make information contained in the contract confidential (if applicable) and provisions to protect information obtained or generated in carrying out the contract (if applicable).

Both of the reporting templates include an overarching statement that agencies may wish to use to report the existence of, and reasons for, standard confidentiality provisions of a general nature. Agencies may need to redraft this statement to reflect their individual arrangements.

If agencies elect to use this overarching statement, it is anticipated that the 'other requirements of confidentiality' (and associated reasons for confidentiality) columns will be blank for most contracts. Agencies will only need to include entries in these columns when a contract contains provision(s) that make information obtained or generated in carrying out the contract confidential, but which are not covered by the overarching statement.

Regardless of the template that is used, it is important that reasons are provided for all confidentiality provisions that are contained in the listed contracts.

Handy Tips

Consistent with the Commonwealth Procurement Guidelines (CPGs), there are a number of actions that agencies should undertake to assist in ensuring the appropriate classification and disclosure of contract material, in particular agencies should:

  • include provisions in tender documentation and contracts that alert prospective providers to the public accountability requirements of the Australian Government, including disclosure to Parliament and its Committees; and
  • implement procedures which require a case-by-case consideration of requests for information in, or associated with, contracts to be treated as confidential.

In addition to these requirements, agencies should consider establishing training and staff awareness programmes covering the procurement governance and accountability framework for all relevant staff.

Back to top

8. The Minister´s Letter of Compliance

This chapter should be read in conjunction with the template for the letter of compliance. Use of this template is not mandatory, with portfolios having the option to tailor the letter to reflect their particular circumstances.

Agencies Covered by the Minister's Letter

The tabling letter should identify all FMA Act agencies which are administered by the Minister, including agencies that have not listed any contracts. It is anticipated that portfolio departments will coordinate the preparation and tabling of their Minister's letter.

Indication of Whether the Listing Does not Include Details of all Relevant Contracts

The letter should indicate the extent of, and reasons for, non-compliance, and when full compliance is expected. It should be noted that a list is deemed `non-compliant´ under the terms of the Order even, for example, when contracts, all of which are confidential, have been correctly excluded

In meeting this requirement, the Minister's tabling letter should provide the broad reason(s) that the list is non-compliant along with a statement of the extent of the non-compliance and when full compliance is expected. For instance, if an agency has excluded two contracts from its listing on the basis that listing would be against the public interest, the letter should include wording along the following lines:

The list for agency B is incomplete as two contracts have been excluded because listing would be against the public interest. Full compliance is expected to be achieved on [xx month year] the first Internet listing that the contracts would not qualify for inclusion, in terms of the dates of the contracts).

If the extent of non-compliance is not able to be accurately stated eg if technical difficulties mean that the entire list could not be updated by the tabling date, the statement should reflect this.

Handy Tips

In indicating the reasons for non-compliance, agencies may use the following explanations as appropriate:

  1. the list is not up to date

    This reason may be used when the list does not include all relevant contracts and/or associated information (eg amount of consideration) for the period that the letter relates to.
  2. not all relevant agencies are included, and

    This reason may be used when lists have not been completed for all relevant agencies administered by the Minister.
  3. contracts all of which are confidential are not included

    This reason may be used when complete contract(s) have not been included by virtue of the fact that the entire contract(s) have been excluded from disclosure (as discussed in the Categories of Exclusion section). The letter should also outline the reason that the entire contract has been excluded from disclosure.

Date for Tabling Letters of Compliance

Letters of compliance need to be tabled within two months of the end of the reporting period to which the listing(s) relate. For financial year listings, the letter must be tabled by 31 August, and in the case of calendar year listing, this will need to take place by 28 February (29 February in a leap year).

If the deadline for the tabling falls outside of parliamentary sittings, Ministers may table their letters out-of-session. Details on the processes to be followed for out-of-session tabling are provided in the Department of the Prime Minister and Cabinet's Guidelines for the Presentation of Government Documents, Ministerial Statements and Government Responses to Parliament (March 2001).

Back to top

9. Audit of Requirements Under the Policy

To monitor effective agency implementation, the policy provides for (and the ANAO has agreed to) ANAO audits of agency compliance with the requirements of the policy.

Coverage of the ANAO Audits

The audits cover a number of key aspects of the policy, in particular, the Auditor-General has agreed to:

  • examine a number of contracts identified as containing clauses that keep confidential the provisions of the contract and confidentiality clauses of a general nature and indicate whether any inappropriate use of such provisions was detected in that examination; and

    This is discussed in Identification and treatment of confidential contract information.
  • examine a number of contracts, selected by the Auditor-General, which have not been included in a list, and to indicate whether the contracts should be listed.

    Reasons that complete contracts may not be listed are discussed in Format and content of the Internet listing.

Previous Audits

The ANAO has completed a number of audits of agency compliance with the Order. The associated audit reports may be accessed at www.anao.gov.au [External Site]

Back to top

10. References

Back to top

11. Attachments

11.1 Scenarios to Assist Agencies in Determining the Date of Contracts that Should be Listed

Following are a number of contract scenarios to assist agencies in determining the date of contracts that should be listed:

Scenario 1 - Contract entered into on 1 January 2004 and fully performed as at 31 December 2004

This contract will be included in the 2003-2004 Financial year listing (reporting period 1 July 2003 – 30 June 2004), because it was entered into during the previous 12 months and also had not been fully performed as at the end of the reporting period (30 June 2004).

The contract will also be included in the 2004 Calendar year listing (reporting period 1 January 2004 – 31 December 2004) because it was entered into during the previous 12 months.

It will not be included in any subsequent listings.

Scenario 2 - Contract entered into on 1 January 2004 and fully performed as at 30 June 2004

This contract will be included in the 2003-2004 Financial year listing (reporting period 1 July 2003 – 30 June 2004), because it was entered into during the previous 12 months.

The contract will also be included in the 2004 Calendar year listing (reporting period 1 January 2004 – 31 December 2004) because it was entered into during the previous 12 months.

It will not be included in any subsequent listings.

Scenario 3 - Contract entered into on 1 January 2004 and fully performed as at 30 June 2005

This contract will be included in the 2003-2004 Financial year listing (reporting period 1 July 2003 – 30 June 2004), because it was entered into during the previous 12 months and also had not been fully performed as at the end of the reporting period (30 June 2004).

The contract will also be included in the 2004 Calendar year listing (reporting period 1 January 2004 – 31 December 2004) because it was entered into during the previous 12 months.

It will not be included in any subsequent listings.

Scenario 4 - Contract entered into on 1 January 2004 and fully performed as at 1 July 2005

This contract will be included in the 2003-2004 Financial year listing (reporting period 1 July 2003 – 30 June 2004), because it was entered into during the previous 12 months and also had not been fully performed as at the end of the reporting period (30 June 2004).

The contract will also be included in the 2004 Calendar year listing (reporting period 1 January 2004 – 31 December 2004) because it was entered into during the previous 12 months and had not been fully performed as that the end of the reporting period.

This contract will also be included in the 2004-2005 Financial year listing (reporting period 1 July 2004 – 30 June 2005), because it had not been fully performed as at the end of the reporting period (30 June 2005).

It will not be included in any subsequent listings.

11.2 Template for Internet Listing - Two `Reasons for Confidentiality´ Columns

[ Insert period covered by the listing eg FINANCIAL YEAR ]   [ Insert year eg 2004-2005  ]   SENATE ORDER ON DEPARTMENTAL AND AGENCY CONTRACTS LISTING RELATING TO THE PERIOD   [ Insert start date of period ][ Insert finish date of period ] Pursuant to the Senate Order on departmental and agency contracts the following table sets out contracts entered into by [ Enter department or agency name ] which provide for a consideration to the value of $100 000 or more and which:

  1. have not been fully performed as at [  Insert final date of the reporting period  ], or
  2. which have been entered into during the 12 months prior to [  Insert date of final day of the reporting period  ].

Most of the contracts listed contain confidentiality provisions of a general nature that are designed to protect the confidential information of the parties that may be obtained or generated in carrying out the contract.

The reasons for including such clauses include:

  • ordinary commercial prudence that requires protection of trade secrets, proprietary information and the like; and/or
  • protection of other Commonwealth material and personal information.

[ Agencies may need to redraft this statement to reflect their individual arrangements ]

Contract Details
ContractorSubject matterAmount of considerationStart dateAnticipated end dateWhether contract contains provisions requiring the parties to maintain confidentiality of any of its provisions (Y/N)Reason (s)Whether contract contains other requirements of confidentiality (Y/N)Reason (s)
                 

Estimated cost of complying with this Order:
Basis of method used to estimate the cost:

11.3 Template for Internet Listing - One `Reason for Confidentiality´ Column

[ Insert period covered by the listing eg FINANCIAL YEAR  ]  [ Insert year eg 2004-2005  ] SENATE ORDER ON DEPARTMENTAL AND AGENCY CONTRACTS LISTING RELATING TO THE PERIOD  [  Insert start date of period  ] [ Insert finish date of period] Pursuant to the Senate Order on departmental and agency contracts the following table sets out contracts entered into by [ Enter department or agency name ] which provide for a consideration to the value of $100 000 or more and which

  1. have not been fully performed as at [Insert final date of the reporting period], or
  2. which have been entered into during the 12 months prior to [  Insert date of final day of the reporting period  ].

Most of the contracts listed contain confidentiality provisions of a general nature that are designed to protect the confidential information of the parties that may be obtained or generated in carrying out the contract. The reasons for including such clauses include:

  • ordinary commercial prudence that requires protection of trade secrets, proprietary information and the like, and/or
  • protection of other Commonwealth material and personal information.

[Agencies may need to redraft this statement to reflect their individual arrangements.]

Contract Details
ContractorSubject matterAmount of considerationStart dateAnticipated end dateWhether contract contains provisions requiring the parties to maintain confidentiality of any of its provisions (Y/N)Whether contract contains other requirements of confidentiality (Y/N)Reason (s)
               

Estimated cost of complying with this Order:
Basis of method used to estimate the cost:

11.4 Template Letter for Tabling

Senator [ Insert name ]
President of the Senate
Parliament House
CANBERRA ACT 2600

 

Dear Senator [ Insert Name ]
 

Pursuant to the Senate Order on departmental and agency contracts, of
20 June 2001 (amended 4 December 2003), I wish to advise that all Financial Management and Accountability Act 1997 agencies within the X portfolio have placed a list of contracts to the value of $100 000 or more, which have not been fully performed or which have been entered into in the previous 12 months, on their Internet websites. The locations of the lists are as follows:

Agency 1 - http://www.agency1.gov.au;

Agency 2 - http://www.agency2.gov.au; and

Agency 3 - http://www.agency3.gov.au.

Agency 1 did not enter into any contracts that satisfy the criteria set out in paragraph 2(a) of the Order.  [ Delete if unnecessary ]

Agency 2's listing does not fully comply with requirements of paragraph (2) of the Order as X contracts, all of which are confidential, were not included.  [ Delete if unnecessary ]

The X portfolio's listing is not complete as Agency 3's listing was not completed due to technical issues. [ Delete if unnecessary ]

Agency 2's listing does not fully comply with requirements of paragraph (2) of the Order as the amount of consideration was not included for 10 contracts.  [ Delete if unnecessary ]

Full compliance is expected to be achieved from the [ Insert listing and year ]  [ Insert reason ].  [ Delete if unnecessary ]

The contact officer for the lists of contracts is Mr/Ms [ Insert name ], who may be contacted on [ Insert phone number ].
 

Yours sincerely

 

[ SIGNATURE BLOCK OF MINISTER OR DELEGATE ]

11.5 Process for Dealing with Confidentiality of Information in Contracts7

Process for Dealing with Confidentiality of Information in Contracts

1. The ANAO has completed a number of audits in relation to this issue:

  • Report No.33 - Senate Order of 20 June 2001 (February 2002) - February 2002;
  • Report No. 8 - The Senate Order for Department and Agency Contracts - September 2002;
  • Report No. 32 - The Senate Order for Departmental and Agency Contracts (Spring 2002 Compliance) - March 2003; and
  • Report No. 5 - The Senate Order for Departmental and Agency Contracts (Autumn 2003) - September 2003;

each of which build on the initial report and explore issues relating to both the requirements of the Senate Order and the issue of confidentiality as it relates to Australian Government contracts.

2. While the Order specifies date for compliance, it is important to note that Government policy is that agencies compliance with the requirements will be prospective and progressive.

3. Based on Australian Government Solicitor (AGS) advice – 'Contracts' for the purposes of the Senate Order on Government Agency Contracts, and related matters (August 2001), amended May 2003.

4. The inclusion of this information is prospective, relating to contracts entered into since
26 June 2003.

5. Based on AGS advice – 'Contracts' for the purposes of the Senate Order on Government Agency Contracts, and related matters (August 2001) amended May 2003.

6. As identified through ANAO Report No. 38 (2000-01) – The Use of Confidentiality Provisions in Commonwealth Contracts.

7. This chart is taken from Guidance on Confidentiality of Contractor´s Commercial Information (February 2003).

Copyright Notice

© Commonwealth of Australia 2004
This work is copyright. You may download, display, print and reproduce this material in unaltered form only (retaining this notice) for your personal, non-commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved. Requests and inquiries concerning reproduction and rights should be addressed to Commonwealth Copyright Administration, Attorney General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or posted at http://www.ag.gov.au/cca [External Site]


Contact for information on this page: Procurement Agency Advice


Back to top