- Appendix A: Exemptions from Division 2
- Appendix B: Abbreviations and Acronyms
- Appendix C: Definitions
Division 2 does not apply to:
- leasing or procurement of real property or accommodation (note: the procurement of construction services is not exempt);
- procurement of goods and services by an agency from other Commonwealth, state, territory or local government entities where no commercial market exists or where legislation or Commonwealth policy requires the use of a government provider (for example, tied legal services);
- procurements funded by international grants, loans or other assistance, where the provision of such assistance is subject to conditions inconsistent with this document;
- procurements funded by grants and sponsorship payments from non-Commonwealth entities;
- procurement for the direct purpose of providing foreign assistance;
- procurement of research and development services, but not the procurement of inputs to research and development undertaken by an agency;
- the engagement of an expert or neutral person, including engaging counsel or barristers, for any current or anticipated litigation or dispute;
- procurement of goods and services (including construction) outside Australian territory, for consumption outside Australian territory;
- acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, and sale and distribution services for government debt;
- procurement of motor vehicles;
- procurement by the Future Fund Management Agency of investment management, investment advisory, or master custody and safekeeping services for the purposes of managing and investing the assets of the Future Fund;
- procurement of blood plasma products or plasma fractionation services;
- procurement of government advertising services10;
- procurement of goods and services by, or on behalf of, the Defence Intelligence Organisation, the Defence Signals Directorate, or the Defence Imagery and Geospatial Organisation;
- contracts for labour hire;
- procurement of goods and services from a business that primarily exists to provide the services of persons with a disability; and
- procurement of goods and services from an SME with at least 50 per cent Indigenous ownership.11
10. This includes information and advertising services for the development and implementation of information and advertising campaigns.
11. FMA Regulation 7b – Commonwealth Cleaning Services Guidelines (Act s64) must be complied within the use of this exemption for the procurement of cleaning services.
|CAC Act||Commonwealth Authorities and Companies Act 1997|
|CEIs||Chief Executive’s Instructions|
|CPRs||Commonwealth Procurement Rules|
|Finance||Department of Finance and Deregulation|
|Finance Minister||Minister for Finance and Deregulation|
|FMA Act||Financial Management and Accountability Act 1997|
|FMA Regulations||Financial Management and Accountability Regulations 1997|
|GST||Goods and Services Tax|
|SMEs||Small and Medium Enterprises|
The following definitions apply for the purposes of these CPRs:
Annual procurement plan – a document published on AusTender through which agencies provide a short summary of their strategic procurement outlook for the coming year and information on significant procurements they plan to undertake.
Approach to market – any notice inviting potential suppliers to participate in a procurement which may include a request for tender, request for quote, request for expression of interest, request for application for inclusion on a multi-use list, request for information or request for proposal.
Note: the acronym ‘ATM’ is used on AusTender and other procurement documents to reference an approach to market.
- a Minister; or
- a Chief Executive; or
- a person authorised by or under an Act to exercise a function of approving proposals to spend public money.
CAC Act bodies – an entity that is subject to the Commonwealth Authorities and Companies Act 1997 (CAC Act). CAC Act bodies are legally and financially separate from the Commonwealth but can be directed by the Finance Minister under section 47A of the CAC Act to apply the CPRs in accordance with the CAC Act Procurement Directions if they are listed in schedule 1 to the CAC Regulations (relevant CAC Act bodies).
Commercial goods and services – commercial goods and services are of a type that are offered for sale to, and routinely purchased by, non-government buyers for non-government purposes, including any modifications common in the commercial marketplace and any minor modifications not common in the commercial marketplace.
Conditions for participation – minimum conditions that potential suppliers must demonstrate compliance with, in order to participate in a procurement process or for submissions to be considered. This may include a requirement to undertake an accreditation or validation procedure.
Contract – an arrangement, as defined by the FMA Regulations, for the procurement of goods and services under which public money is payable or may become payable.
Note: this includes standing offers and panels.
Contracts for labour hire – a contract under which an agency engages an individual to provide labour, where the individual is engaged either directly or through a firm which primarily exists to provide the services of only that individual. This includes the appointment of an eminent individual to a special role by a Chief Executive, or the appointment of a person or persons by a Chief Executive to a governance committee (for example, an audit committee, ethics committee or steering committee), but does not include the engagement of consultants.
Goods – every type of right, interest or thing which is legally capable of being owned. This includes, but is not restricted to, physical goods and real property as well as intangibles such as intellectual property, contract options and goodwill.
Minimum content and format requirements – criteria that a tenderer’s submission is required to meet, when responding to an approach to market, to be eligible for further consideration in a procurement process.
Multi-use list – a list, intended for use in more than one procurement process, of pre-registered suppliers who have satisfied the conditions for participation on the list. Each approach to a multi-use list is considered a new procurement.
Open approach to market – any notice inviting all potential suppliers to participate in a procurement which may include a request for tender, request for quote, request for expression of interest, request for application for inclusion on a multi-use list, request for information and request for proposal.
- a shortlist of potential suppliers that responded to an initial open approach to market on AusTender;
- a list of potential suppliers selected from a multi-use list established through an open approach to market; or
- a list of all potential suppliers that have been granted a specific licence or comply with a legal requirement, where the licence or compliance with the legal requirement is essential to the conduct of the procurement.
Procurement – encompasses the whole process of procuring goods and services. It begins when a need has been identified and a decision has been made on the procurement requirement. Procurement continues through the processes of risk assessment, seeking and evaluating alternative solutions, the awarding of a contract, delivery of and payment for the goods and services and, where relevant, ongoing contract management and consideration of disposal of goods. Procurement does not include:
- grants (whether in the form of a contract, conditional gift or deed)12;
- investment (or divestment);
- sales by tender;
- procurements of goods and services for resale or of goods and services used in the production of goods for resale;
- any property right not acquired through the expenditure of public money – for example, a right to pursue a legal claim for negligence;
- statutory appointments;
- appointments made by a Minister using the executive power – for example, the appointment of a person to an advisory board; or
- the engagement of employees – such as under the Public Service Act 1999, the Parliamentary Services Act 1999, an agency’s enabling legislation, or the common law concept of employment.
- for FMA Act agencies, other than for procurements of construction services, the procurement threshold is $80,000;
- for relevant CAC Act bodies, other than for procurements of construction services, the procurement threshold is $400,000; or
- for procurements of construction services by FMA Act agencies or relevant CAC Act bodies, the procurement threshold is $9 million.
- $10,000 for FMA Act agencies; and
- for relevant CAC Act bodies
- $400,000 for procurements other than procurement of construction services, or
- $9 million for procurements of construction services.
Request documentation – documentation provided to potential suppliers to enable them to understand and assess the requirements of the procuring agency and to prepare appropriate and responsive submissions. This general term includes documentation for expressions of interest, multi-use lists, open tender, prequalified tender and limited tender.
Research and development – research is described as systematic enquiry or investigation into a subject in order to discover facts or principles. Research includes surveys, market research, scientific research and educational research. Development applies to the function of creating/producing new and improved products, devices, processes or services. Development also extends to design, proof of concept and the production of prototypes.
Standing offer – an arrangement setting out the terms and conditions, including a basis for pricing, under which a supplier agrees to supply specified goods and services to an agency for a specified period.
Submission – any formally submitted response from a potential supplier to an approach to market. Submissions may include tenders, responses to expressions of interest, applications for inclusion on a multi-use list or responses to request for quote.
12. As defined in FMA Regulation 3A