Transparency in Commonwealth Government Procurement

Principles

1. The Australian Government is committed to ensuring accountability and transparency in its procurement activities.  This is achieved through appropriate reporting of procurement activity, and the use of confidentiality provisions in contracts only where justified.

2. Requirements for reporting of Australian Government Procurement currently derive from:

  • The Commonwealth Procurement Rules (CPRs) which requires the use of AusTender by all non-corporate Commonwealth entities for reporting all Commonwealth contracts and entity agreements (including standing offer arrangements and amendments to these arrangements) of $10,000 and above.
  • The Senate Order for Departmental and  Entity Contracts (the Senate Order), requires relevant entities make available through their internet site, a list of all contracts to the value of $100,000 or more entered into or not fully performed during the previous twelve months.  The Senate Order specifies that the list indicates for each contract whether any confidentiality provisions have been agreed, and if so, the reasons for the confidentiality arrangements.
  • The requirements for Entity Annual Reports, include a statement detailing:
    • the number of new consultancy services contracts let during the year;
    • the total actual expenditure of all new consultancy contracts let during the year;
    • the number of ongoing consultancy contracts that were active in the reporting year; and
    • the total actual expenditure in the reporting year on the ongoing consultancy contracts.

Practice

1. The CPRs requires non-corporate Commonwealth entities prescribed corporate Commonwealth entities entities to publish on AusTender:

  • an Annual Procurement Plan containing information about planned procurement;
  • details of all open approaches to the market.; and
  • details of Commonwealth contracts and relevant entity agreements, including standing offer arrangements and amendments.

 2. For prescribed corporate Commonwealth entities, publishing and reporting requirements only apply to procurements that are above the procurement threshold.

 3. Entities subject to the PGPA Act are also required to identify on AusTender:

  • whether contracts are for the procurement of consultancy services; and
  • whether a contract includes confidentiality provisions. Entities must separately identify whether the requirements are to maintain the confidentiality of:
    • contract clauses or other information contained in the contract (described in AusTender as Confidentiality (Contract)); and
    • information obtained or generated as a result of performance of the contract (described in AusTender as Confidentiality (Outputs)).

 4. Australian Government contract information should not be confidential unless there is a sound reason, informed by legal principle, for maintaining the confidentiality of the information. 

 5. If during the course of a procurement information is determined to be confidential, the entity must ensure that:

  • the information is properly managed;
  • the resulting contract includes appropriate confidentiality provisions; and
  • confidentiality provisions are reported correctly on AusTender.

6. Further guidance on confidentiality requirements relates to:

TIPS

1. In assessing the need for confidentiality in procurement and in contracts, entities should balance the need to keep information transparent to meet reporting and disclosure requirements, with the need to protect the confidentiality of information that might genuinely damage the Australian Government’s interests or the commercial interests of suppliers.

2. Entities’ assessments of whether information is confidential should be made on a case-by-case basis. The decision about whether information is to be protected as confidential must be made for each procurement and not be influenced by decisions on confidentiality in other procurements.

3. Genuine reasons for confidentiality include the protection of the public interest, intellectual property and other commercial confidentiality.

TRAPS

1. As a party to a contract, the Australian Government cannot provide an absolute guarantee of confidentiality. The Australian Government is subject to a number of obligations whereby it is required to disclose information, regardless of any contractual obligations to maintain confidentiality. Disclosure obligations include:

  • an entity may be required to disclose information to Parliament, its committees or the Auditor-General to comply with its accountability obligations; 
  • under the Freedom of Information Act 1982 (FOI Act) and Freedom of Information Amendment (Reform) Act 2010, a person can request access to information held by an entity – unless the information is subject to one of the exemptions set out in the FOI Act, the entity will be obliged to disclose it. Therefore, officials engaged in procurement need to be mindful that documents created or possessed may be disclosed under the FOI Act; and
  • the Australian Government will be required to disclose discoverable information which is relevant to a case before a court.

Did you find this content useful?