Commonwealth Contract Terms clause C.C.21.K
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This clause sets out the mechanism for the National Anti-Corruption Commission (NACC) to investigate serious or systemic corrupt conduct in the Commonwealth public sector. The NACC will have broad jurisdiction to investigate Commonwealth ministers, parliamentarians and their staff, statutory officer holders, employees and contractors of all government entities, and any person whose conduct could adversely affect the honest or impartial exercise of a public official's functions. It will be up to the Commissioner of the NACC to decide whether, in their opinion, a matter could involve serious or systemic corrupt conduct.
There are four types of corrupt conduct under the National Anti-Corruption Commission Act 2022 (NACC Act). A person engages in corrupt conduct under the NACC Act if:
- they are a public official and they breach public trust
- they are a public official and they abuse their office as a public official
- they are a public official or former public official and they misuse information they have gained in their capacity as a public official, or
- they do something that could cause a public official to behave dishonestly or in a biased way when they carry out their official duties – any person can engage in this type of corrupt conduct, even if they are not a public official themselves.
A person also engages in corrupt conduct if they try or plan to do any of those things. A public official’s conduct may involve one or more types of corrupt conduct.
The NACC will have jurisdiction over contracted service providers if they are a party to a Commonwealth contract, or a relevant subcontract, and they are responsible for the provision of goods or services under that contract to or on behalf of the Commonwealth (see section 13 of the NACC Act). The contracted service provider and its officers or employees for the contract (and any subcontractors) will be public officials under the NACC Act.
The clause acknowledges that a Supplier providing goods or services to a Customer is recognised as a contracted service provider for the purposes of the NACC Act and outlines the obligations that a Supplier must comply with regarding actions taken by the Customer required or authorised by the NACC Act.
National Anti-Corruption Commission Act 2022 (Cth) Requirements
X.1 The Supplier acknowledges that in providing the Goods and/or Services to the Customer under the Contract, it is a contracted service provider for the purposes of the National Anti‑Corruption Commission Act 2022 (Cth) (NACC Act).
X.2 The Supplier must comply with any reasonable request, policy or direction issued by the Customer and otherwise cooperate with the Customer in relation to any action taken by the Customer required or authorised by the NACC Act.
While use of this clause is optional, the NACC have jurisdiction over contracted service providers whether or not there is a clause in the contract.
Standardisation of contractual text results in efficiencies for both Parties to a contract. Before deciding whether a particular clause is appropriate, procurement officials should carefully consider the context of their procurement.
Where this clause is included, the clause wording should be used without change.
Terms that are capitalised may need to be changed to align with the Contract terminology.