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Optional (see notes section below) |
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This clause should be included in approach to market terms (where the CCS is not being used) to ensure that respondents to the approach to market are aware of how material contained in their response will be treated in terms of confidentiality.
Paragraph 7.23 of the Commonwealth Procurement Rules (CPRs) provides that submissions must be treated as confidential before and after the award of a contract. The CPRs also provide that officials should plan for, and facilitate, appropriate disclosure of procurement information and include provision in request documentation that alert potential suppliers to the public accountability requirements of the Australian Government (paragraph 7.25). This clause supports compliance with these provisions of the CPRs.
Once a contract has been awarded the terms of the contract, including parts of the contract drawn from a tenderer’s submission, are not confidential unless the Customer has determined and identified in the contract that specific information is to be kept confidential in accordance with the Department of Finance’s principles relating to Confidentiality throughout the Procurement Cycle. Refer to Disclosure information for the contract clause and guidance.
Respondent’s confidential information
X.1. Subject to X.2 and X.3, the Customer will treat as confidential all Responses submitted by Potential Suppliers in connection with this ATM.
X.2. The Customer will not be taken to have breached any obligation to keep information provided by Potential Suppliers confidential to the extent that the information:
- is disclosed by the Customer to its advisers, officers, employees or subcontractors solely in order to conduct the ATM process or to prepare and manage any resultant contract;
- is disclosed to the Customer’s internal management personnel, solely to enable effective management or auditing of the ATM process;
- is disclosed by the Customer to the responsible Minister;
- is disclosed by the Customer in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;
- is shared by the Customer within the Customer’s organisation, or with another Commonwealth agency, where this serves the Commonwealth’s legitimate interests such as for policy development, research, compliance, regulatory and other non-commercial purposes;
- is authorised or required by law to be disclosed; or
- is in the public domain otherwise than due to a breach of the relevant obligations of confidentiality.
X.3. The Customer will only keep information contained in, or obtained or generated in performing, any contract entered into with the successful Potential Supplier, including any information sourced from the successful Potential Supplier’s Response, confidential in accordance with the terms of the contract. Potential Suppliers should include in their Response any request for such information to be treated as confidential following the award of contract to it. Further information on the Commonwealth's confidentiality policy is available at Confidentiality throughout the Procurement Cycle.
Clause wording may need to be changed to align with related clauses in the Approach to Market or otherwise the clause wording should be used without change. The matters in the clause should also be considered in the context of other provisions in the Approach to Market. For example, procurement officials should consider whether the Approach to Market sufficiently contains provisions relating to the Privacy Act 1988 which would mean that, to the extent that disclosures permitted under this clause involve personal information, the disclosure would not involve a breach of that Act.
Capitalised terms (unless otherwise defined) are based on the definitions in the CCS Glossary. Terms that are capitalised may need to be changed to align with the terminology of the relevant RFT or other Approach to Market.
