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ANAO Access to Contractors' Information

Revised May 2007

Purpose

The non-mandatory standard access clauses have been developed for inclusion within tender documentation and contracts to provide the ANAO, and Commonwealth agencies access to information held by contractors, including third party subcontractors for the purpose of audits.

Full Publication

Standard Contract Clauses to Provide ANAO Access to Contractors´ Information PDF version [PDF Document 34.1 KB]
Standard Contract Clauses to Provide ANAO Access to Contractors´ Information RTF version [RTF Document 4.11 MB]

Index

Introduction

As part of the Government's response to the Senate Finance and Public Administration Reference Committee Report, Contracting Out of Government Services [external site icon], May 1998, a commitment was made for standard access clauses to be developed.

The Department of Finance and Deregulation, and the Australian National Audit Office (ANAO) have jointly developed the attached standard access clauses. The clauses were last revised in May 2007.

Purpose

The non-mandatory standard access clauses have been developed for inclusion within tender documentation and contracts to provide the ANAO, and Commonwealth agencies access to information held by contractors, including third party subcontractors for the purpose of audits.

Application

Agencies are accountable for their agency's procurement performance. As part of their accountability responsibilities, agencies should consider, on a case-by-case basis, the inclusion of the attached standard access clauses, noting that the clauses may need to be tailored to reflect their individual circumstances. Agencies should also consider the cost implications on business when considering the use of these non-mandatory standard access clauses.

The inclusion of standard access clauses provides the ANAO and Commonwealth agencies access to various types of information held by contractors and third party subcontractors, including access to records, information and assets directly relevant to the contract performance. The clauses do not enable access to information that is outside the scope of the specific contract.

The standard access clauses are not mandatory and do not remove the accountability and transparency requirements of departments and agencies when undertaking tender processes and managing contracts.

These standard access clauses should be used in conjunction with other contractual clauses, including performance management. The clauses do not override agencies' responsibilities to continue to manage a contract in accordance with all contract provisions.

Information Management and Access

1. Books and records

1.1  Contractor to keep books and records

The Contractor must:

1.2  Costs

The Contractor must bear its own costs of complying with this clause.

1.3  Survival

This clause applies for the Contract Period and for a period of seven years from the termination or expiry of this Contract.

2.  Audit and access

2.1  Right to conduct audits

The Customer or a representative may conduct audits relevant to the performance of the Contractor's obligations under this Contract. Audits may be conducted of:

2.2  Access by the Customer

The Customer may, at reasonable times and on giving reasonable notice to the Contractor:

The Customer must provide access to the Contractor's computer hardware and software to the extent necessary for the customer to exercise its rights under this clause, and provide the customer with any reasonable assistance requested by the Customer to use that hardware and software.

2.3  Conduct of audit and access

The Customer must use reasonable endeavours to ensure that:

do not unreasonably delay or disrupt in any material respect the Contractor's performance of its obligations under the Contract.

2.4  Costs

2.5  Auditor-General and Privacy Commissioner

The rights of the Customer under clause 2.2(a) to 2.2(c) apply equally to the Auditor-General or a delegate of the Auditor-General, or the Privacy Commissioner or a delegate of the Privacy Commissioner, for the purpose of performing the Auditor-General's or Privacy Commissioner's statutory functions or powers.

2.6  Contractor to comply with Auditor-General's requirements

The Contractor must do all things necessary to comply with the Auditor-General's or his or her delegate's or the Privacy Commissioner's or his or her delegate's requirements, notified under clause 2.3, provided such requirements are legally enforceable and within the power of the Auditor-General, the Privacy Commissioner, or his or her respective delegate.

2.7  No reduction in responsibility

The requirement for, and participation in, audits does not in any way reduce the Contractor's responsibility to perform its obligations in accordance with the Contract.

2.8  Subcontractor requirements

The Contractor must ensure that any subcontract entered into for the purpose of this Contract contains an equivalent clause granting the rights specified in this clause.

2.9  No restriction

Nothing in this Contract reduces, limits or restricts in any way any function, power, right or entitlement of the Auditor-General or a delegate of the Auditor-General or the Privacy Commissioner or a delegate of the Privacy Commissioner.  The rights of the Customer under this Contract are in addition to any other power, right or entitlement of the Auditor-General or a delegate of the Auditor-General or the Privacy Commissioner or a delegate of the Privacy Commissioner.

2.10  Survival

This clause applies for the Contract Period and for a period of seven years from the termination or expiry of this Contract.

Tender Clause

1.   Australian National Audit Office

1.1   The attention of Tenderers is drawn to the Auditor-General Act 1999 (Cth), which provides the Auditor-General or an authorised person with a right to have, at all reasonable times, access to information, documents and records.

1.2   In addition to the Auditor-General's powers under the Auditor-General Act 1997 (Cth), if the Tenderer is chosen to enter into a contract, the Tenderer will be required to provide the Auditor-General or an authorised person, access to information, documents, records and [Agency] assets, including those on the Tenderer's premises. This will be required at reasonable times on giving reasonable notice for the purpose of carrying out the Auditor-General's functions and will be restricted to information and assets which are in the custody or control of the Tenderer, its employees, agents or subcontractors, and which are related to the Contract.  Such access will apply for the term of the Contract and for a period of 7 years from the date of expiration or termination.

Tenderers should obtain, and will be deemed to have obtained, their own advice on the impact of the Auditor-General Act 1997 (Cth) on their participation in the Tender.

Copyright Notice

© Commonwealth of Australia 2007
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].


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Last Modified: 15 August, 2008