Intent statement

1
FMA Act and CPG requirements of procurements
under 80,000 current state
Project Analysis and Review of Commonwealth Procurement Processes for procurements under 80,000 Client Department of Finance Deregulation
Date Version 27 June 2011 FINAL V1.0 ThinkPlace Team Raffaella Recupero, Linda Dewey, Mark Thompson, Behzad Emami
2
About this document
For the first part of the Review and Analysis of
Commonwealth Procurement Processes project,
ThinkPlace has reviewed and analysed the
requirements set by the Financial Management
Accountability Act 1997 and Regulations and the
Commonwealth Procurement Guidelines (CPG) for
non-covered procurements. ThinkPlace will work
with a small group of people in Finance to
develop an agreed overarching business process
model which, based on requirements, represents
the Commonwealth procurement process for
procurements under the 80,000 threshold.
Contents
Intent Intent Statement 4 Project approach,
activities and timeframes 5 Procurement
framework Procurement framework high level
view 7 Procurement framework detailed
view 8 Configuration of the procurement
system Process fundamentals 11 Conceptual
business process 12 Rules and standards for
procurement 13 Regulated (or sound practice)
approaches or events 14 Configuration of the
procurement system 15 Appendix 17
3
Intent statement A shared understanding of the
objectives, outcome, scope and approach for the
project Cooperatively developed with agencies
which participated in the Review on 13 April 2011
4
A standardised, simple and safe process for all
FMA agencies conducting procurements that fall
under the 80,000 threshold
Intent
CURRENT STATE
FUTURE STATE
SYSTEM IN FOCUS
The FMA Act and Regulations set the framework for
the proper management of public money and public
property in the custody and control of the
Commonwealth. The Commonwealth Procurement
Guidelines (CPGs) articulate the Governments
expectations for all department and agencies
conducting procurement.
Agencies have evolved their procurement policies
and practices within the context of the agencys
organisational structure, delegations, approval
processes etc. Agency specific policies and
procedures are contained with large and complex
volumes of CEIs, departmental policy documents
and protocols.
Under the FMA Act, 104 FMA agency CEOs have
devolved authority to manage public money within
their agency.
APPROACH FOR BRIDGING THE GAP

• Where are we now?
• Analysis of 2008-09 AUSTENDER statistics
  indicate 85,000 contracts (over 10,000) were
  awarded. The total value of these contracts
  approx. 35bn.
• Of those contracts, about 65,000 contracts
  falling under the 80,000 threshold were awarded.
  The total value of these contracts was about
  12.6bn.
• Over 80 of the total number of contracts
  correspond to about 4 total value. An APS 5/6
  can spend up to 80 their time on low value
  contracts
• Low value contracts translate to a high
  administrative burden
• Agencies have tailored procurement approaches
  reflect organisational structure, authority and
  delegations, approval processes, risk appetite,
  level of IT maturity, and resourcing, reporting
  processes and systems
• Procurement functions differ in agencies some
  functions are centralised, some are decentralised
• Participating agencies have undertaken work to
  review CEIs, processes and protocols
• Whole of Government CEIs are under development
• Work has also been undertaken to simplify the
  standard short form contract, reducing the number
  of pages from 80 to 6

How do we get there? Analyse and review
Commonwealth procurement practices currently
employed by selected agencies when conducting
procurements under 80,000, identifying issues,
pressure points and opportunities for
improvement, and on that basis making
recommendations for simplifying and streamlining
processes. What do we need to do?

• What would success look like?
• A better practice model for procurements under
  the threshold that
• Standardises the process across FMA agencies
• Makes it easier for staff to know what to do and
  how to conduct procurements
• Reduces administrative burden
• Finance will be able to use the project findings
  and recommendations as a basis for presenting a
  better practice model to FMA agencies, where
  appropriate.
• The project will influence agency CEIs and
  processes

• Who do we need to involve?
• Finances Procurement Policy Branch
• Procurement Policy Areas and representatives from
  line areas

DRIVERS FOR CHANGE

• Out of scope
• The project will not to assess how well agencies
  implement the CPGs and relevant FMA legislation
  when undertaking procurements
• The project will not redesign policy

• What do we need to consider?
• Avoid over-engineering or over prescribing
• Aim to set a benchmark
• Impact on behavioural change

• What is the problem/ opportunity?
• Agency procurement processes are complex,
  confusing, and onerous for staff
• Requirements vary from agency to agency
  processes are not standardised across government
• Suppliers are frustrated

Timing
Focussing question How can we standardise and
streamline the process for procurements under
the 80,000 threshold, making it less onerous FMA
Act agencies, while also maintaining the
integrity of the FMA Act?
5
AGENCY CASE STUDIES
AGENCY SNAPSHOT
KEY ACTIVITIES AND TIMEFRAMES
Project approach, activities and timeframes

• Choosing your three case studies
• A typical procurement
• An example of good practice
• An example of a convoluted/ inefficient process

• Presenting your case studies
• Describe
• What was procured
• How the market was approached (e.g. direct,
  select)
• Contract value
• Time taken for procurement process, end to end
• Roles involved in the processes (line area,
  procurement area, delegate,..)
• Delegate approval process
• Reporting process
• Documentation developed
• Questions referred to the procurement area (if
  any)

• 1. Agency A
• Procurement operates on a decentralised basis,
  where Line Areas handle procurements under
  80,000
• The Corporate Procurement Branch is resourced by
  70 FTE
• Well document procurement policies and procedures
• Undertaken some mapping work already and
  identified opportunities for streamlining
  processes
• 2. Agency B
• Governance, Contracts and Services area is
  resourced by 2 FTE
• Reviewed CEIs last year
• Issues identified and some new approaches
  established
• 3. Agency C
• Procurement operates on a decentralised basis,
  where Line Areas handle procurements under
  80,000.
• For procurements above the threshold, the
  internal Procurement Advice area vets the
  documentation and provides advice on the process.
• The Procurement Policy Branch provides policy
  advice and guidance to agency central procurement
  areas.
• The Procurement Implementation Branch also
  provides helpdesk support to other agencies in
  relation to AusTender.

Phase Key activity / task Date (tentative) ThinkPlace contacts
0 Establish project / formulate intent Finalised by 13 April 2011 Raffaella Recupero/ Linda Dewey
1 Research and model overarching procurement process Finalised by 29 April Raffaella Recupero/ Mark Thompson
2.1 Agency A business process mapping Workshop 2 May Finalised by 17 May (inc. validation/acceptance) Linda Dewey/ Mark Thompson
2.2 Agency C business process mapping Workshop 4 May Finalised by 17 May (inc. validation/acceptance Raffaella Recupero/ Behzad Emami
2.3 Agency B business process mapping Workshop 18 May Finalised by 31 May (inc. validation/acceptance Raffaella Recupero/ Mark Thompson
3.1 Agency A interviews/ design workshop Three case studies prepared by 13 May Activity 19 May Finalised by 31 May (inc. validation/acceptance Linda Dewey/ Behzad Emami
3.2 Agency C interviews/ design workshop Three case studies prepared by 27May Activity 1 June Finalised by 14 June (inc. validation/acceptance Raffaella Recupero/ Mark Thompson
3.3 Agency B interviews/ design workshop Three case studies prepared by 27May Activity 1 June Finalised by 14 June (inc. validation/acceptance Linda Dewey/ Behzad Emami
4.0 Good practice model design Finalised by 29 June All
6
Procurement framework Government requirements
for procurement based on FMA Act 1997,
Regulations and CPGs
7
Procurement framework high level view (for FMA
agencies)

• The Governments procurement policy framework
  comprises several legislative and policy elements
  including the Financial Management
  Accountability Act and Regulations 1997, and the
  Commonwealth Procurement Guidelines (CPGs), as
  well as other legislation which interacts with
  procurement.
• The CPGs are legislative instruments with which
  agencies must comply.

CONSTITUTION
LEGISLATION
LEGISLATIVE INSTRUMENTS
Constitution Act s81-3 All revenue or money
raised or received by the Executive Government
forms one Consolidated Revenue Fund from which
money is appropriated, under provisions of an
existing or proposed law
Financial Management Accountability (FMA) Act
1997 Provides for the proper use and management
of public money, public property and other
Commonwealth resources
Financial Management Accountability Regulations
1997 Regulations
Free Trade Agreements
Commonwealth Procurement Guidelines Establish the
core procurement policy framework and articulate
Governments expectations for all department and
agencies issued by Finance Minister
POLICY GUIDANCE MATERIAL
Finance Circulars Advise Agencies of key changes
and developments in the Governments procurement
framework
Guidance Documents A range of web-based and
printed documents which assist Agencies to
implement the Governments procurement policy
AGENCY CONFORMANCE
Policy and Procedural Documents Detailed
instructions on procurement practices
Chief Executive Instructions Operational guidance
to agency official on financial management /
procurement

• Note
• FMA Determinations and Orders have not been
  included in this procurement framework because
  none at this stage are relevant to procurement
• The Good Procurement Practice has not been
  included in this procurement framework

8
Procurement framework detailed view (for FMA
agencies)

• The operative provisions of the Act and
  Regulation that are relevant for procurement are
  detailed below.
• The outcome that Parliament expects is that Chief
  Executives promote propose use of Commonwealth
  Resources, which is defined as efficient,
  effective, economical and ethical use that is not
  inconsistent with the policies of the
  Commonwealth.

Financial Management Accountability (FMA) Act 1997
Financial Management Accountability Regulations
1997 Regulations
Part 7 Special responsibilities of Chief
Executives
Part 3 Powers of Chief Executives
Part 4 Commitments to spend public money

• Section 44
• Promoting proper use of Commonwealth resources
• A Chief Executive must manage the affairs of the
  Agency in a way that promotes proper use of the
  Commonwealth resources for which the Chief
  Executive is responsible.
• The Chief Executive must comply with this Act,
  the regulations, Finance Ministers Orders,
  Special Instructions and any other law.
• Proper use means efficient, effective,
  economical and ethical use that is not
  inconsistent with the policies of the Commonwealth

• Regulation 6
• Chief Executive Instructions
• The Chief Executive of an Agency is authorised to
  give instructions (to be called Chief Executives
  Instructions) to officials in that Agency on any
  matter necessary or convenient for carrying out
  or giving effect to the FMA Act or Regulations

• Regulation 7
• Commonwealth Procurement Guidelines
• The Finance Minister may issue guidelines (to be
  called Commonwealth Procurement Guidelines) about
  procurement policies and processes requirements
  regarding the publication of procurement details
  requirements regarding entering into procurement
  arrangements and the disposal of public
  property.
• Officials performing procurement duties must act
  in accordance with the CPGs.

• Regulation 9
• Approval of spending proposals
• An approver must not approve a spending proposal
  unless the approver is satisfied, after making
  reasonable inquiries, that giving effect to the
  spending proposal would be a proper use of
  Commonwealth resources (within the meaning given
  by subsection 44 (3) of the Act).

• Regulation 10
• Arrangements beyond available appropriation
• If the agency has insufficient appropriation of
  money, a person must not enter into an
  arrangement unless first approved by the Finance
  Minister.

• Regulation 8
• Entering into an arrangement
• A person must not enter into an arrangement
  unless
• (a) a spending proposal has been approved under
  regulation 9 and
• (b) if required, written agreement has been given
  under regulation 10

• Regulation 12
• Recording approval of spending proposals
• The approval of spending proposals must be made
  in writing

9
Procurement framework detailed view (for FMA
agencies)

• The legislative instruments and Guidance Material
  that are relevant for procurement are detailed
  below

Commonwealth Procurement Guidelines Establish the
core procurement policy framework and articulate
Governments expectations for all department and
agencies
Division 1 Procurement Principles Applies to all
procurement
Division 2 Mandatory Procurement Principles
(covered)
However some provisions will apply to non-covered
procurements e.g. market approaches
Guidance Documents A range of web-based and
printed documents which assist Agencies to
implement the Governments procurement policy
Finance Circulars To advise Agencies of key
changes and developments in the Governments
procurement framework
2003/02 Guidelines for Issuing and Managing
Indemnities, Guarantees, Warranties and Letters
of Comfort
2008/10 Procurement 30 Day Payment Policy for
Small Business
No. 14 Guidance on Ethics and Probity in
Government Procurement January 2005    
No. 3 Guidance on Confidentiality in
Procurement July 2007    
2006/03 Limited Liability in Information and
Communications Technology Contracts
2005/12 Definition of Procurement of
Construction Services
No.6 Guidelines for Issuing and Managing
Indemnities, Guarantees, Warranties and Letters
of Comfort September 2003  
No. 15 Guidance on Procurement Publishing
Obligations July 2007    
2009/11 Best Fare of the Day for International
Official Air Travel
2009/10 Use of the Lowest Practical Fare for
Official Domestic Air Travel
No. 10 Guidance on Complying with Policies of
the Commonwealth in Procurement November
2010    
No. 13 Guidance on the Mandatory Procurement
Procedures January 2005  
2011/01 Commitments to spend public money (FMA
Regulations 7 to 13)
10
Configuration of the procurement system Process
fundamentals Conceptual business process Rules
and standards for procurement Regulated (or sound
practice) approaches or events Configuration of
the procurement system
11
Process fundamentals

• Procurement encompasses the end-to-end process of
  acquiring goods or services. A generic
  procurement process is much the same, whether
  you are buying stationery or professional
  services.
• Procurement Officials and Delegates have roles
  and responsibilities under the FMA Act and CPGs.
• Specifically, under s. 44 of the FMA Act Chief
  Executives are required to promote the efficient,
  effective and ethical use of Commonwealth
  resources. For procurement, this responsibility
  is mainly discharged by ensuring their agencies
  have appropriate policies, procedures and
  guidelines in place to achieve value for money.
• From agency to agency, procurement practices vary
  as the requirements of the FMA Act and CPGs are
  translated into agency specific Chief Executive
  instructions (CEIs) and operational procedures to
  fit the context of the organisation.

Outcome Proper use of Commonwealth
resources Efficient, effective, economical and
ethical use that is not inconsistent with the
policies of the Commonwealth As stated in the
FMA Act
12
Conceptual business process
The high level process for procurements under
80,000 (derived from the current requirements
set by the FMA Act and CPGs). Starts with an
identified procurement need and ends with the
acceptance of the goods/ services Triggered by a
business need or external drivers
Scope
End
No (grant)
Value the procurement
Define procurement need
Determine best approach
CPG Div 2 CEIs
gt 80,000
Yes
2
lt 80,000
Reg 9 Pre-approval
Open tendering
Seek pre-approval
Identify existing arrangements
3
No
Select tendering
End
i.e. Coordinated cooperative and internal
Direct sourcing 3
Yes 2
Issue request
Write specifications
Receive submissions
Delegations and approval processes s. 12 FMA
Act Regs 8, 9, 10, 12
Documentation CPGs 7.8 7.12
Reporting Annual Procurement Plans CPGs
7.15-7.16, AusTender CPGs 7.24
Identify and manage risks CPGs 6.8-6.10
4
Reg 8, 9, 10
CPG 7.23
CPG 7.24
Assess submission(s)
Identify successful supplier
Seek approval from Delegate
Inform all applicants of decision
Enter arrangement/ contract
Report AusTender 4
5
Accept good/ service
Pay for good/ service
End 5
1 Goods/ services identified 2 In accordance
with conditions specified in the contract 3
Assumes pre-approval
4 For contract value over 10,000 5 Out of
scope dealing with complaints, audits, warranty
claims, contract management, disposal of goods
13
Rules and standards for procurement
LEGEND

• The CPGs (Div. 1 - Procurement Principles)
  prescribe a number of business rules (must,
  should) and standards (need) that govern the
  way agencies conduct procurements. Appendix 1
  contains a detailed listing.
• There are 21 discreet musts or obligations with
  which agencies must comply. There are 20 discreet
  shoulds or matters of sound practice, and 10
  discreet needs or standards.
• The observation is that regulation of the system
  is mainly geared towards Accountability and
  Transparency, and is also an indication of what
  is driving agency behaviour.

Obligations which must be complied with
must
Matters of sound practice
should
A standard
need
must
should
need
1
1
1
3
2
3
7
3
5
10
15
100
20
21
51

• Note
• Clause 4.1 is treated as a must.

19
39
42
100




14
Regulated (or sound practice) approaches or events

• The CPG requirements relate to the way in which
  procurements are conducted (e.g. risk management)
  and to particular procurement events e.g. request
  documentation, reporting)

Request Documentation
VALUE FOR MONEY
4.3
4.1
Non-discrimination
Competitive processes
ENCOURAGE COMPETITION
5.2
5.4
5.7
5.8
5.3
5.5
EFFICIENT, EFFECTIVE, ETHICAL USE OF RESOURCES
Risk management
Limiting contractors liability
Ethics
6.8
6.10
6.12
6.15
6.20
6.21
6.9
6.13
6.16
6.21
6.22
6.14
ACCOUNTABILITY AND TRANSPARENCY
Open, transparent processes
Documentation
Disclosure- APPs
Disclosure- Notification
7.2
7.9
7.10
7.15
7.17
7.19
7.9
7.12
7.16
7.18
7.20
Disclosure- Process
Disclosure- Treatment of confidential info
Dealing with complaints
Disclosure- Other Obligations
7.23
7.21
7.22
7.33
7.34
7.34
7.21
7.23
7.26
7.34
7.34
7.28
7.31
Disclosure- Reporting
7.34
7.34
7.29
7.32
7.30
7.24
15
Configuration of the procurement system

• The requirements, rules and standards set out by
  the FMA Act and the CPGs configure the way the
  procurement system operates in practice and
  drive the performance of the system.
• In the absence of legislative change, agencies
  need to find ways to simplify and streamline
  their practices within a regulated system.
• The observation is that there is a disconnect
  between the desired outcome stated in the FMA Act
  (i.e. proper use of Commonwealth resources) and
  the core principle underpinning the Australian
  government procurement.

Rule set
Procurement Process
Outcome Proper use of Commonwealth
resources Efficient, effective, economical and
ethical use that is not inconsistent with the
policies of the Commonwealth As stated in the
FMA Act
16
Appendix
17
Appendix 1. Rules and standards for procurement
LEGEND
Obligations which must be complied with
CPG detailed clauses
must
Matters of sound practice
should
A standard
need
Value for money
Value for money Value for money is the core
principle underpinning the Australian government
procurement. In a procurement process this
principle requires a comparative analysis of all
relevant costs and benefits of each proposal
throughout the whole procurement cycle
(whole-of-life costing).
Request documentation Request documentation needs
to specify logical, clearly articulated,
comprehensive and relevant conditions for
participation and evaluation criteria. This
enables identification, assessment and comparison
of the costs and benefits of all submissions on a
fair and common basis over the whole procurement
cycle.
4.1
4.3
Encouraging competition
Non-discrimination Procurement methods must not
discriminate against potential suppliers due to
their degree of foreign affiliation or ownership,
location or size. The property or services on
offer must be considered on the basis of their
suitability for their intended purpose and not on
the basis of their origin.
Non-discrimination- SMEs Agencies need to ensure
that SMEs have appropriate opportunities to
compete for business
5.2
5.5
Competitive Procurement Processes Participation
costs (agencies and potential suppliers) should
be considered when determining a process
commensurate with the scale, scope and relative
risk of the proposed procurement.
5.7
Non-discrimination- SMEs Officials undertaking
procurement should ensure that procurement
methods do not unfairly discriminate against SMEs.
5.3
Competitive Procurement Processes Specific
procedures must be followed for covered
procurements. These procedures, which further
encourage competition and in many
circumstances require an open approach to the
market, are outlined in Division 2 OUT OF SCOPE.
5.8
Non-discrimination- SMEs Agencies should seek to
ensure that procurement processes are readily
communicated and accessible to SMEs and should
not take action to deliberately exclude SMEs from
participating.
5.4
18
Appendix 1. Rules and standards for procurement
LEGEND
Obligations which must be complied with
CPG detailed clauses
must
Matters of sound practice
should
A standard
need
Efficient, effective, ethical use of resources
Risk Management Risk management should be built
into an agencys procurement processes. Agencies
should ensure that appropriate procedures are in
place to identify and consider all relevant risks
throughout the procurement cycle.
Limiting a Contractors Liability to the
Commonwealth When considering a limit on a
suppliers liability, agencies should note that
arrangements to limit liability can carry direct
or indirect costs which must be considered within
the determination of value for money. Similarly,
if a risk assessment determines it would be
appropriate to require a supplier to accept
unlimited liability, value for money impacts need
to be considered.  
Ethics Agencies need to ensure that officials
involved in procurement a. recognise and deal
with any conflicts of interest, including
perceived conflicts of interest b. deal with
suppliers and potential suppliers
even-handedly c. consider seeking advice where
probity issues arise d. do not compromise the
Australian Governments standing by
accepting inappropriate gifts or hospitality e.
are scrupulous in their use of public property
and f. comply with all duties and obligations
including the agencys CEIs in relation to gifts
or hospitality, the information privacy
principles of the Privacy Act 1988, the security
provisions of the Crimes Act 1914 and, where
applicable, the Australian Public Services Code
of Conduct as set out in the Public Service Act
1999.
6.8
6.14
6.19
Risk Management Agencies should generally not
accept risks which another party is better placed
to manage. Similarly, where an agency is
best-placed to manage a particular risk, it
should not seek to inappropriately transfer that
risk to a supplier.
6.9
Limiting a Contractors Liability to the
Commonwealth Agencies should develop and
implement a risk management plan if it decides to
limit a contractors liability, through a
liability cap or indemnity, based on an
assessment of the risks and value for money
considerations.
6.15
Risk Management Agencies need to carefully
monitor the terms and conditions, including
pricing, on which risk allocations are
determined, to ensure that they reflect value for
money.
6.10
Limiting a Contractors Liability to the
Commonwealth Agencies must undertake a risk
assessment to inform any decision about whether
limiting a contractors liability through a
liability cap or indemnity would be appropriate,
and if so, what limits may be suitable.
6.12
Limiting a Contractors Liability to the
Commonwealth For more complex procurements,
request documentation should include a draft
contract with clear liability provisions.
Potential suppliers should be required to
indicate compliance with the entire contract,
including liability provisions, and separately
identify any clauses of non-compliance or partial
compliance, clearly providing details and costs
for any alternative clauses.
6.16
Ethics Agencies should include contract
provisions requiring contractors to comply with
materially relevant laws and should, as far as
practicable, require suppliers to apply such a
requirement to sub-contractors. Contractors must
also be able to make available details of all
sub-contractors engaged in respect of the
procurement contract.
6.20
Limiting a Contractors Liability to the
Commonwealth Agencies must undertake a risk
assessment to inform any decision about whether
limiting a contractors liability through a
liability cap or indemnity would be appropriate,
and if so, what limits may be suitable.
6.13
19
Appendix 1. Rules and standards for procurement
LEGEND
Obligations which must be complied with
CPG detailed clauses
must
Matters of sound practice
should
A standard
need
Efficient, effective, ethical use of resources
Ethics Agencies must not enter into contracts
with suppliers who have had a judicial decision
against them (not including decisions under
appeal) relating to employee entitlements and
have not paid the claim.
Ethics Agencies should seek to confirm a tenderer
has no such unsettled judgements by seeking a
declaration on the matter from all tenderers.
Ethics Agencies must not seek to benefit from
supplier practices that may be dishonest,
unethical or unsafe.
6.21
6.21
6.22
Accountability and Transparency
Open, transparent, justifiable processes Agencies
need to have procedures in place to ensure that
procurement processes are conducted soundly and
that procurement related actions are documented,
defensible and substantiated in accordance with
legislation and government policy.
Documentation Documentation relating to
procurement must be retained for a period of
three years or for a longer period if required by
legislation or other reason for a specific
procurement. In addition, the Archives Act 1983
sets out requirements in relation to Commonwealth
records, including dealings with, and access to,
such records.
Disclosure-Annual Procurement Plans Agencies must
publish on AusTender, by 1 July each year, an
Annual Procurement Plan (APP) to draw suppliers
early attention to potential procurement
opportunities.
7.2
7.10
7.15
Disclosure-Annual Procurement Plans The APP
should contain a short strategic procurement
outlook for the agency supported by details of
any planned procurement. The detail should
include the subject matter of any planned
procurement and the estimated date of the
publication of the approach to the market.
7.16
Documentation Agencies must maintain appropriate
documentation for each procurement. The
appropriate mix and level of documentation
depends on the nature and risk profile of the
procurement being undertaken.
7.9
Documentation Agencies should ensure there is a
written contract with the supplier in a
procurement process. Where a written contract
does not exist, agencies should ensure that
sufficient written documentation or a written
contract is formulated as soon as practicable.
For low value, routine purchases a purchase order
would be considered sufficient documentation.
7.12
Documentation Agencies need to ensure there
is sufficient documentation to provide an
understanding of the reasons for the procurement,
the process that was followed and all relevant
decisions, including approvals and
authorisations, and the basis of those decisions.
7.9
20
Appendix 1. Rules and standards for procurement
LEGEND
Obligations which must be complied with
CPG detailed clauses
must
Matters of sound practice
should
A standard
need
Accountability and Transparency
Disclosure- Notification Agencies must publish
all open approaches to the market on AusTender.
Relevant documentation providing information on
the approach to market must also be available, to
the extent practicable, for download from
AusTender.
Disclosure- Notification For select tenders,
agencies must issue all invitations to tender
electronically and, to the extent practicable,
make tender documentation available
electronically to all potential suppliers that
are invited. Electronic invitations may also be
supplemented by other documented forms of
invitation.
Disclosure- Process On request, debriefings
should also be provided to successful tenderers.
7.17
7.20
7.23
Disclosure- Reporting Agencies must report on
AusTender all Commonwealth contract and
agency agreements, including standing offer
arrangements and amendments to these
arrangements, which meet the contract reporting
criteria in Guidance on Procurement Publishing
Obligations.
7.24
Disclosure- Notification If an agency advertises
an open approach to the market through other
avenues, such as print media, the details
selected for inclusion in the notification must
be the same as those contained in AusTender.
Advertising an open approach to the market
through other avenues does not diminish the
requirement to publish the approach on AusTender.
Disclosure- Process Agencies need to promptly
provide, on request, to any potential supplier,
documentation that includes all information
necessary to permit potential suppliers to
prepare and lodge submissions.
7.18
7.21
Disclosure - Other Obligations To enhance
transparency, agencies must make available on
request, the names of any sub-contractor engaged
by a contractor in respect of a Commonwealth
contract for procurement. a. Agencies must
require contractors to agree to the public
disclosure of the names of any sub-contractors
engaged to perform services in relation to a
Commonwealth contract for procurement. b.
Contractors must be required to inform relevant
sub-contractors that the sub-contractors
participation in fulfilling a Commonwealth
contract for procurement may be publicly
disclosed.
7.26
Disclosure- Process Agencies must, to the extent
practicable, use AusTender to make request
documents available.
7.21
Disclosure- Notification Where an agency is
required to publish any other notification,
request documentation, or any other document on
AusTender, the information in any other form (for
example, a printed version) of the document must
be the same as that published on AusTender.
7.19
Disclosure- Process Where an agency rejects a
potential suppliers submission, the agency
must promptly advise them, and on request provide
a written explanation for that rejection.
7.22
Disclosure- Process Following the award of a
contract, agencies must promptly inform all
tenderers of the tender decision and on request
provide an unsuccessful tenderer with the reasons
its submission was not successful.
7.23
21
Appendix 1. Rules and standards for procurement
LEGEND
Obligations which must be complied with
CPG detailed clauses
must
Matters of sound practice
should
A standard
need
Accountability and Transparency
Disclosure - Treatment of Confidential
Information When conducting a procurement and
awarding a contract, agencies should take
appropriate steps to protect the Commonwealths
confidential information. This includes observing
legal obligations such as under the Privacy Act
1988 and statutory secrecy provisions.
Disclosure- Treatment of Confidential
Information The need to maintain the
confidentiality of information should always
be balanced against the public accountability
requirements of the Australian Government. It is
therefore important for officials to plan for and
facilitate appropriate disclosure of procurement
information. In particular, officials should a.
include provisions in request documentation and
contracts that alert prospective suppliers to the
public accountability requirements of the
Australian Government, including disclosure to
the Parliament and its committees b. where
relevant, include a provision in contracts to
enable the Australian National Audit Office to
access contractors records and premises to carry
out appropriate audits (model access clauses have
been developed for agencies to tailor and, where
appropriate, incorporate into relevant
contracts) c. consider, on a case by case basis,
any request by a potential supplier for material
to be treated confidentially after the award of a
contract, only entering into commitments to
maintain confidentiality where these are
appropriate and d. be aware of the requirement
for the disclosure of information consistent with
the Freedom of Information Act 1982.
Disclosure- Treatment of Confidential
Information Where confidential information is
required to be disclosed, for example following a
request from a Parliamentary committee,
reasonable notice in writing must be given to the
party from whom the information originated.
7.28
7.31
7.32
Dealing with Complaints Procurement processes
need to be based on clearly articulated and
defensible evaluation criteria consistent with
the procurement policy framework. Agencies
actions in undertaking procurement processes must
be robust and defensible.
7.33
Disclosure- Treatment of Confidential
Information Agencies should therefore ensure that
where it is necessary for potential suppliers to
have access to confidential information for the
purpose of preparing a submission that
appropriate steps are taken to ensure that
potential suppliers maintain the confidentiality
of that information
7.29
In the event that a complaint is received
agencies should aim to manage this process
internally, where possible, through communication
and conciliation with the tenderer or supplier.
7.34
Disclosure - Treatment of Confidential
Information Agencies should ensure that potential
suppliers submissions are treated as
confidential prior to the award of a contract and
that unsuccessful submissions are kept
confidential after the award of the contract to a
supplier.
Agencies must apply fair, equitable and
non-discriminatory complaint handling procedures.
7.34
7.30
The procedures should take account of the
following
7.34
a. the process needs to be systematic and well
understood by the parties involved
7.34
22
Appendix 1. Rules and standards for procurement
LEGEND
Obligations which must be complied with
CPG detailed clauses
must
Matters of sound practice
should
A standard
need
Accountability and Transparency
Dealing with Complaints b. senior management and
officials independent of the process should be
involved as appropriate c. complaints should be
dealt with in writing
7.34
d. each party must have sufficient time to
appropriately respond to developments (no less
than 10 days, unless urgent) e. if a matter has
been referred to an external body for review,
agencies may be required to provide all relevant
documents to that body as required by law and f.
agencies must ensure that the initiation of a
complaint process does not prejudice a suppliers
or a potential suppliers participation in future
procurement processes.
7.34
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