The Government Information (Public Access) Act 2009 is designed to meet community expectations for more open, accountable and transparent government. The Act requires councils to record and publish information about some contracts when entered into with the private sector.
A register of government contracts is mandatory open-access information, required under sections 6 and 18 of the GIPA Act and how this information is made available is prescribed in Part 3, Division 5 (sections 27 - 40 inclusive). The register must be published on Councils website and made public in any other way Council decides.
The GIPA Act defines a government contract as one:
- between Council and private sector entities (which is any entity or person that is not an NSW government agency)
- for a value of $150,000 or more, and
- which involves either:
- the contractor undertaking a specific project such as construction, infrastructure or property development;
- the contractor agreeing to provide specific goods or services (other than a contract of employment);
- or the transfer or lease of real property.
Classes of Contract
The GIPA Act defines three classes of a government contract and the detail of information required differs according to the class.
- contracts with a value of $150,000 or more require certain details to be recorded as a baseline or minimum.
- contracts not subject to tender, not made publicly available and terms negotiated with the supplier;
- contracts subject to tender and terms substantially negotiated
- contracts contain obligations for maintenance or operations for ten (10) years or more;
- contracts contain privately financed project;
- contracts involve the transfer of a significant asset of an agency to another party in exchange for the transfer of an asset to the agency.
- Class Three covers Class Two Contracts but where the value exceeds $5 million. Class Three contracts must include a copy of the executed contract attached to the register.
What is the value of a contract for the purposes of a government contracts register?
The value of a contract is:
- the total estimated value of the project; or
- the total estimated value of the goods and services over the term of the contract; or
- the value of the real property transferred; or
- the rent for the term of the lease.
- NB. Council cannot avoid disclosing the contract by signing several lower value contracts addressing the same project, as it is the total value which must be recorded.
- all values previously stated are inclusive of GST, which is deemed the "total value" of the contract.
When does the information need to be made available on the contracts register?
- Information about contracts must be entered in the register within 45 days working days of the contract becoming effective.
- If the contract is later varied such that it affects the particulars required to be included in the register, the information in the register must be amended to reflect these changes within 45 working days of the variation becomes effective.
How long must information remain on the contracts register?
The information on the contracts register (including a copy of the contract if applicable) only needs to be available as open-access information for whichever is longer:
20 working days or the period until:
- the project under contract is complete; or
- the goods and services have been provided; or
- the term of the lease has expired or the property has been transferred.
At what point is the contract deemed effective?
A contract is deemed effective once it is enforceable against both parties. That is when all parties to the contract have properly
signed the contract, and any conditions to properly execute the contract have been met.
Where do I find the relevant dates?
The commencement and completion dates may be found in one of several places on a contract:
- the definitions clause; or
- the clause outlining the terms of the contract; or
- the Schedule
If no commencement date is specified. The commencement date is the date the last party signed the contract.
Section 29-31 of the GIPA Act, set out the mandatory information to be entered into the Contracts Register. This includes at a minimum:
- the name and business address of the contractor;
- the particulars of any body corporate or private sector entity in which the contractor has an interest, that will be involved in carrying out any of the contractor's obligations or will receive a benefit under the contract;
- the date on which the contract becomes effective and the duration of the contract;
- the particulars of the project to be undertaken, goods or services to be provided or the real property to be leased or transferred under the contract;
- the estimated amount payable to the contractor;
- a description of any provision under which the amount payable may be varied;
- a description of any provision regarding renegotiation of the contract;
- if the contract arose from a tender process, the method of tendering and a summary of the assessment criteria;
- a description of any provision under which it is agreed that the contractor is to receive payment for providing operational or maintenance services.
Section 30(2) sets out additional information which must be included if the contract is a Class Two, such as any risk apportionment, or particulars of such transfers.
Under section 32 of the GIPA Act, agencies do not have to publish in the register of government contracts:
- commercial-in-confidence provisions of a contract.
- details of unsuccessful tenders
- any matter that could affect public safety or security.
- a contract or a provision of a contract where there is an overriding public interest against disclosure or OPIAD
- to determine if there is an OPIAD, Council need to apply the public interest test.
If Council is not including a copy of the contract, or are excluding some of the required information in the contracts register because it is confidential, section 32 (2) of the GIPA Act requires the inclusion of:
- the reasons why the information is not included;
- a statement on whether the information is likely to be included at a future date and if so when;
- a general description of the types of information that have not been included in the register.
(Team Leader - Organisational Procurement) END