Contracts Registers under the Government Information

(Public Access) Act 2009

Purpose

• This module aims to provide practical information for regulated entities in responding to contracts register requirements in the Government Information (Public Access) Act 2009 (GIPA Act).

• The GIPA Act is designed to meet community expectations for more open, accountable and transparent government.

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Contents

• What is the contracts register? • What is a government contract? • Three classes of contract • How do I work out the value of a contract for the purposes of the

government contract register? • When does the information need to be made available on the

contracts register? • How long does the information remain on the contracts register? • At what point is a contract deemed “effective”? • What information must be included in a contracts register? • What information is considered confidential? • What must we do if we exclude some confidential information? • Special exemptions • Quiz • Feedback

What is the contracts register?

The GIPA Act requires agencies 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. When and how this information about government contracts is to be recorded is in Part 3, Division 5 of the GIPA Act (sections 27-40 inclusive). The register must be published on a website and made public in any other way that the agency decides.

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What is the contracts register? (cont’d)

All government agencies, except for local government authorities, state owned corporations and universities, must make a copy of their government contracts available on the Government e-tenders website.

It is sufficient to have a link on your website to the e-tenders website. You do not need to duplicate the contracts register information, provided the link remains active and the e-tenders website is easily searchable so your agency’s information can be found.

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What is a government contract?

The GIPA Act defines a government contract as one: • between the agency and private sector entities

(which is any entity or person that is not a 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.

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Three classes of contract There are three different classes of government contract and the type of information required differs according to the class. Class 1 - contracts with a value of $150,000 or more require certain details to be recorded, as a baseline, or minimum. Class 2 - contracts not subject to tender, not made publicly available and terms negotiated directly with contractor; - contracts subject to tender and terms substantially negotiated; - contracts contain obligations for maintenance or operations for 10 years or more; - contracts involve a privately financed project; - contracts involve transfer of significant asset of agency to another party in exchange for transfer of an asset to the agency. Class 3 - Class 2 contracts with a value of $5million or more, must include a copy of the contract. Back to menu

How do I work out the value of a contract for the purposes of the government contracts register?

The value of a contract is:

• the total estimate value of the project; or

• the total estimated value of the goods or 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. You can’t avoid disclosing the contract by signing several lower value contracts addressing the same project, as it is the total value which must be recorded.

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When does the information need to be made available on the contracts register?

• Information about contracts must be entered in the register within 45 working days of the contact 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 becoming effective.

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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.

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At what point is a contract deemed “effective”?

A contract is effective once it is enforceable against all parties. That is, when all parties to the contract have properly signed it, and any conditions required to properly execute the contract have been met.

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Where do I find the relevant dates?

The commencement and completion dates may be found in one of several places on a contract: (a) the definitions clause; (b) the clause outlining the terms of the contract; or (c) the Schedule.

If no commencement date is specified, the commencement date is the date the last party signed the contract, so check the latest dated signature.

What information must be included in a contracts register?

Sections 29-31 of the GIPA Act, set out the mandatory information to be entered in the contracts register. This includes as a minimum: • the name and business address of the contractor; • the particulars of any related 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 became 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;

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• 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 provisions 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 2, such as any risk apportionment, or particulars of future transfers.

What information must be included in a contracts register? (cont’d)

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What information is considered confidential?

Under section 32 of the GIPA Act, agencies do not have to publish in the register of government contracts: • The commercial-in confidence provisions of a

contract • The 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, agencies need to apply the public interest. Further information about the public interest test is at www.ipc.nsw.gov.au

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What must we do if we exclude some confidential information? If you are 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 that you include:

• 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.

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Special exemptions Special exemptions apply for the government contracts register for: • Industry support contracts (for the Department of

State and Regional Development) – Section 38 • State owned corporations or a subsidiary of a State

owned corporation (for competitive neutrality) – Section 39

• Landcom (for contracts for sale of land) – Section 40

NB Entities are as named in the GIPA Act.

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What if the contract is pre-2009?

Any contract which came into effect after 1 January 2007 which meets Class 1, Class 2 or Class 3 requirements should be recorded in an agency’s Contracts Register.

What about GST?

As the requirement for the value of a contract is the “total value”, we would say that this is inclusive of GST.

Quiz

The following quiz has been developed to assist you to confirm your understanding of the contract register requirements covered in this presentation. More detailed information to assist you in fulfilling your obligations under the contracts register requirements is available from the IPC website at: http://www.ipc.nsw.gov.au/education-and-resources

Quiz

1. You must place information about a government contract on your contracts register if it has a total value of:

a) $150 or more

b) $1,500 or more

c) $150,000 or more

Answer

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2. Do employment contracts need to be included in the government contracts register?

a) Yes

b) No

Answer

Quiz

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3. Information required on the government contracts register must be available as open access information for:

a) 20 working days after the contract has been entered into, or

b) The period of time the contract is current, or

c) Whichever is the longer of a or b.

Answer

Quiz

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4. Are inter-agency contracts included in the contracts register?

a) Yes

b) No

Answer

Quiz

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5. My agency has a new contract for $6 million. Do we need to put a copy of the contract on the register of government contracts?

a) Yes

b) No

Answer

Quiz

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Feedback

Thank you for using this resource on contracts registers. We welcome your feedback. Our resources will continue to be tailored to respond to issues and needs identified through this feedback.

If you would like to tell us what you thought please email us on ipcinfo@ipc.nsw.gov.au.

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