Unsolicited Bids Guideline for the Sale or Lease of State-Owned Land

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1 Unsolicited Bids Guideline for the Sale or Lease of State-Owned Land 1

2 Contents 1. Background 3 2. Definition of an Unsolicited Bid 3 3. Objective of this Guideline 3 4. Application of this Guideline 4 5. Exclusions from this Guideline 4 6. Principles Underpinning this Guideline 4 7. Governance and Administration of this Guideline 5 8. Disclosure Requirements 5 9. Probity Requirements Assessment Criteria Pre-Submission Meeting Requirement Submission of Proposal Assessment of Proposal Exclusive Negotiation Process Open Competitive Process Intellectual Property Other Factors Terms and Conditions 13 Appendix 1: Unsolicited Bid Submission Checklist 14 Appendix 2: Unsolicited Bid Assessment Process 16 Appendix 3: Terms and Conditions 17

3 1. Background Ninety-two percent of the land area of the State of Western Australia (State) is Crown land with the Australian Bureau of Statistics conservatively estimating the value of this strategic asset at $73.7 billion. As the State s economy and population grows, so does the demand for land for residential, commercial, industrial, educational, social, recreational and environmental purposes. The Western Australian State Government (Government) is committed to unlocking the potential of its Crown land holdings to accommodate this growth. This guideline indicates a willingness on the part of the Government to partner with the private sector to realise this potential. This guideline also provides a mechanism for the private sector to deal directly with the Government on unique land proposals that provide an economic, social or environmental benefit to the State. 2. Definition of an Unsolicited Bid An unsolicited bid is a market-led proposal put to Government by the private sector which has not been formally requested by Government. In terms of the Department of Lands activities the focus of unsolicited bids is the purchase or lease of land (i.e. land or land and buildings) owned, held or managed by General Government Sector agencies and Public Non-Financial Corporations (State-owned land) for a specific development. 3. Objective of this Guideline The objective of this guideline is to set out a transparent and consistent framework to guide the Minister for Lands in the exercise of the power under the Land Administration Act 1997 to sell or lease State-owned land by private treaty in response to an unsolicited bid. The Government is committed to promoting transparent and competitive processes in the sale or lease of State-owned land, and ensuring proposals are appropriately assessed and justified on public interest grounds. However, the Government also recognises that circumstances may occasionally arise where it may be beneficial to deal exclusively with one party when: 3

4 the proposal is unique; and the proposal will have a significant and beneficial impact on the economy, community or environment; and the proposal delivers value for money to the State; and the proposal is feasible; and the proposal aligns with Government policy. 4. Application of this Guideline This guideline applies to all unsolicited bids for State-owned land in Western Australia: where the estimated cost of the proposal (excluding the value of the State-owned land) is $5 million or more; or that Cabinet, the Premier, or the Minister for Lands directs should be dealt with under the guideline. 5. Exclusions from this Guideline This guideline does not apply to: proposals dealt with by pre-existing programs and initiatives including, but not limited to, the State s Lead Agency Framework and the Water for Food Program; or proposals for contemporary, non-unique forms of residential, commercial and industrial development. 6. Principles Underpinning this Guideline The following principles underpin the process for considering unsolicited bids for State-owned land that is set out in this guideline: promoting unique (including innovative) ideas with the private sector where appropriate; ensuring an open, transparent and fair process that involves a high standard of probity and public accountability; ensuring value for money for the State is achieved; ensuring the benefits of the project for the community are measurable and can be maximised; and incorporating competitive processes wherever possible in the assessment framework to ensure value for money for the State. 4

5 7. Governance and Administration of this Guideline The Minister for Lands is the responsible Minister for this guideline. The Department of Lands is responsible for receiving unsolicited bids for Stateowned land, and for coordinating the assessment process set out in this guideline. 8. Disclosure Requirements Information about all unsolicited bids received and assessed is published on the Department of Lands website as follows: title of proposal; name of proponent; description of State-owned land; description of proposal; and reason why proposal was successful or unsuccessful. 9. Probity Requirements One of the underpinning principles of the unsolicited bids assessment process is to ensure that the process is open, transparent, fair and demonstrates the highest levels of probity consistent with the public interest. The assessment of unsolicited bids under this guideline will be conducted in accordance with the following probity principles: maintaining impartiality; maintaining accountability and transparency; managing conflicts of interest; and maintaining confidentiality. A probity advisor may be appointed for complex proposals where probity risk is considered sufficient to warrant it. More information about probity requirements is set out in Section 18 of this guideline. 10. Assessment Criteria Proponent Criteria There are five assessment criteria that must all be met by the proponent to justify a proposal being dealt with as an unsolicited bid. 5

6 (i) The proposal is unique To meet this criterion the proponent will need to demonstrate that the proposal has unique characteristics that will result in an outcome that could not otherwise be obtained through a competitive process involving other parties. In this regard, the following questions need to be addressed by the proponent: Can this proposal be readily delivered by competitors? If the answer is yes, what advantage would the Government gain by dealing exclusively with the proponent outside of an open competitive process? Are there intellectual property rights without which the proposal could not proceed? Does the proponent have ownership of other land that would place it in a unique position to deliver the proposal which other parties could not? Does the proponent have ownership of contractual rights that would place it in a unique position to deliver the proposal which other parties could not? Does the proponent have ownership of other unique assets that would place it in a unique position to deliver the proposal which other parties could not? Does the proposal have other demonstrably unique elements (including innovative ideas that constitute a significant departure from past practice) that are not able to be delivered by another party within acceptable timeframes? Example: A unique unsolicited bid proposal The proponent owns a large private hospital and has identified a shortage of cancer facilities in the region. The proponent wants to expand the existing hospital site to accommodate a new cancer care facility and has the necessary capital and capability to deliver. The facility would also include space for innovative public/private delivery of health services. A new larger operation will deliver economies of scale and, as a result, reduce service delivery costs. The hospital site is in an established suburb and is physically constrained by roads and privately-owned dwellings. A government agency owns a commuter car park on land that is adjoining the hospital site. The proponent submits an unsolicited bid proposal to acquire the State-owned land to enable the expansion of the hospital, and to provide replacement public car parking spaces under the new facility. (Adapted from New South Wales Unsolicited Proposals Guide for Submission and Assessment (February 2014) (ii) The proposal will have a significant and beneficial impact on the economy, community or environment To meet this criterion the proponent will need to demonstrate that the proposal will have a significant and beneficial impact in economic, social or environmental terms. 6

7 In this context: significant impact means an impact that is important, notable or of consequence having regard to its context or intensity; and beneficial impact means an improvement on an existing baseline condition or the introduction of a new desirable factor. (iii) The proposal delivers value for money to the State To meet this criterion the proponent will need to demonstrate that the proposal delivers value for money to the State. In this regard, the following questions need to be addressed by the proponent: What is being sought from the Government to facilitate the proposal (e.g. financial support; assets; or other support)? How is the proposal fairly and sustainably priced relative to comparable proposals? How does the proposal provide for an acceptable and optimal sharing of costs and risks between the Government and the proponent? How will the proposal meet acceptable commercial and industry standards? Will the financial benefits of the proposal outweigh the costs of any Government support including whole of life costs and revenue? (iv) The proposal is feasible To meet this criterion the proponent will need to demonstrate that they have the experience, capability and capacity to deliver the proposal. (v) The proposal aligns with relevant Government policy To meet this criterion the proponent will need to demonstrate that the proposal is consistent with the strategic objectives of the Government (e.g. State Planning Strategy 2050; relevant regional investment blueprint, relevant region and local planning scheme etc.). Government Criteria There are two further assessment criteria that will be addressed by the Government in its assessment of a proposal. 7

8 (vi) Not required for core Government business To meet this criterion the Government will need to satisfy itself that the State-owned land that is the subject of the proposal is not required for core Government business and could be sold or leased to a private party. (vii) No competing proposals or interests To meet this criterion the Government will need to satisfy itself that there are no known competing proposals or interests in respect of the land that is the subject of the proposal. 11. Pre-Submission Meeting Requirement Proponents are required to meet with Department of Lands staff prior to the lodgement of a submission to determine whether the proposal can be considered under this guideline and, if it can, the guideline requirements and assessment criteria. The submission checklist set out at Appendix 1 should be used, where relevant, by proponents to prepare a brief overview of the proposal in preparation for this meeting. 12. Submission of Proposal All proposals should be addressed to the Land Asset Management Unit, Department of Lands and submitted electronically to unsolicitedbids@lands.wa.gov.au. A submission checklist, which has been developed to assist in the preparation of a proposal, is set out at Appendix 1. Minimum information requirements include: confirmation that the pre-submission meeting has taken place in accordance with Section 11 of this guideline; details of the State-owned land that is the subject of the proposal using a Crown Land Enquiry Form (available from the Department of Lands website); an outline of the proposal; the estimated cost of the proposal (excluding the value of the State-owned land); a detailed description of the unique characteristics of the proposal in accordance with the assessment criterion set out in Section 10; the significant and beneficial impact on the economy, community or environment that will result from the proposal in accordance with the assessment criterion set out in Section 10; 8

9 how the proposal delivers value for money to the State in accordance with the criterion set out in Section 10; a detailed description of the proponent s experience, capability and capacity to deliver the proposal in accordance with the assessment criterion set out in Section 10; how the proposal aligns with relevant Government policy in accordance with the assessment criterion set out in Section 10; an indication of support for the proposal received from relevant agencies including State Government departments, redevelopment authorities or local governments; any support required from the Government as part of the proposal (e.g. financial support; assets; or other support); whether the proposal has previously been considered by the Government; identification of content in the proposal that the proponent believes should not be released as part of the public disclosure process set out in Section 8; areas of the proposal that are considered to be intellectual property; and declaration of any potential or actual conflicts of interest, including all contact between the proponent and Government officers in respect of the proposal. Intellectual property in the context of this guideline includes inventions, original designs and practical applications of good ideas protected by statute law through copyright, patents, registered designs, and trademarks. It also includes trade secrets, proprietary know-how and other confidential information protected against unlawful disclosure by common law and through additional contractual obligations such as confidential agreements. Conflicts of interest in the context of this guideline include situations arising from conflict between the performance of public duty on the part of Government officers and private or personal interests. Conflicts of interest may be actual, or be perceived to exist, or potentially exist at some time in the future. 13. Assessment of Proposal The assessment process involves two stages. Stage 1: Preliminary Assessment When a proposal is received, the Department of Lands will check to ensure that sufficient information has been provided. If sufficient information has been provided, the Department of Lands will conduct a preliminary assessment of the proposal to determine whether it meets the assessment criteria. 9

10 The Department may consult with other Government agencies at this stage and seek their input on the assessment of the proposal. When the Department has completed its assessment, it will submit a Preliminary Assessment Report to the Department of Lands Land Asset Management Advisory Group which is chaired by the Director General of the Department of Lands and comprised of senior representatives from the Department of the Premier and Cabinet, Department of Treasury, Department of Finance, Department of Housing, Department of Planning, Western Australian Planning Commission, LandCorp, Landgate, Metropolitan Redevelopment Authority, and State Heritage Office. The Land Asset Management Advisory Group will review the Preliminary Assessment Report and recommend to the Minister that either: further information be requested from the proponent; the proposal should proceed to Stage 2 of the assessment process; or the proposal should not proceed. The Minister will consider the Land Asset Management Advisory Group s recommendation and make a decision. Once a decision has been made, the Department of Lands, acting on behalf of the Minister, will inform the proponent of the decision in writing including the reasons underpinning the decision. Brief details of the proposal will be published on the Department of Lands website at the conclusion of this stage. Proponents may request that proposals are not listed at this stage if this would pose significant risks to commercial confidentiality, commercial negotiations or intellectual property. The decision, however, will be solely at the discretion of the Department of Lands. Proposals that are rejected at this stage will not be reconsidered. Stage 2: Detailed Assessment The Detailed Assessment process is designed to provide the proponent with the opportunity to demonstrate in more detail the extent to which the proposal satisfies the assessment criteria and any other relevant matters identified during the Preliminary Assessment. At the commencement of Stage 2, the Department of Lands and the proponent may enter into a participation agreement setting out: 10

11 the nature and terms of the agreement; the format of the detailed submission (e.g. a robust business case) including the nature and level of detail required by the Department to inform the assessment process; the criteria to be used to assess the proposal; any relevant matters identified during the Stage 1 assessment process; communication protocols, including a prohibition on lobbying; a process for identifying and treating intellectual property; process terms and conditions; and such other matters as the State considers relevant. During this stage the proponent will be required to: develop and submit to the Department of Lands a detailed proposal in an agreed format that provides sufficient information to enable the Department to determine whether the proposal meets the assessment criteria; and where requested by the Department, provide additional information or participate in meetings or workshops to clarify the proposal and respond to any questions to assist the Department s assessment of the proposal. When a detailed proposal is received, the Department of Lands will check to ensure that sufficient information has been provided. If sufficient information has been provided, the Department of Lands will conduct a detailed assessment of the proposal with assistance from other Government agencies and specialist consultants where required. When the Department has completed its assessment, it will submit a Detailed Assessment Report to the Department of Lands Land Asset Management Advisory Group. The Land Asset Management Advisory Group will review the Detailed Assessment Report and recommend to the Minister that either: the proposal should be approved and the Minister enter into exclusive negotiation with the proponent to sell or lease the State-owned land by private treaty; or the proposal has merit but should go through an open competitive process; or the proposal should not proceed. The Minister will consider the Land Asset Management Advisory Group s recommendation and seek Cabinet s approval before making a decision. 11

12 Once a decision has been made, the Department of Lands, acting on behalf of the Minister, will inform the proponent of the decision in writing including the reasons underpinning the decision. The details of the proposal published on the Department of Lands website at the conclusion of the Stage 1 assessment will be updated at the conclusion of this stage or added if not previously published. Proposals that are rejected at this stage will not be reconsidered. 14. Exclusive Negotiation Process If the proposal is successful, the Department of Lands will negotiate the sale or lease of the State-owned land by private treaty on behalf of the Minister in accordance with Government policy. The details of the proposal published on the Department of Lands website at the conclusion of the Stage 2 assessment will be updated at the conclusion of the exclusive negotiation process. 15. Open Competitive Process If the proposal has merit but the Minister decides that it should go through an open competitive process, the Department of Lands will undertake one or more of the following on behalf of the Minister in accordance with Government policy: invite expressions of interest in respect of the State-owned land; invite public tenders for the purchase or lease of the State-owned land; sell or lease the State-owned land by public auction; sell or lease the State-owned land by public tender. 16. Intellectual Property While all reasonable steps will be taken to protect the intellectual property of the proponent, the proponent should be mindful that it participates in the unsolicited bids process set out in this guideline at its own risk. 17. Other Factors The Minister may take into account any other factors or considerations that it considers relevant to the assessment of an unsolicited bid, including any that may arise as a consequence of the nature and content of the proposal, of applicable government policy or strategy and of pertaining economic, social, legal or other events or states of affairs. 12

13 18. Terms and Conditions The Terms and Conditions are set out in Appendix 3. 13

14 Appendix 1: Unsolicited Bid Submission Checklist TYPE OF INFORMATION Guideline Pre-Submission Meeting Land Details Outline of Proposal Estimated Cost of Proposal Uniqueness Significant and Beneficial Impact Value for Money Feasibility Alignment with Government Policy Support Received from Relevant Agencies Support Required from Government CHECKLIST Have you read the guideline? Have you discussed the guideline requirements with the Department of Lands? Have you filled out a Crown Land Enquiry Form (available from the Department of Lands website)? Have you clearly outlined the proposal? Have you provided the estimated cost of the proposal (excluding the value of the State-owned land)? Have you demonstrated why the proposal is unique in accordance with Section 10 of the guideline? Have you demonstrated that the proposal will have a significant and beneficial impact on the economy, community or environment in accordance with Section 10 of the guideline? Have you demonstrated how the proposal delivers value for money to the State in accordance with Section 10 of the guideline? Have you demonstrated that you have the experience, capability and capacity to deliver the proposal in accordance with Section 10 of the guideline? Have you demonstrated how the proposal is consistent with the strategic objectives of the Government (e.g. State Planning Strategy 2050 etc.) in accordance with Section 10 of the guideline? Have you clearly articulated any support for the proposal received from relevant agencies including State Government departments, redevelopment authorities or local governments? Have you clearly articulated any support required from the Government in respect of the proposal (e.g. financial support; assets; or other support)? 14

15 TYPE OF INFORMATION Previously Considered Public Disclosure Intellectual Property Conflict of Interest CHECKLIST Has the proposal previously been considered by the Government? Have you clearly identified the content in the proposal that you believe should not be released as part of the public disclosure process set out in Section 8 of the guideline? Have you clearly identified the areas of the proposal that are considered to be intellectual property? Have you declared any potential or actual conflicts of interest, including all contact with Government officers in respect of the proposal? 15

16 Appendix 2: Unsolicited Bid Assessment Process Pre-Submission Meeting Proponent develops unsolicited bid proposal. Proponent meets with Department of Lands staff to discuss proposal, Unsolicited Bids Guideline for the Sale or Lease of State-Owned Land (Guideline) requirements, information required to accompany submission, and assessment process. Submission of Proposal Proponent prepares proposal and submits it to Department of Lands for assessment. Stage 1: Preliminary Assessment Department of Lands prepares Preliminary Assessment Report and submits it to Land Asset Management Advisory Group for consideration. Land Asset Management Advisory Group considers report and recommends to Minister for Lands that either: (a) further information be requested from proponent; or (b) proposal should proceeed to Stage 2: Detailed Assessment; or (c) proposal should not proceed. Minister for Lands makes decision and informs proponent in writing. Stage 2: Detailed Assessment Proponent prepares detailed proposal and submits it to Department of Lands for assessment. Department of Lands prepares Detailed Assessment Report and submits it to Land Asset Management Advisory Group for consideration. Land Asset Management Advisory considers report and recommends to Minister for Lands that either: (a) proposal should be approved and Minister enter into exclusive negotiation to sell or lease the State-owned land by private treaty; or (b) proposal has merit but should go through an open competitive process; or (c) proposal should not proceed. Recommendation to Cabinet Minister for Lands considers Land Asset Management Group's recommendation and seeks Cabinet approval before making decision. Cabinet considers proposal and makes decision. Decision Minister for Lands gives effect to Cabinet's decision in accordance with Minister's powers under Land Administration Act 1997 and informs proponent of decision in writing. 16

17 Appendix 3: Terms and Conditions Glossary In this Appendix the following terms and conditions have the meaning opposite. Addendum/Addenda: Associates: An amendment to or clarification of this Process issued by the State pursuant to clause 10 of these Terms and Conditions. Any officer, employee, agent, consultant, contractor, nominee, licensee or advisor of: (a) (b) the State, including any other Government Party; or a Proponent Member including any Financier and Related Body Corporate of a Proponent Member. Claim: Consortium: Consortium Entities: Control: Any proceeding, cause of action, action, demand or suit (including by way of contribution or indemnity). A team, joint venture or consortium of entities that comprises the Proponent that submits a Proposal. Where the Proponent is a Consortium, an entity that is a member, shareholder, partner or joint venturer in that Proponent. For the purposes of the Terms and Conditions: (a) (b) (c) control or influence of, or having the capacity to control or influence the composition of the board, or decision making, directly or indirectly, in relation to the financial and operating policies; being in a position to cast, or control the casting of, more than 20 per cent of the maximum number of votes that may be cast at a general meeting; or having a relevant interest (as defined in section 608 of the Corporations Act) in more than 20 per cent of the securities (as defined in the Corporations Act), of the 17

18 Lead Proponent Member or each Proponent Member. Corporations Act: Disclosed Information: The Corporations Act 2001 (Cth). The following information (of whatever nature, including written, graphical, electronic, oral, or in any other form) which is either directly or indirectly disclosed to, or otherwise obtained by or on behalf of, a Proponent in respect of or in connection with the Process: (a) (b) (c) (d) (e) Information Documents; any oral advice, representations or information given or furnished by or on behalf of the State or the State's Associates during the Process; all material disclosed in presentations or briefings by or on behalf of the State or an Associate of the State in connection with the Process; all discussions and negotiations between the State and any Associate of the State (on the one hand) and any Proponent Member or any Associate of the Proponent Member (on the other hand) relating to Process; any other information which a Proponent Member or an Associate of a Proponent Member knows or ought reasonably to know is confidential to the State or an Associate of the State or should be treated as such. Financier: (a) Any actual or potential provider of debt funding, facilities or accommodation directly or indirectly to a Proponent in relation to the Process, including any associated security trustee, bond trustee, agent, underwriter, arranger, financial guarantor or bond provider, hedge counterparty however described, not including any of the State or its Associates; and (b) any actual or potential provider of equity funding, facilities or accommodation directly or indirectly to a Proponent in relation to the 18

19 Process including any associated trustee, agent, underwriter, arranger or financial guarantor, however described. FOI Act: Government Party: Information Documents: Lead Proponent Member: Liability: Loss: Probity Checks: Process: Proponent: Proposal (or proposal): Proponent Member: The Freedom of Information Act 1992 (WA). Any governmental, semi-governmental or local government authority, minister, department, statutory corporation, instrumentality or government owned corporation. Any document or amendment to a document which is issued by the State to a Proponent as part of the Process and at the time of issue, is expressly stated to be an Information Document. The Proponent Member identified as the Lead Proponent Member in the Process. Any debt, obligation, cost (including legal costs), expense, Loss, damage, compensation, charge or liability of any kind, including those that are prospective or contingent and those the amount of which is not ascertained or ascertainable. Any cost, expense, damage or liability whether direct, indirect or consequential (including pure economic loss), present or future, ascertained, unascertained, actual, prospective or contingent or any fine or penalty. The meaning given to that term in clause 15 of these Terms and Conditions. The receipt and evaluation of the Proposal as set out in this guideline. All of the Proponent Members acting as a group in participating in the Process. The unsolicited proposal lodged by the Proponent. Each of the following, in their individual capacity: (a) the Lead Proponent Member; 19

20 (b) (c) each person identified as a Proponent Member in the Proposal which must include each Financier (if applicable); and any other person that is added as a Proponent Member from time to time in accordance with these Terms and Conditions. Public Disclosure Obligations: The meaning given in clause 14 of these Terms and Conditions. Recipient: (a) the Lead Proponent Member; (b) each other Proponent Member; and (c) any other person to whom a Proponent Member discloses the Disclosed Information. Recipient Obligations: Related Body Corporate: Related Party: State: State's Representative: Terms and Conditions: WA: The meaning given to it in clause 13 of these Terms and Conditions. The meaning given to it in the Corporations Act. The meaning given to it in the Corporations Act. The Crown in the right of the State of Western Australia and includes a department established under the Public Sector Management Act 1994 (WA) and a Minister of the Crown, whether body corporate or otherwise. References to the State include references to the State agency on the cover of this guideline. Any person appointed by the State from time to time to act as its representative for the purpose of the Process. These terms and conditions. Western Australia 20

21 1. Application to Process a) These terms and conditions apply generally to the Process. b) The State reserves the right to impose additional or amended terms and conditions throughout the Process. 2. General a) Capitalised terms used in these Terms and Conditions are defined in the Glossary of these Terms and Conditions. b) Unless otherwise directed or agreed by the State, all communications by or on behalf of the Proponent with the State including any notices required to be provided by the Proponent under these Terms and Conditions shall be provided by the Lead Proponent Member. c) No entity may participate in the Process unless that entity is a Proponent Member or an Associate of a Proponent Member. d) Where there is more than one Proponent Member, the obligations and liabilities of a Proponent Member under these Terms and Conditions apply to each Proponent Member jointly and severally. e) Following receipt of a written notice pursuant to sub-clause 2(e) above or if the State otherwise discovers an ambiguity, discrepancy or inconsistency, the State in its sole and absolute discretion, will direct the Proponent in writing as to how to resolve the ambiguity, discrepancy or inconsistency. f) No rule of interpretation applies to the disadvantage of the State on the basis that the State put forward the Terms and Conditions. g) Unless the context indicates a contrary intention, in these Terms and Conditions: i. "includes" in any form is not a word of limitation; and ii. the meaning of "or" will be that of the inclusive "or", meaning one, some or all of a number of possibilities. h) If any of the Terms and Conditions purport to exclude liability for a particular matter, such exclusion only operates to the extent permitted by law. 21

22 3. Application of Terms and Conditions 3.1 Proponent Members a) By submitting a Proposal, each Proponent Member agrees to comply with: i. this guideline and these Terms and Conditions; and ii. any additional terms and conditions imposed by the State during the Process for the duration of the Process. b) In consideration of the Proponent Members agreeing to be bound by these Terms and Conditions the State will, subject to the State s rights set out in this guideline and clause 4 below, receive and consider the Proponent's Proposal. 3.2 Proponent Members Associates a) In these Terms and Conditions, references to a Proponent Member includes each of its Associates. b) Each Proponent Member must ensure that each of its Associates complies with these Terms and Conditions as if it was a Proponent Member. 4. State's rights 4.1 Directions Each Proponent Member must comply with any direction or requirement of the State given under the Terms and Conditions or issued under any Addenda. 4.2 Discretions By submitting a Proposal, each Proponent Member acknowledges and agrees that the State reserves the right in its absolute discretion and at any time to: a) cancel, suspend or change the Process, or any aspect of the Process or to take such other action as the State considers, in its absolute discretion, appropriate in relation to the Process; b) require additional information from any Proponent Member in which case, the Proponent Member must provide such information within a reasonable time of the State's request; c) refuse to consider or evaluate the Proposal or terminate the Proponent's participation in the Process if: 22

23 i. any Proponent Member breaches this guideline or the Terms and Conditions, including if the breach occurred prior to the lodgement of its Proposal; ii. any Proponent Member fails to meet a direction or requirement of the State under this guideline or these Terms and Conditions; iii. the Proposal is materially incomplete or fails to satisfactorily address the requirements of this guideline; d) where the Proponent consists of more than one Proponent Member, hold meetings or workshops or discussions with, or seek information from, one or more Proponent Members at any time during the Process with or without notifying the other Proponent Members; e) reject the Proposal outright; f) change any evaluation criteria in the guideline upon giving reasonable notice to the Proponent; g) have regard to: i. the State's knowledge and previous experience and dealings with any of the Proponent Members; and ii. without limiting paragraph (g)(i), information about the past or current performance of the Proponent or any Proponent Member under any other contract, arrangement or dealing between the Proponent or Proponent Member and a Government Party; and iii. information concerning any Proponent Member which is in the public domain or which is obtained by the State through investigations; h) change the identity of the entity or person entering into any final contract on behalf of the State; i) discuss and negotiate with the Proponent any matter arising out of their Proposal, and take such discussions and negotiations into account in its evaluation; and j) waive any requirement or obligation under this guideline. The State is not required to give reasons for the exercise of any of the State's rights in accordance with this clause 4. 23

24 5. State Consent Whenever the consent of the State is required under this guideline or these Terms and Conditions, that consent may be given or withheld by the State in the State's absolute discretion and may be given subject to such conditions as the State may determine. 6. No Claim Each Proponent Member releases the State and its Associates from all Liability in relation to the Process and no Proponent Member will make a Claim against the State or any of the State's Associates arising out of the exercise or any failure of the State to exercise or perform any rights, obligations or duties under this guideline or otherwise in connection with the Process. This clause 6 may be pleaded by the State or its Associates as a bar to any proceedings commenced by a Proponent Member against the State or its Associates in relation to the Process. 7. No legal relationship Each Proponent Member acknowledges and agrees that: a) consideration of the Proposal does not constitute any representation that the State will enter into any final contract; b) other than any final contract that may be entered into by the State and a Proponent: i. no contract exists or will arise between the State and the Proponent in respect of the Process; and ii. neither the State nor the Proponent intend to create a legal relationship; and c) this guideline and these Terms and Conditions set out the entire agreement between the parties in respect of the Process. 8. Information from the State 8.1 No warranty Neither the State, nor any Associate of the State, warrant, guarantee or make any representation (express or implied), or assume any duty of care, or accept any liability, with respect to the completeness, accuracy, adequacy or correctness of Disclosed Information. 24

25 8.2 Inconsistency The State may elect to issue any Disclosed Information to the Proponent in hard copy and electronically. To the extent that there is any inconsistency between a hard copy and an electronic version, unless the State's Representative directs otherwise (acting in its discretion), the electronic copy shall take precedence. 8.3 Own enquiries Each Proponent Member agrees that it does not rely on any information provided by the State or its Associates in relation to the Process and that it must make its own enquiries in relation to the Process. 8.4 No details The State is not required, and does not intend to release any details regarding the evaluation process of the Proposal other than as contained in this guideline. 9. Addenda Each Proponent Member agrees that: a) at any time during the Process the State may, for any reason (but without being obliged to do so), amend the Process by issuing an Addendum to this Process. Any Addenda issued shall be deemed to form part of this Process. None of the State or any of the State's Associates will be liable for any costs, losses, expenses or damages incurred by the Proponent as a consequence of any such Addenda; b) the Process may only be amended or supplemented by Addenda issued under this clause 9. No statement or representation made by the State or by an Associate of the State (whether at an industry briefing, workshop, question and answer session or otherwise) modifies or supplements this Process, unless the statement or representation is confirmed by an Addendum. 10. Enquiries, clarification and proprietary communications 10.1 Enquiries to the State s Representative a) The Proponent must submit any enquiries or clarification questions regarding the Process in writing to the State s Representative or any probity adviser (as appropriate) in accordance with Section 9 of this guideline. 25

26 b) Other than in accordance with clause 10.1(a), a Proponent Member may not directly contact the State to discuss any aspect of the Process (including its Proposal) State requests clarification The State may: a) request written clarification; b) conduct clarification meetings; or c) request further information in clarification workshops, with the Proponent as part of the State s evaluation process. The Proponent will be notified if clarification is required and the nature of the clarification being sought Proponent requests clarification a) All requests for clarification from the Proponent in respect of its Proposal or the Process must be in writing and in a form required or otherwise approved by the State. b) The decision of whether to respond to any request for clarification from the Proponent and the content of any response is at the absolute discretion of the State. 11. Proponent's representations, acknowledgements and warranties 11.1 Acknowledgements Each Proponent Member acknowledges and agrees that: a) the entire Process is being conducted solely for the State s benefit; b) the State will rely upon the warranties given by Proponent Members in clause 11.2, in evaluating the Proposal; c) it will not rely on any oral advice, representation or information given or furnished by or on behalf of the State or the State s Associates with respect to the Process or any Disclosed Information; d) in no circumstances will the State or any Associate of the State be liable to a Proponent Member whether in contract, tort (including negligence, misrepresentation or breach of warranty), under statute or otherwise for any 26

27 costs, losses, expenses or damages incurred or suffered by the Proponent Member as a result of or arising from: i. any incompleteness or inadequacy of, or any inaccuracy or error in, or omission from; or ii. any use of, or reliance by, the Proponent Member upon, any Disclosed Information. e) this guideline and any Proposal will not form any part of any final contract except to the extent expressly incorporated in any final contract; f) the Proponent Member participates in the Process at its own cost and risk; and g) except in the State s absolute discretion, no payment will be made by the State or the State s Associates to the Proponent for any costs, losses, expenses or damages incurred by the Proponent in preparing and submitting a Proposal, or otherwise incurred in respect of: i. preparing for and attending any interview, meeting or workshop conducted pursuant to this Process; ii. otherwise participating in the Process, in accordance with the terms of this guideline; and iii. as a consequence of the exercise of the State s rights in accordance with clause Representations and warranties By submitting a Proposal each Proponent Member represents and warrants that: a) it has examined all information and documents which are relevant to the Process; b) its Proposal and any subsequent information submitted to the State pursuant to this guideline: i. are based on its own independent assessment and investigations, interpretations, deductions, information and determinations; and ii. are complete and accurate; c) it has examined all information relevant to the risks, contingencies and other circumstances having an effect on its Proposal which is obtainable by the making of reasonable enquiries, which enquiries the Proponent has made; 27

28 d) it has not paid or received and will not pay or receive any secret commission in respect of this Process; e) it has not entered and will not enter into any unlawful arrangements with any other person in respect of its Proposal and the Process; f) it has not sought and will not seek to influence any decision in respect of its Proposal or the Process by improper means; g) any information provided to the State during any interview, meeting or workshop or otherwise submitted to the State pursuant to its Proposal and the Process, is accurate; h) it did not place any reliance upon the completeness, accuracy, adequacy or correctness of any Disclosed Information; and i) it has complied with its obligations in relation to the registration of any Lobbyist (as that term is defined in the Public Sector Commissioner's Circular "Contact with Lobbyists Code and the Register of Lobbyists") in relation to the Process. A copy of the circular is available at: Status of Proposal and Proponent 12.1 Material changes a) The Proponent must notify the State promptly in writing of any: i. material change: a. to any of the information contained in its Proposal; b. to any additional information submitted to the State pursuant to this Process; and c. to any information submitted to the State in any interview, meeting or workshop conducted pursuant to this Process; ii. event which may affect or have an impact on the financial position or capacity of any Proponent Member; or iii. circumstances which may affect the truth, completeness or accuracy of any of the information provided in, or in connection with, its Proposal. b) Upon receipt of any written notification pursuant to clause 12.1(a) above, the State reserves the right to assess the change and terminate the Proponent's further participation in the Process, or to invite the Proponent to amend its Proposal accordingly. 28

29 12.2 Status of Proponent Members a) If, after lodgement of its Proposal: i. there is a change in the structure of a Proponent Member or there is otherwise a change in Control of a Proponent Member; or ii. the Proponent replaces, adds or removes a Proponent Member, iii. the Proponent must: (A) promptly notify the State; (B) provide the State with sufficient details of the change; and (C) provide evidence to the State that any new Proponent Member has agreed to be bound by the Terms and Conditions. b) Upon receipt of such notification the State will assess any change and reserves the right to accept the change and impose such conditions as it thinks fit in connection with accepting the change or terminate the Proponent's further participation in the Process No amendment The Proponent may not amend its Proposal (unless invited or requested to do so by the State) after it has been submitted No requirements to return Each Proponent Member agrees that the State will not be required to return the Proposal or any documents, materials, articles and information lodged by the Proponent as part of, or in support of, the Proposal. 13. Confidentiality and disclosure by Proponent 13.1 Disclosed Information a) Each Proponent Member must: i. keep Disclosed Information confidential, save: A. to the extent it is proven to be necessary to comply with any applicable law; B. where the Proponent Member can demonstrate that the information is already in the public domain (other than due to a breach of its obligations under this Process); C. where agreed to or required by the State, and then only in accordance with clause 13.1(a)(vii) below; ii. not use, copy, reproduce or distribute any Disclosed Information except as required for the purposes of participating in the Process and then only to the extent reasonably necessary; 29

30 iii. immediately notify the State if it becomes aware of a suspected or actual unauthorised disclosure, copying or use of Disclosed Information; iv. immediately take all reasonable steps to prevent or stop any such suspected or actual unauthorised disclosure, copying or use of Disclosed Information (including complying with directions of the State in this regard); v. take all reasonable steps to recover any unauthorised Disclosed Information that has been disclosed, used or copied; vi. not make a media release or other public announcement or statement in relation to its Proposal or the Process without the prior written consent of the State; and vii. ensure that each party to whom it discloses Disclosed Information, including any Recipient, complies with the obligations in clauses 13.1(a)(i) to (vi) (Recipient Obligations). b) Each Proponent Member agrees to take enforcement action against any Recipient to whom it has disclosed the Disclosed Information in the event that the Recipient breaches any Recipient Obligations Survives Termination The obligations in clause 13 continue after termination of the Proponent Member s participation in the Process. 14. State s Public Disclosure and Freedom of Information 14.1 State's Public Disclosure Obligations Each Proponent Member agrees to: a) the disclosure by any person to the State or the State's Associates of information concerning a Proposal, the Proponent or a Proponent Member for the purpose of the State exercising its rights set out in this guideline or at law; b) the State disclosing any aspect of the Proposal or any other information provided by the Proponent to the State during the Process to enable the State to meet public disclosure obligations the State may have: i. under any current or future legislation; ii. under any current or future policy of the State; iii. in the course of official duties of the Minister of the State; iv. to satisfy requirements of parliamentary accountability; v. in annual reports of the State; or vi. to satisfy any other recognised public requirement, (Public Disclosure Obligations); 30

31 c) the State or the State's Associates publicly publishing or disclosing (on the internet or otherwise) information in relation to the Process, the Proposal or the details of the Proponent and Proponent Members, including the terms and conditions of any final contract State Licence Each Proponent Member agrees to grant the State and the State's Associates an irrevocable, perpetual, royalty free, non-exclusive licence to disclose, copy, use, adapt, modify, sublicense or reproduce the whole or any portion of the Proposal for the purposes of evaluation and clarification of the Proposal and for the finalisation of any contract Freedom of Information Act Each Proponent Member acknowledges that the Freedom of Information Act 1992 (WA) (FOI Act) applies to the information provided by the Proponent in its Proposal or as otherwise submitted by the Proponent to the State pursuant to this Process and that: a) the FOI Act allows members of the public rights of access to the State's documents and the State s Associates' documents; b) all or part of the information provided by the Proponent may be disclosed to third parties if there is a requirement to do so under the provisions of the FOI Act; c) any information that the Proponent considers is commercially sensitive or confidential must be marked "commercial and confidential". This special notation must not be used unless the information is genuinely confidential. Marking information as "commercial and confidential" will not necessarily prevent disclosure of the information in accordance with the FOI Act. Any decision to release information will be determined by the requirements of the FOI Act; and d) save to the extent expressly permitted under the FOI Act, no Proponent Member will be able to commence any action or make any claim against the State or the State's Associates for the release of any information by the State under the FOI Act (including any information submitted by any Proponent Members to the State pursuant to this Process. 31