Procurement guidelines Contract disclosure

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1 Procurement guidelines Contract disclosure October 2013

2 Procurement guidelines Contract disclosure Context within the procurement process guidance framework Procurement guidance materials are designed to guide procurement professionals through the three key stages of the procurement process: Procurement planning Supplier engagement Managing supply arrangements. The procurement process guidance framework is shown in Figure 1 below. Figure 1: Procurement process guidance framework This guideline supports the Awarding sub-element of the Supplier Engagement component of the procurement process guidance framework. Procurement Transformation Division (Department of Public Works), April 2011.

3 Procurement guidelines Contract disclosure Table of contents Context within the procurement process guidance framework...ii 1. Purpose What are the requirements? Affected agencies Using these guidelines 2 2 Document management Context Relationship to the Queensland Procurement Policy Relationship to the Right to Information Act Disclosure methods Selecting a method of disclosure Optional additional disclosure Validation processes Mandatory requirement 5 5 Information to be published on the QTenders website Contract disclosure requirements under the Queensland Procurement Policy Dealing with requests for further information Mandatory requirement More information 6 6 Contract reporting criteria Identifying reportable contracts Inclusions Exclusions How to calculate contract value Reporting multi-stage procurements Standing offer arrangements Optional aggregated reporting Mandatory requirements Recommended practice 11 7 Treatment of variations and amendments Variations in contract value 11

4 Procurement guidelines Contract disclosure Standing offer arrangements Capital works construction contracts and variations Non-value variations and other amendments Mandatory requirements Recommended practice 13 8 Considerations for making decisions about disclosure The disclosure environment A note on confidentiality clauses and commercial-in-confidence information Using the Right to Information Act to guide disclosure decision making Documents to which the Right to Information Act does not apply Entities to which the Right to Information Act does not apply Exempt information Public interest factors Mandatory requirements More information 18 9 Recording reasons for non-disclosure Overview Mandatory requirement References and more information...19

5 Procurement guidelines Contract disclosure Page 2 of Purpose The purpose of these guidelines is to assist affected agencies to disclose details of awarded contracts as required by clause 27 of the Queensland Procurement Policy. 1.1 What are the requirements? Under the Queensland Procurement Policy, affected agencies must: publish basic details of all awarded contracts and standing offer arrangements of $10,000 and over, and publish additional contract details of contracts and standing offer arrangements of $10 million and over. Refer to section 6 of this guide for more information regarding the meaning of the term contract. The contract information must be published within 60 days of contract date, on the QTenders website. 1.2 Affected agencies For the purpose of the Queensland Procurement Policy, affected agencies include: budget sector agencies large statutory bodies Special Purpose Vehicles. Refer to the Queensland Procurement Policy for more information, including definitions, with respect to these entities. Agencies subject to the Queensland Procurement Policy which are not affected agencies are encouraged to consider implementing the requirements as part of good practice in transparency. 1.3 Using these guidelines These guidelines provide affected agencies with the what, when, how and where of contract disclosure pursuant to the Queensland Procurement Policy. Affected agencies should use this information in preparing amendments to agency procurement procedures for the purpose of implementing the disclosure obligations, including developing training for officers undertaking procurement activities. In this sense, the guidelines should be made available both to procurement practitioners / professionals within the agency, as well as non-procurement staff who may make or influence procurement decisions. These guidelines refer to mandatory requirements (what agencies must do) arising from obligations under the Queensland Procurement Policy. This is supported by recommended practice guidance (what agencies should do) as well as supplementary information and references to related information. These guidelines should be read together with the Queensland Procurement Policy and other related government policies or instruments.

6 Procurement guidelines Contract disclosure Page 3 of 22 These guidelines do not address processes with respect to the act of registering or entering disclosure information on the QTenders website. For user guides and information relating to the use of the QTenders facility please refer to 2 Document management This guideline was authorised by the Director-General, Department of Public Works in April Current version: V2.0 (issued October 2013). 3 Context 3.1 Relationship to the Queensland Procurement Policy Clause 27 of the Queensland Procurement Policy contains requirements for the disclosure of procurement contracts. These guidelines provide affected agencies with information to assist in interpreting and implementing the contract disclosure requirements. 3.2 Relationship to the Right to Information Act 2009 Queensland Government s Right to Information framework contains a presumption that all documents, including contracts, are open to the public unless there are compelling reasons for non-disclosure. In the interests of openness and accountability, it is desirable that business with government agencies be conducted in a way that will allow public scrutiny. In most cases the decision about what contract information should be published is straightforward. However, it is inevitable that there will be situations in which affected agencies must apply professional judgement about the administrative release of information. Publication of contract details pursuant to clause 27of the Queensland Procurement Policy is based on the proactive release of information without applications under the Right to Information Act being necessary. In this sense, affected agencies should refer to the Right to Information Act to assist in making decisions about publication. This approach allows consistency across government through the application of a consistent disclosure framework. In complex cases, affected agencies may wish to consult the person in their agency responsible for making decisions under the Right to Information Act (Right to Information decision-maker) or the agency s legal advisors, for advice. Any release of personal information must be in accordance with the Information Privacy Act 2009 (Information Privacy Act). Resources with respect to the application of the Right to Information Act and Information Privacy Act are available at and

7 Procurement guidelines Contract disclosure Page 4 of 22 4 Disclosure methods 4.1 Selecting a method of disclosure Affected agencies are ultimately accountable for how they discharge their contract disclosure obligations. These guidelines provide the information necessary to assist affected agencies to develop systems for meeting their disclosure obligations. Such systems may be manually based or electronically enabled and may occur at different points of the procure-to-pay cycle. The guidelines provide minimum standards which should be applied regardless of disclosure method. The reporting method selected may impact on the type of information published. For example, large agencies undertaking reporting based on downloads from an information management system (for example SAP) may adopt disclosure practices for procurement valued between $10,000 and $10 million based on transactions rather than discrete contracts 1. This may result in additional reporting beyond the prescribed content of these guidelines (refer section 4.2). Transactional reporting is an acceptable form of reporting under these guidelines. Application of these guidelines should be modified where relevant to recognise transactional reporting. Such modification should not result in disclosure standards less than those set by these guidelines. For contracts where the value is equal to or exceeds $10 million, affected agencies are required to complete an QTenders contract award record to reflect basic contract details. Additional details can then be added to the record. 4.2 Optional additional disclosure Affected agencies may elect to publish more information than what is required to facilitate operational convenience (for example, publication of all purchase orders or invoices equal to or above $10,000). While affected agencies may publish information beyond the minimum requirements set out in these guidelines, appropriate systems must be in place to ensure that published information does not breach legislative or other requirements. 4.3 Validation processes In establishing processes and procedures to achieve compliance with the contract disclosure requirements of the Queensland Procurement Policy, affected agencies need to ensure that provision is made for the validation of information which will ultimately be disclosed publicly. This includes ensuring that details for each contract to be reported are accurate, meaningful (provide sufficient information for users) and do not breach legislative or other requirements. 1 Note: This would still require publication of standing offer arrangements as well as contracts formed pursuant to the standing offer arrangements.

8 Procurement guidelines Contract disclosure Page 5 of Mandatory requirement Affected agencies should ensure that agency procurement procedures for contract disclosure include validation procedures to ensure that accurate, meaningful and appropriate information is disclosed in accordance with these guidelines. 5 Information to be published on the QTenders website 5.1 Contract disclosure requirements under the Queensland Procurement Policy Under clause 27 of the Queensland Procurement Policy, affected agencies must: publish basic details of all awarded contracts and standing offer arrangements of $10,000 and over, and publish additional details of contracts and standing offer arrangements of $10 million and over. Procurement method (open, limited, selective) is only required to be disclosed for contracts of $500,000 and over. Details required to be published are listed in Figure 2 below: Figure 2 below summarises reporting obligations based on contract value. Contract Value Disclosure obligation (on the QTenders website) $0 $9,999 No reporting $10,000 $9,999,999 Basic details: Name and address of the agency procuring the contract A description of the goods or services procured The date of award or contract date The value of the contract or standing offer arrangement The name and address of the successful supplier The procurement method used (only required for contracts of $500,000 or greater) $10 million Basic details plus additional details: Identifying details (reference information for the offer and contract) Number of offers sought Evaluation criteria and weightings Form of contract Deliverables Contract milestones Contract performance management

9 Procurement guidelines Contract disclosure Page 6 of Dealing with requests for further information Should an affected agency receive a request for information beyond what is disclosed in accordance with these guidelines, the application should be dealt with under Right to Information processes established by the agency. 5.2 Mandatory requirement Affected agencies should ensure that agency procurement procedures for contract disclosure include advice for dealing with requests for information which exceeds details already published in accordance with these guidelines. 5.3 More information For more information on the practical use of the QTenders website, refer to the QTenders User Guide at 6 Contract reporting criteria Contracts are subject to publication in accordance with clause 27 of the Queensland Procurement Policy where they meet the following criteria: The contract is a reportable contract (refer to the section 6.1 of these guidelines). The contract value equals or exceeds $10, Identifying reportable contracts This guideline uses the term reportable contracts to provide clarity about what is considered to be in scope as a contract for the purposes of the disclosure obligations. Contracts and standing offer arrangements (SOAs) covered by the policy are established for the purpose of securing supply of goods, services or construction to affected agencies. At law, types of contracts include: contracts under seal (also known as deeds) simple contracts (can be oral, written, or a combination of both). The elements of legally binding contracts include: meeting of the minds (mutual consent) intention to create legal relations offer and acceptance consideration capacity performance or delivery

10 Procurement guidelines Contract disclosure Page 7 of 22 legality (i.e. the purpose of the contract is not illegal). For the purposes of these guidelines, contractual documents which satisfy the above elements and are valued at $10,000 or greater are considered to be reportable contracts, unless an exclusion applies (refer section 6.1.2). These include for example, contracts concluded by an offer and letters of acceptance and formal / written contracts. Letters of intent or memoranda of understanding do not usually form legally binding contracts, but may inadvertently take on the status of reportable contracts if all the elements of a legally binding contract exist. Standing offer arrangements, whether or not constituted by contracts under seal (deeds), are reportable contracts. Where contracts are made under SOAs, those contracts are also considered to be reportable contracts and are required to be published. Where a purchase order has been issued and a further formal contract will not be issued, the purchase order is a reportable contract. Where a purchase order is issued against an established contract which has already been disclosed, and the established contract is not an SOA, then the purchase order is not a reportable contract. Sections and below provide examples about inclusions and exclusions for the purpose of determining which contracts are reportable contracts Inclusions Examples of reportable contracts include: purchase / procurement of general goods and services purchase / procurement of contractor and consultancy services procurement of capital works (including buildings and infrastructure) establishment of SOAs and panel arrangements contracts made under SOAs (e.g. by way of a purchase order issued under the SOA) corporate card transactions (excluding payments to corporate card providers, e.g. administrative fees) Exclusions The following are not reportable contracts: procurement of real property (including interests in real property such as leases/tenancies) grants (whether in the form of a contract or a conditional gift) intragovernmental 2 transactions, including for example, procurement with commercialised government business units loans and investments 2 For the purposes of these guidelines, intragovernmental means within Queensland Government and does not include other levels of Government (ie Australian or local government) or other state / territory jurisdictions.

11 Procurement guidelines Contract disclosure Page 8 of 22 payments to employees (whether permanent or temporary) of affected agencies, including contracts issued under the Public Service Act 2008 lists of suppliers established following a pre-qualification process. An example of this is the Prequalification (PQC) system administered by the Department of Public Works sponsorship payments milestone payments to suppliers, where the contract (including total contract value) has already been disclosed payments received by affected agencies for the disposal of assets or sale of land incidental transactions in connection with a contract for goods or services not related to the contract payment (e.g. where a refund of administrative fees is necessary to correct an overcharging error) payments to corporate card providers for amounts due (ie administrative fees) periodic payments (e.g. monthly invoices) under contracts already disclosed. This would include for example, invoices in payment of utilities such as water and electricity payments established in law for which there is no discretion, for example taxation payments and payments of local government rates. Contract information must not be disclosed if it contravenes legislative obligations. This includes for example obligations under the Information Privacy Act or the Right to Information Act. This is discussed in section How to calculate contract value When calculating contract value, affected agencies should: not divide a contract into multiple parts (that is, disaggregate or split the contract) for the purpose of avoiding disclosure obligations ensure the total contract value is reflected. That is, include GST, any premiums, fees, commissions, interest or other amounts payable to the supplier under the contract. With regard to some specific types of contracts, considerations for calculating contract value include: Multi-year contracts. Where a contract is established for a term of more than one year, publish the total contract value over its initial term. That is, if a contract is for a term of three years with options of two extensions of one year each, the original disclosure will be the total value for the initial three year term only. If the extensions are exercised, the value of the contract will need to be amended at the time the option is exercised and agreed to by the supplier. This is discussed further in section 7 below. Multi-agency contracts. Upon initial establishment, whole-of-government and lead agency contracts made under the Queensland Procurement Policy, and other contracts where the parties include multiple agencies (multi-agency contracts), are to be published by the agency responsible for establishing the arrangement. The lead agency will publish an estimated value for the contract over its initial term, using for example, estimates based on information secured during the demand analysis phase and the offer process.

12 Procurement guidelines Contract disclosure Page 9 of 22 The details published in relation to lead agency and multi-agency contracts should list the agencies that are participating in the arrangement. For contracts subsequently entered into under these whole-of-government or lead agency arrangements which meet the contract reporting criteria, the agency making the procurement is responsible for publication of contract details in accordance with these guidelines. Trade-ins. In situations where a portion of the total contract value may relate to a trade-in on an existing asset, the value to be reported will include the trade-in (i.e. will represent the total contract value). The fact that some of the contract value will be met through a trade-in on an existing asset is not relevant for reporting purposes. Contracts where a total value is not determined at execution. Affected agencies should estimate the value of the contract over its initial term and ensure that the value is recorded as an estimate when reporting the contract disclosure in QTenders. For example: o A contract for maintenance is awarded, incorporating a rate of $5,000 per month over an initial period of three years with two, one year extension options. Contract value to be disclosed is $180,000 ($5,000 per month x 12 months x 3 years (initial contract term)). o A contract for an agreed schedule of rates contract is awarded. To calculate the contract value, the quantity of services to be obtained in relation to each rate over the initial contract term should be estimated. The estimates should then be multiplied by their applicable rate and added together to determine the contract value Reporting multi-stage procurements When a procurement is to be conducted in stages, and if separate contracts are awarded at each stage, affected agencies should publish each stage contract. Where one or all of the contracts equal or exceed $10 million, affected agencies should ensure that each of those contracts, when disclosed, contains a reference to the other related stage contracts. If the procurement is conducted in stages and only one contract is awarded, the original contract value is to be updated in QTenders upon stage completion. For example: Agency X plans to procure a Government building project. The project is to be undertaken using a two stage managing contractor form of contract. Initially, the contract is let to identify the fees for the managing contractor, and these fees are awarded for $4 million. The second stage of the contract for the procurement (the building works) is subsequently negotiated and accepted for a value of approximately $80 million. Within 60 days of letting the contract for the fees, Agency X discloses basic details of this contract on the QTenders site. Within 60 days of the acceptance of the contract relating to the building works, Agency X updates the QTenders record comprising basic details and includes the additional details as this contract in total exceeds $10 million Standing offer arrangements It is understood that in reporting some contracts, particularly SOAs, affected agencies may not be able to provide a precise value for the contract. Affected agencies should however, by virtue of activities undertaken during demand analysis and the offer process, be able to estimate contract value. In such cases, the estimated value should be disclosed and a note to this effect included. If it is genuinely impossible to estimate a contract value, affected agencies must state this.

13 Procurement guidelines Contract disclosure Page 10 of 22 For example: Agency X enters into an SOA for the provision of certain goods and services. Agency X is able to estimate that, over the initial term of the arrangement (three years) the agency will spend approximately $12 million under this arrangement. Within 60 days of execution of the contract (or deed) Agency X discloses basic details of the SOA on the QTenders website. This includes disclosure of the estimated value of the SOA over the initial term ($12 million) noting on QTenders that this amount is an estimate, and that the final value of the SOA will be reported within 60 days of its expiry. 6.3 Optional aggregated reporting Where it is administratively more efficient, affected agencies may decide to publish basic contract details for contracts with a value of less than $10 million in aggregated form. This would apply when the contracts being considered for aggregation are made with the same supplier and are for like goods and services. Disclosure of aggregated procurement contracts must occur at least every 60 days on the QTenders website to ensure that individual contracts are being published within the mandated time frame. For example: Agency X purchases multifunction business devices from Supplier Y on four occasions between 1 March 2011 and 15 April 2011 at the following values: $12,500; $12,500; $18,000; and $15,000. To meet disclosure requirements, Agency X can either: o o publish each purchase for Supplier Y as it occurs on the QTenders site within 60 days of contract date. publish by 30 April 2011, a single record for Supplier Y on the QTenders site, for a value of $58,000. Contracts with a value of $10 million and over are not to be reported in aggregate form a separate record is to be published for each contract over this value. Aggregated reporting is an option which can facilitate administrative efficiency. It should not be used to obscure transparency. Agencies should ensure that information reported in aggregated form is still meaningful. 6.4 Mandatory requirements Affected agencies should ensure that agency procurement procedures include contract disclosure procedures which: identify reportable contracts, taking into account prescribed inclusions and exclusions provide guidance to procurement officers for calculating contract value for different types of contracts (including for example one off contracts, contracts under SOAs, multi-stage and multi-agency contracts)

14 Procurement guidelines Contract disclosure Page 11 of 22 ensure that basic details are disclosed on the QTenders site within 60 days for reportable contracts of $10,000 and over ensure that additional details are disclosed on the QTenders site within 60 days for reportable contracts of $10 million and over. 6.5 Recommended practice It is recommended that affected agencies review the need for, and undertake where necessary, training to ensure that officers undertaking procurement activities understand how to identify and disclose reportable contracts. 7 Treatment of variations and amendments There will be situations where, during the life of a contract, variations are agreed to the contract value or other elements of the contract. This may occur for example, due to the exercise of variation clauses within the contract to reflect changes agreed with the supplier or where extension options are exercised. It is important to have a mechanism in place to provide transparency with respect to material changes, to ensure transparency for the public. Variations may relate to the value of the contract or other contract details or a combination of both. Affected agencies are required to update contract disclosure records where material variations or other amendments occur. 7.1 Variations in contract value Variations in contract value which equate to or exceed $10,000 are considered material. Where a variation is less than $10,000, it is not considered material and is therefore not reportable. Variations are cumulative over the life of the contract. Some examples include: Agency X enters into a contract for the supply of goods valued at $23,000. Basic contract details are reported on the QTenders website within 60 days. The contract is subsequently varied and the total contract value increases to $30,000. This variation is not required to be reported as it does not exceed $10,000. No further action is required by Agency X. Agency Y enters into a contract for the supply of maintenance services valued at $200,000. The contract is subsequently varied and the total contract value increases to $235,000. This variation is reportable as the variation exceeds $10,000 of the contract value initially reported. Within 60 days, Agency Y can either: access the original QTenders record and update it to reflect the variation report the variation as a new QTenders record. Managing variations to value over the life of a contract can be challenging and agencies are advised to review or establish sources of information, whether it be through supplier reporting, contract management systems or agency financial data, which allow variations in contract value to be monitored.

15 Procurement guidelines Contract disclosure Page 12 of Standing offer arrangements As noted in section 6.2.2, as the precise value of an SOA can not be known at the time of execution of the contract or deed, affected agencies are to report estimated value. Due to the nature of SOAs variations in value are unable to be tracked over the life of the SOA. For this reason, affected agencies should establish processes to ensure that the QTenders record is updated within 60 days of expiry of the SOA to reflect its final value. This requirement could be included for example in contract management plans. This does not prevent affected agencies from updating the estimated value of SOAs at any time, for example, should there be a significant revision in the estimated value due to economic circumstances like the global financial crisis Capital works construction contracts and variations Variations for capital works contracts typically occur throughout the duration of the contract involving the inclusion of planned but not specified works, the application of contingencies for agency variations to the scope of works, or to address errors and omissions in design or documentation. For major projects, variations in excess of $10,000 can number in the hundreds. Therefore, for capital works construction contracts: agencies should report the initial value of the contract upon award, including a note that variations will be taken account of upon issue of the final certificate of completion all variations should be totalled and disclosed within 60 days of the final certificate of completion being issued. Affected agencies should be prepared to publicly disclose a breakdown of variations into the above categories should it be requested, for example pursuant to a Right to Information request. 7.2 Non-value variations and other amendments For variations or changes to contracts that do not relate to contract value, agencies should apply professional judgement to determine whether, in the circumstances, the variations or changes represent a material change to the contract and should therefore, be reflected in an update to the initial information disclosed on the QTenders site. Material variations could include for example, extensions or significant changes in agreed deliverables under the contract. Some changes, for example in supplier details, may not of themselves appear to be material. However, in developing criteria for reporting variations or changes affected agencies should consider the needs of users of the information to facilitate user access and understanding. For example, a change to the disclosure record to update the supplier s details may enable stakeholders to continue to easily locate contracts. Variations or changes to SOAs are also reportable in situations where new suppliers are added to the arrangement or existing suppliers are removed. This may occur for example, if an existing supplier becomes unable to continue supply or where a significant breach of contract occurs which merits suspension or termination.

16 Procurement guidelines Contract disclosure Page 13 of Mandatory requirements Affected agencies should ensure that agency procurement procedures for contract disclosure include instructions for dealing with variations to reportable contracts. This should include: Variations to contract value where the value of the variation equals or exceeds $10,000 - publish on the QTenders website within 60 days of the variation being executed. The final value of SOAs should be published within 60 days of the expiry of the SOA. A note should be put on the initial contract disclosure record reporting the estimated value of the contract at that time, noting that an updated value will be provided within 60 days of the expiry of the SOA. Variations to capital works construction contracts should be published as a total amount on the QTenders website within 60 days of the final certificate of completion. A note should be put on the initial contract disclosure record reporting the value of the contract at that time, and that an updated value taking into account any variations, will be provided within 60 days of the final certificate of completion. Material non-value variations to contracts should be published on the QTenders website within 60 days of the variation being agreed to or the agency becoming aware of a variation. Whether or not the variation is material is at the discretion of the agency and the criteria to determine this should be recorded in agency procurement procedures. 7.4 Recommended practice It is recommended that agencies review existing practices or establish new practices which facilitate the monitoring of variations to contract value over the life of contracts. 8 Considerations for making decisions about disclosure Note: The Right to Information Act can be used to guide decision making about disclosure of contract details under the Queensland Procurement Policy. This section of the guidelines includes examples where publication of contract details may or may not be appropriate in terms of the Right to Information Act. Information is provided for consideration only and is not to be relied upon as definitive advice. Where the procurement function cannot resolve whether or not contract details should be published, advice should be sought from the agency s right to information or privacy decision maker/s, or legal advisors. 8.1 The disclosure environment It is important to note that disclosure of contract details under the Queensland Procurement Policy is not the same as formal applications under the Right to Information Act. The Right to Information Act can however guide affected agencies in making decisions about disclosure. In this respect, the principles of the Right to Information Act are embedded in these guidelines. Affected agencies should also be guided by their own administrative release policies.

17 Procurement guidelines Contract disclosure Page 14 of 22 The pro-disclosure bias operating in the Right to Information Act is supported in these guidelines. Operating under a pro-disclosure bias as per the Right to Information Act means that access must be given to a document unless it contains exempt information or its disclosure would, on balance, be contrary to the public interest. The Right to Information Act provides a right of access to documents held by an agency, subject to specific exclusions and limitations in certain circumstances. There will be genuine situations where publication of procurement contract information, in whole or in part, may not, on balance, be in the public interest or may be subject to legislative requirements. The two main pieces of legislation in this respect are the Right to Information Act and the Information Privacy Act. Schedules 1 4 of the Right to Information Act provide useful information to assist agencies in making disclosure decisions consistent with the Act. These schedules are discussed further in section 8.2 of these guidelines. The Information Privacy Act provides that if an access application is made to an agency or Minister, the agency or Minister should decide to give access to the document/s unless giving access would, on balance, be contrary to the public interest. The Information Privacy Act deals with personal information which is defined at section 12 of the Act as: Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. Personal information attaches to natural living persons only. A business entity will not in itself have personal information but individuals within the entity will. The contract will necessarily contain personal information even if this is nothing more that the name and signature of the individuals who sign the contract. Information Privacy Principle 11 Limits on Disclosure of Personal Information (IPP 11) states that generally, personal information of an individual should not be given out to anyone other than the individual themselves. IPP11 sets out a number of exceptions from this principle the most relevant to this area being IPP 11(1)(a). This states that disclosure is permissible if the individual is reasonably likely to have been aware, or to have been made aware, under IPP 2 Solicitation of personal information from individual concerned that it is the agency s usual practice to disclose that type of personal information. IPP 11(1)(a) requires the contracting agency to make the potential contractor aware that, in the event they are awarded the contract, any personal information in the contract may be disclosed A note on confidentiality clauses and commercial-in-confidence information A decision to withhold certain information or documents may be justified in certain circumstances to maintain confidentiality or privacy (including, for example, where the obligation of confidence arises as a contractual requirement, under specific legislation or otherwise at law). Confidentiality and commercial in confidence clauses should not be used as a matter of course and only included where there is strong justification for confidentiality.

18 Procurement guidelines Contract disclosure Page 15 of 22 Affected agencies should be aware that just because contract details may appear superficially to be commercially sensitive, this does not mean they should not be published. Where uncertain about the disclosure of information in accordance with these guidelines, affected agencies should seek appropriate advice, including legal advice if necessary, with respect to the Right to Information Act, the Information Privacy Act and/or other legislative requirements or requirements otherwise arising at law. Disclosure should be consistent with the Right to Information Act, Information Privacy Act and any other applicable legislation. Where information is not disclosed this must be documented in accordance with section 9 of these guidelines. 8.2 Using the Right to Information Act to guide disclosure decision making This section of the guidelines is based on relevant provisions and Schedules to the Right to Information Act. It provides considerations to assist affected agencies in making decisions about disclosure Documents to which the Right to Information Act does not apply Schedule 1 Documents to which this Act does not apply 3 of the Right to Information Act lists types of documents and reference to provisions in other legislation to which the Right to Information Act does not apply (for example, parts of the Crime and Misconduct Act 2001). Where procurement activities produce contracts related to these types of documents, advice may need to be sought to decide whether such contracts should appropriately be excluded from the contract disclosure requirements Entities to which the Right to Information Act does not apply Schedule 2 Entities to which this Act does not apply 4 of the Right to Information Act specifies entities, or particular functions of entities, to which the Right to Information Act does not apply. The Right to Information Act does not apply to certain budget sector agencies (including for example the Parliamentary Service and the Governor). However, the Right to Information Act also specifies that the Right to Information Act does not affect the operation of another Act or administrative scheme that requires the publication of information concerning Government operations. Therefore all budget sector agencies must comply with the publication requirements Exempt information Schedule 3 Exempt information 5 of the Right to Information Act contains a list of information that Parliament has considered is exempt information and would therefore be contrary to the public interest to release. Using the Right to Information Act as a guide, examples of contract details which may be considered to be excluded from the contract disclosure requirements are provided below: 3 For context refer s. 11 of the Act. 4 For context refer s. 17 of the Act. 5 For context refer s. 48 of the Act.

19 Procurement guidelines Contract disclosure Page 16 of 22 Disclosure of contract details which would found an action for breach of confidence. An example may be where the parties to the contract have expressly agreed that, in a contract for a piece of software, information about the performance of the software will remain confidential. This may be an issue for example should the description of the goods or services procured specifically reference performance details of the software. Publication of the contract details may compromise state or national security. This might include for example publication of contract details which reveal an agency s actions related to detecting, preventing or suppressing activities, whether within or outside the State, that are subversive or hostile to the interests of the State. For example, a contract for software that scans financial information for espionage activities Public interest factors Schedule 4 Factors for deciding the public interest 6 of the Right to Information Act sets out factors which help in making decisions about disclosure based on the public interest. The public interest factors favouring and against disclosure contained in this Schedule need to be weighed up in making decisions about whether on balance, disclosure is in the public interest. Matters irrelevant to deciding the public interest Part 1 Schedule 4 of the Right to Information Act lists factors which are irrelevant to deciding the public interest. The factors include: Disclosure of the information could reasonably be expected to cause embarrassment to the Government or to cause a loss of confidence in the Government. Disclosure of the information could reasonably be expected to result in the applicant misinterpreting or misunderstanding the document. Disclosure of the information could reasonably be expected to result in mischievous conduct by the applicant. 7 The person who created the document containing the information was or is of high seniority within the agency. It is not a valid justification to withhold publication of contract details on the basis of any of the above points. For example, it is not appropriate to withhold publication of contract details because the agency is concerned that an unsuccessful supplier may question the procurement process or make a complaint because they did not win the contract. Factors favouring disclosure in the public interest Part 2 Schedule 4 of the Right to Information Act lists factors which favour disclosure in the public interest. These include that: Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government s accountability. 6 Refer s. 49 of the Act, which sets out the process for applying the public interest factors. 7 Or users of the information, in the context of these guidelines.

20 Procurement guidelines Contract disclosure Page 17 of 22 Disclosure of the information could reasonably be expected to inform the community of the Government s operations including, in particular, the policies, guidelines and codes of conduct followed by the government in its dealings with members of the community. Disclosure of the information could reasonably be expected to ensure effective oversight of expenditure of public funds. Factors favouring non-disclosure in the public interest, including because of public interest harm There may be in some situations where there is a genuine risk of harm to the public interest that may be caused by the publication of certain information. Part 3 Schedule 4 of the Right to Information Act discusses factors favouring non-disclosure in the public interest. Part 4 Schedule 4 discusses factors which relate to public harm, which may be relevant in considering some disclosure decisions. Using the Right to Information Act as a guide, examples of contract details which may on balance, be contrary to the public interest to disclose include: Disclosure could reasonably be expected to prejudice the private, business, professional, commercial or financial affairs of an entity. This could include for example, publication of information which reveals per unit pricing in a specialist or limited market and directly commercially disadvantages a particular supplier, or disclosure of a private businesses confidential financial information. Disclosure of information which reveals information that has been provided subject to an obligation of confidence. This could include for example, models or prototypes. Confidentiality is also a factor if disclosure of the information could reasonably be expected to prejudice an agency s ability to obtain confidential information. Disclosure of information which could reasonably be expected to prejudice the protection of an individual s right to privacy. This could include for example, publication of personal information about an individual. Disclosure of information could reasonably be expected to cause a public interest harm because it would disclose trade secrets, or that has commercial value which would be destroyed or diminished if the information was disclosed. 8.3 Mandatory requirements Affected agencies should ensure that agency procurement procedures for contract disclosure include: a requirement for validation processes to be in place to review contract details prior to publication, to ensure that appropriate information is published within the required timeframes guidance to assist procurement officers in making decisions about disclosure of contract details instructions on how to access advice from either the Right to Information or Privacy decision makers within the agency, or the agency s legal advisors, with respect to complex disclosure matters.

21 Procurement guidelines Contract disclosure Page 18 of 22 Affected agencies should also ensure that conditions of offer and conditions of contract clearly specify that certain information will be collected and published on the QTenders website pursuant to the Queensland Procurement Policy. Terms and conditions should further clearly specify that potential suppliers indicate within their offers, where they have substantial concerns that disclosure may reveal trade secrets, information of commercial value, the purpose or results of research or other information of a confidential nature. Refer for example to the standard terms and conditions available at More information Resources with respect to the application of the Right to Information Act and Information Privacy Act are available at This includes more detailed information on the public interest balancing test. For more information on the Information Privacy Principles refer to 9 Recording reasons for non-disclosure 9.1 Overview Disclosure of information under clause 27 of the Queensland Procurement Policy and these guidelines provide transparency of procurement contracts entered into by affected agencies. These guidelines acknowledge that disclosure may not always be legally possible or in some circumstances may be contrary to the public interest (for example matters of state and national security or public safety concerns). To complete the accountability circle and provide confidence to the public, it is necessary for affected agencies to provide notification when certain contract information is not disclosed. This applies to all reportable contracts of $10,000 and above. Affected agencies have an obligation to identify separately those contracts that have been excluded as a result of a right to information or information privacy decisions. 9.2 Mandatory requirement Agency procurement procedures for contract disclosure should contain a requirement that where all or part of the contract details for individual reportable contracts of $10,000 and above are not disclosed, that reasons for this be documented. Where an element of the basic or additional details is not published, this should be documented on the QTenders record. Where no QTenders record is published the reasons why should be documented in internal agency records. Affected agencies should also implement a system that provides an effective audit trail for tracking and recording contracts that meet the contract reporting criteria, and for which either no information, or partial information, is disclosed. This could include each agency maintaining a central register to record, as a minimum: contract identification details (e.g. title and reference number)

22 Procurement guidelines Contract disclosure Page 19 of 22 the reason for and appropriate evidence of the authorised officer responsible for the nondisclosure / partial disclosure decision. 10 References and more information 1. Australian Government Department of Finance and Administration (2007) Guidance on Procurement Publishing Obligations, 2. Australian Government Office of the Australian Information Commissioner Information Privacy Principles, 3. Information Privacy Act 2009 (Qld), 4. New South Wales Government (2008) Procurement System for Construction Procurement Practice Guide, 5. Office of the Information Commissioner Queensland (2011) 6. Queensland Government (2009) Response to Integrity and Accountability in Queensland, 7. Right to Information Act 2009 (Qld), 8. Victorian Government Ensuring Openness and Probity in Victorian Government Contracts Implementation Guidelines,

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