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This is a Bill, not an Act. For current law, see the Acts databases.
GOVERNMENT PROCUREMENT AMENDMENT BILL 2007
2007
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Treasurer)
Government
Procurement Amendment Bill 2007
Contents
Page
2007
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Treasurer)
Government
Procurement Amendment Bill 2007
A Bill for
An Act to amend the Government Procurement Act 2001, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Government Procurement Amendment Act 2007.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
This Act amends the Government Procurement Act 2001.
Note This Act also repeals other legislation (see s 44).
substitute
An Act about procurement by the Territory and territory entities, and for
other purposes
insert
2A Meaning of procurement
In this Act:
procurement—
(a) means the process of acquiring goods, services, works or property by
purchase, lease, rental or exchange; and
(b) includes the process of disposing of goods, works or property
including by sale.
6 Meaning
of territory entitySection 3
(2)
substitute
(2) However, territory entity does not
include—
(a) The University of Canberra; or
(b) a Territory-owned corporation; or
(c) another entity established under the Corporations Act; or
(d) an entity declared under the regulations not to be a territory
entity.
insert
3A Application of Act
This Act does not apply to the grant of a licence or lease of land, or the
sale of a lease of land, under the Land (Planning and Environment) Act
1991 or the Planning and Land Act 2002.
insert
3B Responsible chief executive officer to ensure Act
complied with
The responsible chief executive officer for a territory entity must ensure
that the entity complies with this Act.
substitute
6 Functions of board
The functions of the board are—
(a) to review, and give advice to territory entities on, procurement
issues; and
(b) to review, and give advice on—
(i) procurement proposals and activities referred to the board by a
Minister or responsible chief executive officer; or
(ii) procurement proposals for procurement matters declared by the
Minister; and
(c) to review procurement proposals of territory entities in accordance
with the regulations; and
(d) to consider, advise on and, if appropriate, endorse procurement
practices and methods for use by territory entities; and
(e) to provide advice to the Minister on any issue relevant to the
procurement activities of territory entities or the operation of this Act;
and
(f) to exercise any other function given to the board under this Act or
any other Territory law.
Note A provision of a law that gives an entity (including a
person) a function also gives the entity powers necessary and convenient to
exercise the function (see Legislation Act, s 196 and dict, pt 1, def
entity).
10 Procurement
guidelinesSection 7
omit
substitute
11 Constitution of board
The board consists of the following 7 part-time members:
(a) the chairperson;
(b) the deputy chairperson;
(c) 2 public employee members;
(d) 3 non-public employee members.
12 Appointment
of membersSection 12
(2)
substitute
(2) A person appointed as chairperson, deputy chairperson, or as a public
employee member, must be a public employee.
Note Public employee is defined in the Legislation Act, dict,
pt 1.
substitute
(4) The instrument appointing, or evidencing the appointment of, a member
must state whether the member is appointed as chairperson, deputy chairperson, a
public employee member or a non-public employee member.
14 Ending
of appointment of membersSection 16
(1)
substitute
(1) The Minister must end the appointment of the chairperson, deputy
chairperson, or a public employee member, if the person stops being a public
employee.
15 Time
and place of meetingsSection 18
(2)
omit
16 Procedure
governing proceedings of boardSection 19
(2)
substitute
(2) If the chairperson is absent, the deputy chairperson
presides.
(2A) If the chairperson and deputy chairperson are absent, the member
chosen by the members present presides.
substitute
19A Board quorum
18 Section
19A (2) to (4)
substitute
(2) However, the review of a prescribed procurement matter may be carried
out at a meeting of the board consisting of—
(a) the chairperson, or the deputy chairperson, and 1 non-public employee
member; or
(b) 2 public employee members and 1 non-public employee member.
Note The board’s functions include reviewing procurement
proposals and activities referred to the board by a minister or responsible
chief executive officer, and procurement proposals of territory entities in
accordance with the regulations (see s 6 (b) and (c)).
(3) Subsection (2) does not apply to a prescribed procurement matter
if—
(a) the chairperson gives a direction that the subsection does not apply
to the matter; or
(b) a member tells the chairperson that the member objects to the matter
being reviewed by the board as constituted under the subsection.
(4) In this section:
prescribed procurement matter means any of the following that
is approved, in writing, by the chairperson for subsection (2):
(a) a procurement proposal referred to the board by a Minister or
responsible chief executive officer;
(b) a procurement activity referred to the board by a Minister or
responsible chief executive officer;
(c) a procurement proposal referred to the board in accordance with the
regulations;
(d) a procurement proposal for a procurement matter stated in a
declaration under section 22B (Minister may declare procurement matters to be
reviewed).
Note Power to make a statutory
instrument includes power to make different provision for different classes (see
Legislation Act, s 48).
procurement proposal means a proposal by a territory entity
for procurement.
insert
Part 2A Procurement
activities
22A Procurement principle—value for
money
(1) A territory entity must pursue value for money in undertaking any
procurement activity.
(2) Value for money means the best available procurement
outcome.
(3) In pursuing value for money, the entity must have regard to the
following:
(a) probity and ethical behaviour;
(b) management of risk;
(c) open and effective competition;
(d) optimising whole of life costs;
(e) anything else prescribed by regulation.
22B Minister may declare procurement matters to be
reviewed
(1) The Minister may declare the procurement matters for which a
procurement proposal must be reviewed by the board.
Examples of
declarations
1 procurement matters with the same risk profile
2 procurement matters above a stated value threshold
Note 1 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Note 2 Power to make a statutory instrument includes power to make
different provision for different classes (see Legislation Act,
s 48).
(2) A declaration under subsection (1) is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
22C Procurement proposal or activity may be referred
to board
The responsible Minister or responsible chief executive officer may refer a
procurement proposal or activity to the board for review and advice.
substitute
23 Application—pt 3
(1) To remove any doubt, this part applies in relation to a contract
entered into by—
(a) a territory entity with an excluded body; or
(b) an excluded body as an agent of a territory entity.
Example
A government department (representing the Territory) enters into a
notifiable contract with a Territory owned corporation. The government
department, but not the Territory owned corporation, is required to notify the
contract under pt 3 (Notifiable contracts).
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) In this section:
excluded body means a body that is not included as a
territory entity under section 3 (2) (Meaning of territory
entity).
21 What
is a notifiable contractSection 25
(1)
substitute
(1) For this part, a notifiable contract is a written
contract for procurement entered into by the Territory or a territory
entity.
omit
$50 000
substitute
$20 000
23 Section
25 (2), example
substitute
Example—par (a)
The consideration for a contract for the purchase of swings by the
Territory is $18 500. The contract is later amended to increase the total
consideration to $25 500. The contract, as amended, is a notifiable
contract.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
substitute
26 Meaning of notifiable
amendment
For this part, a notifiable amendment of a notifiable
contract is any amendment that, either alone or counted with another amendment
or other amendments that have not been notified in the notifiable contracts
register—
(a) increases the total consideration for the contract by at least the
greater of—
(i) 10% (or, if another percentage is prescribed under the regulations,
the other percentage) of the total consideration for the contract as already
notified in the notifiable contracts register; and
(ii) $20 000 (or, if another amount is prescribed under the regulations,
the other amount); or
(b) substantially changes the scope or nature of the goods, services,
works or property to be procured under the contract.
Example
The consideration for a contract between the Territory and Acme Pty Ltd for
the supply of road runner retention devices is $190 000.
The minimum value for notification of an amendment, or a series of
amendments, of the contract is $20 000 (ie the greater of $20 000 or
10% of the value of the contract which is $19 000). The contract is
amended on 3 occasions.
The 1st and 2nd amendments are for $15 000 each. While neither of the
amendments is separately notifiable, the total of the 2 amendments is
$30 000 and each of them is therefore a notifiable amendment. When the 2
amendments are notified on the register, the 2 amendments cannot be counted
towards any other notifiable amendment. They increase the total consideration
for the contract to $220 000.
The 3rd amendment is for $21 000. It is not a notifiable amendment
because, even though it is more than $20 000, it is less than 10% of the
total consideration for the contract as amended by all previous notifiable
amendments, ie $22 000.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
25 Contents
of registerSection 28 (1) (g)
substitute
(g) if a notifiable amendment of the contract is made—
(i) the change in—
(A) the value of the consideration to which the amendment relates;
or
(B) the scope or nature of the goods, services, works or property to which
the amendment relates; and
(ii) the value of the total consideration, or estimated total
consideration, for the contract because of the amendment; and
(iii) the date the amendment was made;
26 Public
access to material on registerSection 29
(1)
substitute
(1) The chief executive must ensure, as far as practicable, that a copy of
the material mentioned in section 28 (1) for a notifiable contract is accessible
on a web site approved by the chief executive—
(a) at all times; and
(b) for at least 2 years after the day the notifiable contract
expires.
27 Grounds
for confidentiality of informationSection
35 (3)
substitute
(3) The responsible territory entity for the contract may delegate the
entity’s functions under this section to a public employee.
(4) In this section:
personal information—see the Privacy Act 1988
(Cwlth), section 6.
public employee—see the Legislation Act, dict, pt
1.
substitute
38 Contracts and information to be given to
auditor-general
The responsible territory entity for a reportable contract must, if
requested by the auditor-general, give the auditor-general the contracts and
information the auditor-general requests.
substitute
39 Responsible territory entity’s reporting
obligations for contracts etc
(1) The responsible territory entity for a reportable contract must, for
each relevant reporting period, give the appropriate Legislative Assembly
committee either—
(a) a list of the following:
(i) the reportable contracts that became notifiable contracts during the
relevant period;
(ii) the reportable contracts that had confidential text changed during
the relevant period; or
(b) a statement that no reportable contracts became notifiable or changed
during the relevant period.
(2) The list must contain—
(a) the following information for each reportable contract mentioned in
subsection (1) (a) (i):
(i) the parties to the contract;
(ii) a brief description of what the contract is for;
(iii) the date the contract was made;
(iv) the date the contract ends;
(v) the value of the total consideration, or estimated total
consideration, for the contract; and
(b) for each reportable contract mentioned in
subsection (1) (a) (ii)—the thing that the change relates
to; and
(c) any other information prescribed by regulation.
(3) The entity may also give the committee any other information the
entity considers appropriate.
(4) The entity must give the list or statement to the committee within
21 days after the day each relevant reporting period ends.
(5) The entity must, if asked by the committee, give the committee the
information the committee requires about the decision to agree to the inclusion
of confidential text in the contract.
(6) In this section:
appropriate Legislative Assembly committee means a standing
committee of the Legislative Assembly nominated, in writing, by the
Speaker.
confidential text includes text that purports to be
confidential text.
reportable contract means a notifiable contract that contains
confidential text.
reporting period means a 6-month period ending on 31 March or
30 September.
(7) A nomination under subsection (6) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
39A Auditor-general’s reporting obligations for
contracts etc
(1) This section applies if the auditor-general requests a copy of a
reportable contract under section 38.
(2) The auditor-general must report to the appropriate Legislative
Assembly committee on whether the auditor-general is satisfied that confidential
text in the contract complies with section 35 (1) (a) or (b)
(Grounds for confidentiality of information).
(3) In this section:
appropriate Legislative Assembly committee—see section
39 (6).
confidential text includes text that purports to be
confidential text.
30 No
liability for complying with pt 3Section 42
(2), definition of reportable contract
omit
section 38 (1)
substitute
section 39 (6)
substitute
43 Application—pt 4
This part applies to a contract entered into by the Territory or a
territory entity for procurement, other than a contract—
(a) with a consideration of at least $10 000 (or, if another amount
is prescribed by regulation, the other amount); and
(b) that states that this part does not apply to it.
32 Interest
on unpaid accountsSection 45
(1)
substitute
(1) This section applies if—
(a) the Territory or a territory entity does not pay a commercial account
in full by the relevant date for the account; and
(b) the person to whom the account is payable requests, in writing, that
the Territory, or the territory entity, pay interest on the amount of the
account that remains unpaid from time to time after the payment date.
33 Reporting
of excluded contractsSection 48 (2),
definition of responsible chief executive
omit
34 Discounts
for prompt paymentsSection
49
omit
35 Responsible
chief executive to ensure Act complied
withSection 50
omit
36 Regulation-making
powerSection 52 (2)
substitute
(2) The regulations may—
(a) make provision in relation to procurement by territory entities;
and
(b) provide that prescribed things are, or are not, goods, services, works
or property for this Act; and
(c) provide that prescribed activities are, or are not, for this
Act—
(i) procurement; or
(ii) procurement activities.
insert
Part 10 Transitional
provisions
100 Procurement guideline
(1) The Government Procurement (Quotation and Tender Thresholds)
Guideline 2003 (No 1) in force under this Act, section 7 immediately before
commencement day is taken to be a regulation made under this Act, section 52
(Regulation-making power) and applies, with any necessary changes, for the
purposes of this Act.
(2) To remove any doubt and without limiting subsection (1), the guideline
mentioned in subsection (1) may be amended or repealed as if it had been made as
a regulation by the Executive under this Act, section 52.
(3) To remove any doubt, the guideline mentioned in subsection (1) is
taken—
(a) to have been notified under the Legislation Act on the day the
Government Procurement Amendment Act 2007 is notified; and
(b) to have commenced on commencement day; and
(c) not to be required to be presented to the Legislative Assembly under
the Legislation Act, section 64 (1).
(4) Subsections (1), (2) and (3) are laws to which the Legislation Act,
section 88 (Repeal does not end effect of transitional laws etc)
applies.
(5) This section expires on commencement day.
(6) In this section:
commencement day means the day the Government Procurement
Amendment Act 2007 commences.
101 Notifiable contracts
(1) This section applies to a contract made by the Territory or a
territory entity before the commencement of this section.
(2) Part 3 (Notifiable contracts) does not apply to the contract
unless—
(a) the contract was a notifiable contract when the contract was made, or
became a notifiable contract before the commencement of this section; or
(b) an amendment to the contract made after the commencement of this
section increases the total consideration for the contract by at least $20
000.
(3) Subsections (1) and (2) are laws to which the Legislation Act, section
88 (Repeal does not end effect of transitional laws etc) applies.
(4) This section expires 1 year after the day it commences.
38 Dictionary,
definitions of board and chairperson
substitute
board means the Australian Capital Territory Government
Procurement Board established under section 5.
chairperson means the chairperson of the board.
39 Dictionary,
new definitions of department and deputy
chairperson
insert
department—see the Financial Management Act
1996, dictionary.
deputy chairperson means the deputy chairperson of the
board.
40 Dictionary,
definition of member
substitute
member means—
(a) the chairperson; or
(b) the deputy chairperson; or
(c) a public employee member; or
(d) a non-public employee member.
41 Dictionary,
new definition of procurement
insert
procurement—see section 2A.
42 Dictionary,
definition of procurement guidelines
omit
43 Dictionary,
new definition of responsible chief executive
officer
insert
responsible chief executive officer means—
(a) for a department—the responsible chief executive of the
department under the Financial Management Act 1996; or
(b) for a territory authority—the chief executive officer of the
authority under the Financial Management Act 1996; or
(c) for a joint venture or trust in which the Territory or a territory
entity has a controlling interest—the responsible chief executive of the
department or territory entity that is responsible for matters most closely
related to that interest.
The following instruments are repealed:
• Government Procurement (Approved Procurement Units) Guideline
2002 (No 1) DI2002-57
• Government Procurement (Principles) Guideline 2002
DI2002-58.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2007.
2 Notification
Notified under the Legislation Act on 2007.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2007
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