The contract register & contract disclosures Agency Module 2b

Instructions for using this package It is expected the following modules will have been completed prior to participating in this module: Agency Module 1 – GIPA introduction Agency Module 2a – Managing the public’s new rights to government information   To make best use of this e-package, view it in slide show mode. At times there will be extra text or examples shown by highlighted and underlined text. Just click your mouse on the underlined word to see the extra information that is of interest to you. Then click on return< to go back to the original slide. There will be review questions to consider throughout the package and a quiz at the end. If your staff do not have access to the internet, you may save and post this package to your own intranet with appropriate acknowledgement to the Information and Privacy Commission. Back to menu

Purpose This module has been designed to provide more specific, practical information and support for agencies in responding to the responsibilities in the GIPA Act concerning: Government contracts with the public sector Contract disclosure provisions The GIPA Act is designed to meet community expectations for more open and transparent government. Back to menu

Menu Topic 1 – the contracts register What is the contracts register? What is a government contract? What information do we need to include? How do I work out the value of a contract for the purposes of the government contract register? When does the information need to be made available on the contracts register? What information is considered confidential? What do we do if including only some of the required information in the contracts register? Special exemptions Topic 2 – contract disclosure provisions New contract provisions What are the new contract provisions? What do we need to do? Is there any information the contractor is not required to provide access to? Do these provisions apply to all contracts entered into by an agency? Things to think about and do! Consulting with private contractors Quiz Feedback

Topic 1 Contracts Register Back to menu

What is the contracts register? The GIPA Act requires agencies (including local councils) to record and publish certain information about some contracts, when entered into with private sector bodies.   The register of government contracts is required under sections 6 and 18 of the GIPA Act as part of mandatory open access information. The details of when and how this information about government contracts with the private sector is to be recorded is set out in Part 3, Division 5 of the GIPA Act (sections 27-40 inclusive). The register must be published on a website and made public in any other way that the agency decides as part of open access information. All government agencies, except for local government authorities, state owned corporations & universities, have to make a copy of their government contracts available on the Government e-tenders website. Back to menu

What is the contracts register continued?   All government agencies, except for local government authorities, state owned corporations & universities, have to make a copy of their government contracts available on the Government e-tenders website. Having a link on your website to the e-tenders website is sufficient. You do not need to duplicate the contracts register information, provided the link remains active and the e-tenders website is easily searchable so your agency’s information can be found. Back to menu

What is a government contract? The GIPA Act defines a government contract as one:  Between the agency and private sector contractors (which is any entity or person that is not a NSW government agency) Signed after 1 January 2007 (or signed after the commencement of the GIPA Act for local councils and state owned corporations) For a value of $150,000 or more, and Which involve either: the contractor undertaking a specific project such as construction, infrastructure or property development; the contractor agreeing to provide specific goods or services (other than a contract of employment); or the transfer or lease of real property.   Back to menu

What information do we need to include? There are three different classes of government contracts and the type of information required differs according to the class. See information required in register of government contracts Back to menu

Section 28 of the GIPA Act says the value of a How do I work out the value of a contract for the purposes of the government contract register? Section 28 of the GIPA Act says the value of a contract is whichever of the following is appropriate to the kind of contract: The total estimate value of the project The total estimated value of the good or services over the term of the contract The value of the real property transferred, or The rent for the term of the lease. Back to menu

When does the information need to be made available on the contracts register? Information about contracts need to be entered in the register within 45 working days of the contact becoming effective   If the contract is subsequently varied to such a degree it affects the particulars required to be included in the contracts register, the information in the contract register is to be amended to reflect these changes within 45 working days of the variation to the contract becoming effective The information on the contracts register (including the copy of the contract if applicable) only needs to be available as open access information for whichever is longer – 20 working days or the period until: 1. the project under contract is complete; 2. the goods and services have been provided; 3. the term of the lease has expired or the property has been transferred. Back to menu

Review question “At what point is a contract deemed ‘effective’?” What aspects of the contract would you think about to make this decision? Review your ideas here! Back to menu

Review response A contract is ‘effective’ once it is enforceable against all parties. When all parties to the contract have properly signed it, and any conditions required to properly execute the contract have been met. Return<

What information is considered confidential? Under section 32 of the GIPA Act, agencies do not have to publish in the register of government contracts:   The commercial-in confidence provisions of a contract The details of unsuccessful tenders Any matter that could affect public safety or security Where there is an overriding public interest against disclosure Back to menu

What are the commercial-in-confidence provisions of a contract? Information may be considered commercial-in-confidence if it:   Would reveal the contractor’s financing arrangements, financial modelling, cost structure or profit margins Could place the contractor at a substantial commercial disadvantage in present or future dealings with the agency Would disclose any intellectual property in which the contractor has an interest Return<

What do we do if including only some of the required information in the contracts register? If you are not including some required information in the contracts register due to reasons of confidentiality, under Section 32 (2) of the GIPA Act you need to ensure the register includes:   The reasons why the information is not included A statement on whether the information is likely to be included at a future date and if so when A general description of the types of information that have not been included in the register. Back to menu

Special exemptions Special exemptions apply for the government contracts register for: Industry support contracts (for the Department of State & Regional Development) – Section 38 State owned corporations or a subsidiary of a State owned corporation (for competitive neutrality) – Section 39 Landcom (for contracts for sale of land) – Section 40 Back to menu

Contract Disclosure Provisions Topic 2 Contract Disclosure Provisions Back to menu

New contract provisions Section 121 of the GIPA Act requires agencies to include specific provisions in contracts they enter into with the private sector where the contractor is providing a service to the public on behalf of the agency.   This is so the public have the same rights to access to government information, even when the government out sources the function to the private sector. Back to menu

What are the new contract provisions? The contract between the agency and the contractor must include terms that enables the agency to have an immediate right of access to information that: Relates directly to the performance of services by the contractor Is collected by the contractor from members of the public who may receive the service Is received by the contractor from the agency to enable the contractor to provide the service The contracts to which Section 121 applies can be of any value. Back to menu

What do we need to do? It is the agency’s responsibility to ensure that these provisions are included in contracts so it has a contractual and immediate right to access certain information in the contractor’s records.   There are two template clauses available on the IPC website for agencies to insert into their private sector contracts – an access to information clause and a consultation clause. Back to menu

Is there any information the contractor is not required to provide access to? Yes, Section 121 does not require a contractor to provide access to information that:   Would reveal their financial arrangements, financial modelling, cost structure or profit margins The contractor is forbidden from disclosing under any Australian law, or Could place the contractor at commercial disadvantage in dealings with the agency. Back to menu

Do these provisions apply to all contracts entered into by an agency? No, these contract disclosure provisions will not affect all contracts. The contracts requiring information access clauses are these: Entered into after the GIPA Act commenced on 1 July 2010, and Where the private sector body is providing a service to the public on behalf of the government agency (e.g. a local council contracting a waste management service to collect, transport, process, recycle and dispose of non-hazardous residential waste materials.) Back to menu

Review question “Your Council is entering into a contract with a new waste removal company. What clauses should be included in the contract? ” Where can you find example clauses to insert into your private sector contracts? Review your ideas here! Back to menu

Review response You need to include terms so you can get an immediate right of access to information they hold that relates to the services they provide on your behalf. You may also choose to include a clause regarding your obligation to consult with the contractor before providing information relating to the contract to other parties and their rights of objection. Example templates are available on the IPC website. Return<

Things to think about and do! Identify government contacts that your agency commonly enters into with private contractors and make sure any contracts entered into on or after 1 July 2010 include provisions regarding access to information See IPC’s website for examples of template clauses that may be used in these government contracts Back to menu

Consulting with private contractors Your agency may need to consult with a private contractor when considering providing access to information. See the IPC website (templates for agencies) for various example letters for different kinds of consultation. You will need to take into account any objections the private contractor may raise when applying the public interest test to decide whether to release the information or not. The IPC website also includes a template for notice to a third party that information will be released despite objections. Back to menu

Consulting with private contractors continued Section 54 of the GIPA Act sets out: An agency’s obligations to consult with third parties before disclosing information The types of information where consultation may be necessary How to deal with an objection to disclosure The review rights of the objector or third party Back to menu

Quiz Do employment contracts need to be included in the government contracts register? Yes or No Answer Back to menu

Answer to quiz question 1 No, employment contracts do not need to be included in the government contracts register. Back to menu

Quiz Information required on the register of government contracts must be available as open access information for: 20 working days after the contract has been entered into, or The period of time the contract is current, or Whichever is the longer of a or b Answer Back to menu

Answer to quiz question 2 c) Whichever is the longer   The information on the contract register (including the copy of the contract if applicable) only needs to be available as open access information for whichever is longer of a 20 working days public access period, or the period until: the project under contract is complete; the goods and services have been provided; the term of the lease has expired or the property has been transferred. Back to menu

Quiz Are inter-agency contracts included in the contracts register? Yes or No Answer Back to menu

Answer to quiz question 3 No The definition of "government contract" is a contract between an agency and a private contractor, so under GIPA an agency is not required to keep them on their register, however, it does not restrict an agency from proactively releasing the information. Back to menu

Quiz A contract entered into by a State owned corporation on 7 October 2007 does not need to be entered into their register of government contract True or False Answer Back to menu

Answer to quiz question 4 True State owned corporations (and local councils) only need to include contracts signed after the commencement of the GIPA Act on 1 July 2010 Back to menu

Quiz My agency has a new contract for $6 million. Do we need to put a copy of the contract on the register of government contracts? Yes or No Answer Back to menu

Answer to quiz question 5 Yes As a class 3 contract (a value, or likely value, of $5 million or more) the register must include a copy of the contract (Section 31). However Section 32 does not require the inclusion of confidential information in the register. Back to menu

Feedback Thank you for completing this e-learning package. We welcome your feedback. Our resources will continue to be tailored to respond to issues and needs identified through this feedback.   If you would like to tell us what you thought of this e-learning exploring the responsibilities of government agencies under the new rights to government information legislation, please ring the IPC on 1800 IPC NSW (1800 472 769) or email us on ipcinfo@ipc.nsw.gov.au. Or open and save this evaluation form. After you have completed it, please email it back to us as an attachment to: ipcinfo@ipc.nsw.gov.au. Back to menu