15ADisclosure of government
contracts with the private sector
(1)
Within 60 days after a government contract
becomes effective, the provisions of this section in relation to the contract
must be complied with.
(2)
The following particulars of a class 1 contract
must be published:
(a)
the name and business address of the
contractor,
(b)
particulars of any related body corporate (within
the meaning of the Corporations Act 2001 of the
Commonwealth) in respect of the contractor, or any other private sector entity
in which the contractor has an interest, that will be involved in carrying out
any of the contractor’s obligations under the contract or will receive a
benefit under the contract,
(c)
the date on which the contract became effective
and the duration of the contract,
(d)
particulars of the project to be undertaken, the
goods or services to be provided or the real property to be leased or
transferred under the contract,
(e)
the estimated amount payable to the contractor
under the contract,
(f)
a description of any provisions under which the
amount payable to the contractor may be varied,
(g)
a description of any provisions with respect to
the renegotiation of the contract,
(h)
in the case of a contract arising from a
tendering process, the method of tendering and a summary of the criteria
against which the various tenders were assessed,
(i)
a description of any provisions under which it is
agreed that the contractor is to receive payment for providing operational or
maintenance services.
(3)
In addition to the particulars referred to in
subsection (2), the following particulars of a class 2 contract must be
published:
(a)
particulars of future transfers of significant
assets to the State at zero, or nominal, cost to the State, including the date
of their proposed transfer,
(b)
particulars of future transfers of significant
assets to the contractor, including the date of their proposed
transfer,
(c)
the results of any cost-benefit analysis of the
contract conducted by the agency,
(d)
the components and quantum of the public sector
comparator if used,
(e)
where relevant, a summary of information used in
the contractor’s full base case financial model (for example, the
pricing formula for tolls or usage charges),
(f)
where relevant, particulars of how risk, during
the construction and operational phases of a contract to undertake a specific
project (such as construction, infrastructure or property development), is to
be apportioned between the parties, quantified (where practicable) in net
present-value terms and specifying the major assumptions
involved,
(g)
particulars as to any significant guarantees or
undertakings between the parties, including any guarantees or undertakings
with respect to loan agreements entered into or proposed to be entered
into,
(h)
particulars of any other key elements of the
contract.
(4)
In addition to the particulars referred to in
subsections (2) and (3), a copy of a class 3 contract must be published. If
the agency concerned does not publish the contract, or publishes only some of
the provisions of the contract, because of subsection (9), the agency is to
publish:
(a)
the reasons why the contract or those provisions
have not been published, and
(b)
a statement as to whether it is intended that the
contract or those provisions will be published at a later date and, if so,
when it is likely that they will be published, and
(c)
where some but not all of the provisions of the
contract have been published, a general description of the types of provisions
that have not been published.
(5)
If a material variation is made to a contract
that would affect the particulars that are required to be published under this
section in relation to the contract, the published particulars are to be
amended to reflect the variation within 60 days after the variation becomes
effective.
(6)
If a material variation is made to a contract
that is required to be published under subsection (4), a copy of the variation
or the varied provisions is to be published within 60 days after the variation
becomes effective.
(7)
The information required to be published under
this section in relation to a contract:
(a)
is to be published on the internet website called
https://tenders.nsw.gov.au (or such other internet website authorised by the
Premier for the purposes of this section) and may be published in such other
manner as the responsible Minister for the agency may approve,
and
(b)
is to remain on that internet website:
(i)
for at least 30 days, or
(ii)
until the project to which the contract relates
is complete, the goods and services concerned have been provided under the
contract, the term of the lease has expired or the real property has been
transferred,
whichever is the greater
period.
(8)
If a person other than a member of staff of the
agency (including, for example, a party to a government contract) disagrees
with the way in which an agency has interpreted its obligations under this
section, the agency is to obtain the opinion of the Chairperson of the State
Contracts Control Board in relation to the matter.
(9)
None of the provisions of this section that
require the publication of a copy of a contract or information in relation to
a contract require the publication of:
(a)
the commercial-in-confidence provisions of a
contract, or
(b)
details of any unsuccessful tender,
or
(c)
any matter that could reasonably be expected to
affect public safety or security, or
(d)
a copy of a contract, a provision of a contract
or any other information in relation to a contract that is of such a nature
that its inclusion in a document would cause the document to be an exempt
document.
(10)
This section does not apply to or in respect of
any of the following:
(a)
a government contract entered into by or on
behalf of an agency before the commencement of this
section,
(b)
a government contract entered into by the
Department of State and Regional Development that involves the provision of
industry support.
(11)
Information is required to be published under
this section by an agency only to the extent that the agency has the
information or it is reasonably practical for it to obtain the
information.
(12)
The regulations may apply all or any of the
provisions of this section to a local authority and may modify those
provisions in their application to a local authority.
(13)
For the purposes of this section, a government
contract becomes effective:
(a)
except as provided by paragraph (b), when it is
entered into by or on behalf of the agency concerned, or
(b)
if the contract contains a provision to the
effect that one or more conditions are to be met before the obligations of the
parties under the contract are enforceable—when the condition or
conditions have been met.
(14)
In this section:
agency does not include a State
owned corporation (or its subsidiaries) as defined in the State
Owned Corporations Act 1989 or a local
authority.
class 1
contract means any government contract under which:
(a)
the total estimated value of the project,
or
(b)
the total estimated value of the goods or
services over the term of the contract, or
(c)
the value of the real property transferred,
or
(d)
the rent for the term of the
lease,
is likely to be $150,000 or more.
class 2
contract means a class 1 contract in respect of which any of
the following paragraphs applies:
(a)
there has not been a tender process, the proposed
contract has not been made publicly available and the terms and conditions of
the contract have been negotiated directly with the
contractor,
(b)
the proposed contract (whether or not made
publicly available) has been the subject of a tendering process and the terms
and conditions of the contract have been substantially negotiated with the
successful tenderer,
(c)
the obligations of one or more parties under the
contract to maintain or operate infrastructure or assets could continue for 10
years or more,
(d)
the contract involves a privately financed
project as defined by guidelines published by the Treasury (as in force from
time to time),
(e)
the contract involves a transfer of a significant
asset of the agency concerned to another party to the contract in exchange for
the transfer of an asset to the agency.
class 3
contract means a class 2 contract under which:
(a)
the total estimated value of the project,
or
(b)
the total estimated value of the goods or
services over the term of the contract, or
(c)
the value of the real property transferred,
or
(d)
the rent for the term of the
lease,
is likely to be $5,000,000 or more.
commercial-in-confidence provisions,
in relation to a government contract, means any provisions of the contract
that disclose:
(a)
the contractor’s financing arrangements,
or
(b)
the contractor’s cost structure or profit
margins, or
(c)
the contractor’s full base case financial
model, or
(d)
any intellectual property in which the contractor
has an interest, or
(e)
any matter whose disclosure would place the
contractor at a substantial commercial disadvantage in relation to other
contractors or potential contractors, whether at present or in the
future.
contractor, in relation to a
government contract entered into by an agency, means the person with whom the
agency has entered into the contract.
government contract means:
(a)
a contract between an agency and a private sector
entity under which the agency or private sector entity agrees:
(i)
to undertake a specific project (such as a
construction, infrastructure or property development project),
or
(ii)
to provide specific goods or services (such as
information technology services), or
(iii)
to transfer real property to the other party to
the contract,
(b)
a lease of real property where the parties to the
lease are an agency and a private sector entity,
but does not include a contract of
employment.
private
sector entity means any person or body (whether incorporated
or unincorporated) who or which is not an agency.
s 15A: Ins 2006 No
115, Sch 1 [1]. Am 2007 No 27, Sch 1.18 [2].