Commonwealth Procurement Rules - July 2014

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Commonwealth Procurement Rules Achieving value for money
July 2014

Department of Finance

(Business, Procurement and Asset Management)

Content

ISBN: 978-1-922096-58-6

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Foreword

I am proud to issue the Commonwealth Procurement Rules under S105B(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

The Commonwealth Procurement Rules are the keystone of the Government’s procurement policy framework . The rules enable entities to design procurement processes that are robust and transparent while permitting innovative solutions that reflect the scale, scope and risk of the desired outcome.

Officials must achieve value for money in procurement. Recognising that best value for money may be attained through aggregating buying power, the Commonwealth Procurement Rules mandate coordinated procurements, for non-corporate Commonwealth entities, and promote cooperative procurements for relevant entities.

In conducting procurements, officials are expected to appropriately manage risk. This requires considering the approach to procurement, evaluating available courses of action and recording and documenting relevant decisions. When making decisions, officials should be aware of their responsibilities to make proper use of public resources under the PGPA Act.

The Government is committed to improving access to government contracts for competitive Small and Medium Enterprises, Indigenous businesses and disability enterprises. Ensuring these suppliers are able to participate in Commonwealth procurement benefits the Australian community and economy.

The Department of Finance has developed a range of tools including guidance materials, templates, and advice to assist officials conducting procurements and those businesses tendering for Government business. This includes standardised and simple documentation for low value and low risk procurements that I encourage entities to use. Importantly, these documents reduce the cost and complexity for suppliers in selling to the Government. Another of these tools is AusTender, the Government’s procurement information system. AusTender continues to be improved, benefiting government and suppliers through its delivery of accurate and timely procurement information.

I would like to thank those that have contributed to the development of the Commonwealth Procurement Rules. Further feedback can be provided to the Department of Finance via email at haveyoursay.procurement@finance.gov.au.

I commend the Commonwealth Procurement Rules to Australian Government officials involved in procurement.

Mathias Cormann

Minister for Finance

Contents

1. Summary of Commonwealth Procurement Rules

2. Procurement framework

3. How to use the Commonwealth Procurement Rules

DIVISION 1 - RULES FOR ALL PROCUREMENTS

4. Value for money

5. Encouraging competition

6. Efficient, effective, economical and ethical procurement

7. Accountability and transparency in procurement

8. Procurement risk

9. Procurement method

DIVISION 2 - ADDITIONAL RULES FOR PROCUREMENTS AT OR ABOVE THE RELEVANT PROCUREMENT THRESHOLD

10. Additional rules

APPENDICES AND INDEX

Appendix A: Exemptions from Division 2

Appendix B: Definitions

Index

1. Summary of Commonwealth Procurement Rules

1.1 Rules with which entities must comply when undertaking procurement are denoted by the term ‘must’ and have been bolded throughout the Commonwealth Procurement Rules (CPRs). Figures 1 and 2 highlight, the location of these rules within the CPRs.

Figure 1: Division 1 - Rules for all procurements

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Figure 2: Division 2 – Additional rules

2. Procurement framework

2.1 The Commonwealth Procurement Rules (CPRs) are issued by the Minister for Finance (Finance Minister) under section 105B(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

2.2 Officials from non-corporate Commonwealth entities and prescribed corporate Commonwealth entities listed in section 30 of the Public Governance, Performance and Accountability Rule 2014 must comply with the CPRs when performing duties related to procurement. These entities will collectively be referred to as relevant entities throughout the CPRs.

2.3 Rules that must be complied with in undertaking procurement are denoted by the term ‘must’. Non-corporate Commonwealth entities must report non-compliance with the rules of the CPRs through the Commonwealth’s compliance reporting process. The term ‘should’ indicates good practice.

2.4 The CPRs are the core of the procurement framework, which also includes:

web-based guidance, developed by the Department of Finance (Finance) to assist agencies to implement the procurement framework; and
Resource Management Guides, which advise of key changes and developments in the procurement framework.

2.5 An Accountable Authority may use Accountable Authority Instructions to set out entity-specific operational rules to ensure compliance with the rules of the procurement framework.

2.6 Nothing in any part of these CPRs prevents an official from applying measures determined by their Accountable Authority to be necessary for the maintenance or restoration of international peace and security, to protect human health, for the protection of essential security interests, or to protect national treasures of artistic, historic or archaeological value.

Procurement

2.7 Procurement encompasses the whole process of procuring goods and services. It begins when a need has been identified and a decision has been made on the procurement requirement. Procurement continues through the processes of risk assessment, seeking and evaluating alternative solutions, the awarding of a contract, the delivery of and payment for the goods and services and, where relevant, the ongoing management of the contract and consideration of disposal of goods.

2.8 In addition to the acquisition of goods and services by a relevant entity for its own use, procurement includes the acquisition of goods and services on behalf of another relevant entity or a third party.

2.9 Procurement does not include:

grants (whether in the form of a contract, conditional gift or deed);[1]
investments (or divestments);
sales by tender;
loans;
procurement of goods and services for resale or procurement of goods and services used in the production of goods for resale;
any property right not acquired through the expenditure of relevant money (for example, a right to pursue a legal claim for negligence);
statutory appointments;
appointments made by a Minister using the executive power (for example, the appointment of a person to an advisory board); or
the engagement of employees, such as under the Public Service Act 1999, the Parliamentary Services Act 1999, a relevant entity’s enabling legislation or the common law concept of employment.

Resource management framework

2.10 Relevant entities and officials operate in an environment of legislation and Commonwealth policy. Within that broad context, the resource management framework consists of the legislation and policy governing the management of the Commonwealth’s resources. Figure 3 sets out the main elements of this environment related to procurement.

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Figure 3: Legislation and policy

2.11 The procurement framework is a subset of the resource management framework related to the procurement of goods and services.

2.12 Section 16 of the PGPA Act outlines an Accountable Authority’s duty to establish appropriate internal control systems for their relevant entity. The CPRs provide the necessary framework for Accountable Authorities when issuing Accountable Authority Instructions and operational requirements in relation to procurement. In the area of procurement, an Accountable Authority should provide a mechanism to:

apply the principles and requirements of the resource management and procurement frameworks, focusing on the relevant entity’s operations; and
provide primary operational instructions to relevant entity officials in carrying out their duties related to procurement, in a way that is tailored to a relevant entity’s particular circumstances and needs.

2.13 Non-compliance with the requirements of the resource management framework, including in relation to procurement, may attract a range of criminal, civil or administrative remedies including under the Public Service Act 1999 and the Crimes Act 1914.

International obligations

2.14 Australia is party to a range of bilateral free trade arrangements. These arrangements are implemented domestically by legislation and/or Commonwealth policy. Relevant international obligations have been incorporated in these CPRs. Therefore, an official undertaking a procurement is not required to refer directly to international agreements.

3. How to use the Commonwealth Procurement Rules

3.1 The CPRs set out the rules that officials must comply with when they procure goods and services. The CPRs also indicate good practice. The CPRs have been designed to provide officials with flexibility in developing and implementing procurement processes that reflect their relevant entity’s needs.

3.2 Achieving value for money is the core rule of the CPRs. This requires the consideration of the financial and non-financial costs and benefits associated with procurement.

3.3 Further information and guidance on applying the CPRs are available on Finance’s procurement policy website at www.finance.gov.au/procurement.

3.4 Relevant entities may have additional rules, guidance, templates or tools that apply when conducting procurements.

Compliance with the two divisions of the CPRs

3.5 Officials of non-corporate Commonwealth entities must comply with the ‘rules for all procurements’ listed in Division 1, regardless of the procurement value. Officials must also comply with the ‘additional rules’ listed in Division 2 when the estimated value of the procurement is at or above the relevant procurement threshold and when an Appendix A exemption has not been utilised.

3.6 Officials of corporate Commonwealth entities[2] prescribed in section 30 of the Public Governance, Performance and Accountability Rule 2014 as having to comply with the CPRs must comply with the ‘rules for all procurements’ listed in Division 1 and the ‘additional rules’ listed in Division 2 when the expected value of the procurement is at or above the relevant procurement threshold and when an Appendix A exemption has not been utilised.

Using an Appendix A exemption

3.7 When an Appendix A exemption applies, and the relevant entity chooses to utilise the exemption, the procurement is exempt from the additional rules for procurements at or above the relevant procurement threshold (Division 2) but must still comply with the rules for all procurements (Division 1).

Division 1

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4. Value for money

Considering value for money

4.1 A thorough consideration of value for money begins by officials clearly understanding and expressing the goals and purpose of the procurement.

4.2 When a business requirement arises, officials should consider whether a procurement will deliver the best value for money. It is important to take into consideration:

stakeholder input;
the scale and scope of the business requirement;
the relevant entity’s resourcing and budget;
obligations and opportunities under other existing arrangements;
relevant Commonwealth policies; and
the market’s capacity to competitively respond to a procurement.

4.3 When a relevant entity determines that procurement represents the best value for money, these considerations will inform the development and implementation of the procurement.

Achieving value for money

4.4 Achieving value for money is the core rule of the CPRs. Officials responsible for a procurement must be satisfied, after reasonable enquires, that the procurement achieves a value for money outcome. Procurements should:

encourage competition and be non-discriminatory;
use public resources in an efficient, effective, economical and ethical manner that is not inconsistent with the policies of the Commonwealth;[3]
facilitate accountable and transparent decision making;
encourage appropriate engagement with risk; and
be commensurate with the scale and scope of the business requirement.

4.5 When conducting a procurement, an official must consider the relevant financial and non-financial costs and benefits of each submission including, but not limited to:

the quality of the goods and services;
fitness for purpose of the proposal;
the potential supplier’s relevant experience and performance history;
flexibility of the proposal (including innovation and adaptability over the lifecycle of the procurement);
environmental sustainability of the proposed goods and services (such as energy efficiency and environmental impact); and
whole-of-life costs.

4.6 Whole-of-life costs could include:

the initial purchase price of the goods and services;
maintenance costs;
transition out costs;
licensing costs (when applicable);
the cost of additional features procured after the initial procurement;
consumable costs; and
disposal costs.

Procurement-connected policies

4.7 Procurement-connected policies are policies of the Commonwealth for which procurement has been identified as a means of delivery. To assist relevant entities in complying with policies of the Commonwealth, Finance maintains a list of procurement-connected policies, which can be found at www.finance.gov.au/procurement.

4.8 Many of these procurement-connected policies are the responsibility of entities other than Finance. The relevant policy-owning entity is responsible for administering, reviewing and providing information on the policy as required.

Coordinated procurement

4.9 Coordinated procurement refers to whole-of-government arrangements for procuring goods and services. A list of coordinated procurements can be found at www.finance.gov.au/procurement.

4.10 Non-corporate Commonwealth entities must use coordinated procurements. Exemptions from coordinated procurements can only be granted jointly by the requesting non-corporate Commonwealth entity’s Portfolio Minister and the Finance Minister when a non-corporate Commonwealth entity can demonstrate a special need for an alternative arrangement.[4] Prescribed corporate Commonwealth entities may opt-in to coordinated procurements.

Cooperative procurement

4.11 Cooperative procurements involve more than one relevant entity as the buyer. Relevant entities can procure cooperatively by approaching the market together or by joining an existing contract of another relevant entity.

4.12 If a relevant entity intends to join an existing contract of another relevant entity, the initial request documentation and the contract must have already specified potential use by other relevant entities.

4.13 Relevant entities joining an existing contract must ensure that:

value for money is achieved;
the goods and services being procured are the same as provided for within the contract; and
the terms and conditions of the contract are not being materially altered.

Contract end dates

4.14 When a contract does not specify an end date it must allow for periodic review and subsequent termination of the contract by the relevant entity, if the relevant entity determines that it does not continue to represent value for money.

Third-party procurement

4.15 Procurement by third parties on behalf of a relevant entity can be a valid way to procure goods and services, provided it achieves value for money. Relevant entities must not use third-party arrangements to avoid the rules in the CPRs when procuring goods and services.

5. Encouraging competition

5.1 Competition is a key element of the Australian Government’s procurement framework. Effective competition requires non-discrimination and the use of competitive procurement processes.

5.2 Participation in procurement imposes costs on relevant entities and potential suppliers. Those costs should be considered when designing a process that is commensurate with the scale, scope and risk of the proposed procurement.

Non-discrimination

5.3 The Australian Government’s procurement framework is non-discriminatory. All potential suppliers to government must, subject to these CPRs, be treated equitably based on their commercial, legal, technical and financial abilities and not be discriminated against due to their size, degree of foreign affiliation or ownership, location, or the origin of their goods and services.

Small and Medium Enterprises

5.4 To ensure that Small and Medium Enterprises (SMEs) can engage in fair competition for Australian Government business, officials should apply procurement practices that do not unfairly discriminate against SMEs and provide appropriate opportunities for SMEs to compete. Officials should consider, in the context of value for money:

the benefits of doing business with competitive SMEs when specifying requirements and evaluating value for money;
barriers to entry, such as costly preparation of submissions, that may prevent SMEs from competing;
SMEs’ capabilities and their commitment to local or regional markets; and
the potential benefits of having a larger, more competitive supplier base.

5.5 The Australian Government is committed to non-corporate Commonwealth entities sourcing at least 10 per cent of procurement by value from SMEs.

6. Efficient, effective, economical and ethical procurement

6.1 The Australian Government promotes the proper use and management of public resources. Proper means efficient, effective, economical and ethical. For non-corporate Commonwealth entities, this would also include being not inconsistent with the policies of the Commonwealth.[5]

6.2 Efficient relates to the achievement of the maximum value for the resources used. In procurement, it includes the selection of a procurement method that is the most appropriate for the procurement activity, given the scale, scope and risk of the procurement.

6.3 Effective relates to the extent to which intended outcomes or results are achieved. It concerns the immediate characteristics, especially price, quality and quantity, and the degree to which these contribute to specified outcomes.

6.4 Economical relates to minimising cost. It emphasises the requirement to avoid waste and sharpens the focus on the level of resources that the Commonwealth applies to achieve outcomes.

6.5 Ethical relates to honesty, integrity, probity, diligence, fairness and consistency. Ethical behaviour identifies and manages conflicts of interests, and does not make improper use of an individual’s position.

Ethical behaviour

6.6 In particular, officials undertaking procurement must act ethically throughout the procurement. Ethical behaviour includes:

recognising and dealing with actual, potential and perceived conflicts of interest;
dealing with potential suppliers, tenderers and suppliers equitably, including by
seeking appropriate internal or external advice when probity issues arise, and
not accepting inappropriate gifts or hospitality;
carefully considering the use of public resources; and
complying with all directions, including relevant entity requirements, in relation to gifts or hospitality, the Australian Privacy Principles of the Privacy Act 1988 and the security provisions of the Crimes Act 1914.

6.7 Relevant entities must not seek to benefit from supplier practices that may be dishonest, unethical or unsafe. This includes not entering into contracts with tenderers who have had a judicial decision against them (not including decisions under appeal) relating to employee entitlements and who have not satisfied any resulting order. Officials should seek declarations from all tenderers confirming that they have no such unsettled orders against them.

6.8 If a complaint about procurement is received, relevant entities must apply equitable and non-discriminatory complaint-handling procedures. Relevant entities should aim to manage the complaint process internally, when possible, through communication and conciliation.

7. Accountability and transparency in procurement

7.1 The Australian Government is committed to ensuring accountability and transparency in its procurement activities. Accountability means that officials are responsible for the actions and decisions that they take in relation to procurement and for the resulting outcomes. Transparency involves relevant entities taking steps to enable appropriate scrutiny of their procurement activity. The fundamental elements of accountability and transparency in procurement are outlined in this section.

Records

7.2 Officials must maintain for each procurement a level of documentation commensurate with the scale, scope and risk of the procurement. Documentation should provide accurate and concise information on:

the requirement for the procurement;
the process that was followed;
how value for money was considered and achieved;
relevant approvals; and
relevant decisions and the basis of those decisions.

7.3 Relevant entities must have access to evidence of agreements with suppliers, in the form of one or a combination of the following documents: a written contract, a purchase order, an invoice or a receipt.

7.4 Documentation must be retained in accordance with the Archives Act 1983.

AusTender

7.5 AusTender,[6] the Australian Government’s procurement information system, is a centralised web-based facility that publishes a range of information, including relevant entities’ planned procurements, open tenders and contracts awarded. It also supports secure electronic tendering to deliver integrity and efficiency for relevant entities and potential suppliers.

7.6 AusTender is the system used to enable relevant entities to meet their publishing obligations under the CPRs. It also enables relevant entities to monitor and review their AusTender-based procurements, including approaches to market, publication of contracts and multi-use lists, and amendments to contracts and multi-use lists.

Annual procurement plans

7.7 In order to draw the market’s early attention to potential procurement opportunities, each relevant entity must maintain on AusTender a current procurement plan containing a short strategic procurement outlook.

7.8 The annual procurement plan should include the subject matter of any significant planned procurement and the estimated publication date of the approach to market. Relevant entities should update their plans regularly throughout the year.

Notifications to the market

7.9 Relevant entities must use AusTender to publish open tenders and, to the extent practicable, to make relevant request documentation available. Relevant entities may use AusTender to publish prequalified tender or limited tender approaches to market and make relevant request documentation available.

7.10 Relevant entities should include relevant evaluation criteria in request documentation to enable the proper identification, assessment and comparison of submissions on a fair, common and appropriately transparent basis.

7.11 In any additional notification through other avenues, such as printed media, the details selected for inclusion in the notification must be the same as those published on AusTender.

7.12 When a relevant entity provides request documentation or any other document, already published on AusTender in any other form (for example, a printed version) that documentation must be the same as that published on AusTender.

7.13 A notice of a multi-use list must be published on AusTender. When a multi-use list will be updated at any time, the notice must identify that applications will be accepted during the entire period of the multi-use list’s operation. Alternatively, when a multi-use list will be updated only at specific times and according to set deadlines for application, the notice must invite applications at least once every 12 months.

Providing information

7.14 Officials must, on request, promptly provide, to eligible potential suppliers, documentation that includes all information necessary to permit the potential supplier to prepare and lodge submissions.

7.15 Following the rejection of a submission or the award of a contract, officials must promptly inform affected tenderers of the decision. Debriefings must be made available, on request, to unsuccessful tenderers outlining the reasons the submission was unsuccessful. Debriefings must also be made available, on request, to the successful supplier(s).

Reporting arrangements

7.16 Relevant entities must report contracts and amendments on AusTender within 42 days of entering into (or amending) a contract if they are valued at or above the reporting threshold.

7.17 The reporting thresholds (including GST) are:

$10,000 for non-corporate Commonwealth entities; and
for prescribed corporate Commonwealth entities ,
$400,000 for procurements other than procurement of construction services, or
$7.5 million for procurement of construction services.

7.18 Regardless of value, standing offers must be reported on AusTender within 42 days of the relevant entity entering into or amending such arrangements. Relevant details in the standing offer notice, such as supplier details and the names of other relevant entities participating in the arrangement, must be reported and kept current.

Subcontractors

7.19 Relevant entities must make available on request, the names of any subcontractor(s) engaged by a contractor in respect of a contract.

Relevant entities must require contractors to agree to the public disclosure of the names of any subcontractors engaged to perform services in relation to a contract.
Contractors must be required to inform relevant subcontractors that the subcontractor’s participation in fulfilling a contract may be publicly disclosed.

Treatment of confidential information

7.20 When conducting a procurement and awarding a contract, relevant entities should take appropriate steps to protect the Commonwealth’s confidential information. This includes observing legal obligations, such as those under the Privacy Act 1988, and statutory secrecy provisions.

7.21 Submissions must be treated as confidential before and after the award of a contract. Once a contract has been awarded the terms of the contract, including parts of the contract drawn from the supplier’s submission, are not confidential unless the relevant entity has determined and identified in the contract that specific information is to be kept confidential in accordance with the guidance on Confidentiality Throughout the Procurement Cycle at www.finance.gov.au/procurement.

7.22 The need to maintain the confidentiality of information should always be balanced against the public accountability and transparency requirements of the Australian Government. It is therefore important for officials to plan for, and facilitate, appropriate disclosure of procurement information. In particular, officials should:

include provisions in request documentation and contracts that alert potential suppliers to the public accountability requirements of the Australian Government, including disclosure to the Parliament and its committees;
when relevant, include a provision in contracts to enable the Australian National Audit Office to access contractors’ records and premises to carry out appropriate audits; and
consider, on a case-by-case basis, any request by a supplier for material to be treated confidentially after the award of a contract, and enter into commitments to maintain confidentiality only when such commitments are appropriate.

7.23 When confidential information is required to be disclosed, for example following a request from a parliamentary committee, reasonable notice in writing must be given to the party from whom the information originated.

Other obligations

7.24 Other reporting and disclosure obligations apply to officials undertaking procurement, including:

disclosure of procurement information for relevant entity annual reporting purposes;
disclosure of non-compliance with the CPRs through the Commonwealth’s compliance reporting process;
disclosure to the Parliament and its committees, as appropriate, in line with the Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters;
disclosure of information consistent with the Freedom of Information Act 1982; and
disclosure of discoverable information that is relevant to a case before a court.

8. Procurement risk

8.1 Risk management comprises the activities and actions taken by a relevant entity to ensure that it is mindful of the risks it faces, that it makes informed decisions in managing these risks, and identifies and harnesses potential opportunities.[7]

8.2 Relevant entities must establish processes for the identification, analysis, allocation and treatment of risk when conducting a procurement. The effort directed to risk assessment and management should be commensurate with the scale, scope and risk of the procurement. Relevant entities should consider risks and their potential impact when making decisions relating to value for money assessments, approvals of proposals to spend relevant money and the terms of the contract.

8.3 As a general principle, risks should be borne by the party best placed to manage them; that is, relevant entities should generally not accept risk which another party is better placed to manage. Similarly, when a relevant entity is best placed to manage a particular risk, it should not seek to inappropriately transfer that risk to the supplier.

9. Procurement method

9.1 Australian Government procurement is conducted by one of three methods open tender, prequalified tender or limited tender. These methods are detailed in this section.

Requirement to estimate value of procurement

9.2 The expected value of a procurement must be estimated before a decision on the procurement method is made. The expected value is the maximum value (including GST) of the proposed contract, including options, extensions, renewals or other mechanisms that may be executed over the life of the contract.

9.3 The maximum value of the goods and services being procured must include:

all forms of remuneration, including any premiums, fees, commissions, interest, allowances and other revenue streams that may be provided for in the proposed contract;
the value of the goods and services being procured, including the value of any options in the proposed contract; and
any taxes or charges.

9.4 When a procurement is to be conducted in multiple parts with contracts awarded either at the same time or over a period of time, with one or more suppliers, the expected value of the goods and services being procured must include the maximum value of all of the contracts.

9.5 A procurement must not be divided into separate parts solely for the purpose of avoiding a relevant procurement threshold.

9.6 When the maximum value of a procurement over its entire duration cannot be estimated the procurement must be treated as being valued above the relevant procurement threshold.

Procurement thresholds

9.7 When the expected value of a procurement is at or above the relevant procurement threshold and an exemption in Appendix A is not utilised, the rules in Division 2 must also be followed. The procurement thresholds (including GST) are:

for non-corporate Commonwealth entities, other than for procurements of construction services, the procurement threshold is $80,000;
for prescribed corporate Commonwealth entities, other than for procurements of construction services, the procurement threshold is $400,000; or
for procurements of construction services by relevant entities, the procurement threshold is $7.5 million.

Three procurement methods

Method 1 – Open tender

9.8 Open tender involves publishing an open approach to market and inviting submissions.

Method 2 – Prequalified tender

9.9 Prequalified tender involves publishing an approach to market inviting submissions from all potential suppliers on:

a shortlist of potential suppliers that responded to an initial open approach to market on AusTender;
a list of potential suppliers selected from a multi-use list established through an open approach to market; or
a list of all potential suppliers that have been granted a specific licence or comply with a legal requirement, when the licence or compliance with the legal requirement is essential to the conduct of the procurement.

Method 3 – Limited tender

9.10 Limited tender involves a relevant entity approaching one or more potential suppliers to make submissions, when the process does not meet the rules for open tender or prequalified tender.

9.11 For procurements at or above the relevant procurement threshold, limited tender can only be conducted in accordance with paragraph 10.3, or when a procurement is exempt as detailed in Appendix A.

Procurement from existing arrangements

Procurements from standing offers

9.12 Procurements from an existing standing offer must comply with Division 1.

9.13 Officials should report the original procurement method used to establish the standing offer when they report procurements from standing offers.

Division 2

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10. Additional rules

10.1 The rules set out in Division 2 are additional to those in Division 1 and must not be interpreted or applied in a manner that diminishes or negates Division 1.

10.2 A procurement, except a procurement that is specifically exempt in accordance with Appendix A, is subject to the rules contained in Division 2 if the expected value of the procurement is at, or above, the relevant procurement threshold.

Conditions for limited tender

10.3 A relevant entity must only conduct a procurement at or above the relevant procurement threshold through limited tender in the following circumstances:

when, in response to an approach to market
no submissions, or no submissions that represented value for money, were received,
no submissions that met the minimum content and format requirements for submission as stated in the request documentation were received, or
no tenderers satisfied the conditions for participation,

and the relevant entity does not substantially modify the essential requirements of the procurement; or

b. when, for reasons of extreme urgency brought about by events unforeseen by the relevant entity, the goods and services could not be obtained in time under open tender or prequalified tender; or

c. for procurements made under exceptionally advantageous conditions that arise only in the very short term, such as from unusual disposals, unsolicited innovative proposals, liquidation, bankruptcy, or receivership, and which are not routine procurement from regular suppliers; or

d. when the goods and services can be supplied only by a particular business and there is no reasonable alternative or substitute for one of the following reasons

the requirement is for works of art,
to protect patents, copyrights, or other exclusive rights, or proprietary information, or
due to an absence of competition for technical reasons; or
for additional deliveries of goods and services by the original supplier or authorised representative that are intended either as replacement parts, extensions, or continuing services for existing equipment, software, services, or installations, when a change of supplier would compel the relevant entity to procure goods and services that do not meet requirements for compatibility with existing equipment or services; or
for procurements in a commodity market; or
when a relevant entity procures a prototype or a first good or service that is intended for limited trial or that is developed at the relevant entity’s request in the course of, and for, a particular contract for research, experiment, study, or original development; or
in the case of a contract awarded to the winner of a design contest, provided that
the contest has been organised in a manner that is consistent with these CPRs, and
the contest is judged by an independent jury with a view to a design contract being awarded to the winner; or
for new construction services consisting of the repetition of similar construction services that conform to a basic project for which an initial contract was awarded through an open tender or prequalified tender, and when the initial approach to market indicated that limited tender might be used for those subsequent construction services.

10.4 A procurement at or above the relevant procurement threshold conducted by limited tender is not required to meet the rules in paragraphs 10.6 -10.12 (Request documentation), 10.17-10.27 (Minimum time limits), or 10.31 (Awarding contracts).

10.5 In accordance with the general rules for accountability set out in these CPRs, for each contract awarded through limited tender, an official must prepare and appropriately file within the relevant entity’s records management system a written report that includes:

the value and type of goods and services procured;
a statement indicating the circumstances and conditions that justified the use of limited tender; and
a record demonstrating how the procurement represented value for money in the circumstances.

Request documentation

10.6 Request documentation must include a complete description of:

the procurement, including the nature, scope and, when known, the quantity of the goods and services to be procured and any requirements to be fulfilled, including any technical specifications, conformity certification, plans, drawings, or instructional materials;
any conditions for participation, including any financial guarantees, information and documents that potential suppliers are required to submit;
any minimum content and format requirements;
evaluation criteria to be considered in assessing submissions; and
any other terms or conditions relevant to the evaluation of submissions.

10.7 However, relevant entities are not obligated to release confidential information, information sensitive to essential security or information that may impede competition.

10.8 Relevant entities must ensure that potential suppliers and tenderers are dealt with fairly and in a non-discriminatory manner when providing information leading to, or following, an approach to market. Relevant entities must promptly reply to any reasonable request from a potential supplier for relevant information about a procurement, and when responding to such enquiries must avoid a potential supplier, or group of potential suppliers, gaining an unfair advantage in a competitive procurement process.

Specifications

10.9 In prescribing specifications for goods and services, a relevant entity must:

not use specifications or prescribe any conformity assessment procedure in order to create an unnecessary obstacle to trade;
when possible, set out the specifications in terms of performance and functional requirements; and
base technical specifications on international standards, when they exist and apply to the relevant procurement, except when the use of international standards would fail to meet the relevant entity’s requirements or would impose greater burdens than the use of recognised Australian standards.

10.10 A specification must not require or refer to a particular trademark or trade name, patent, copyright, design or type, specific origin, producer, or supplier, unless there is no other sufficiently precise or intelligible way of describing the requirement. In an exceptional circumstance when this type of specification is used, words such as ‘or equivalent’ must be included in the specification.

10.11 A relevant entity may conduct market research and other activities in developing specifications for a particular procurement and allow a supplier that has been engaged to provide those services to participate in procurements related to those services. Relevant entities must ensure that such a supplier will not have an unfair advantage over other potential suppliers.

Modification of evaluation criteria or specifications

10.12 When, during the course of a procurement, a relevant entity modifies the evaluation criteria or specifications set out in an approach to market or in request documentation, or amends or reissues an approach to market or request documentation, it must transmit all modifications or amended or reissued documents:

to all the potential suppliers that are participating at the time the information is amended, if known, and, in all other cases, in the same manner as the original information; and
in adequate time to allow potential suppliers to modify and re-lodge their submissions, if required.

Conditions for participation

10.13 Relevant entities may specify conditions for participation that potential suppliers must be able to demonstrate compliance with in order to participate in a procurement or, if applicable, class of procurement. Conditions for participation must be limited to those that will ensure that a potential supplier has the legal, commercial, technical and financial abilities to fulfil the requirements of the procurement.

10.14 Conditions for participation may require relevant prior experience when that experience is essential to meet the requirements of the procurement but must not specify, as a requirement, that potential suppliers have previous experience with the relevant entity or with the Australian Government or in a particular location.

10.15 In assessing whether a tenderer satisfies the conditions for participation, a relevant entity must:

evaluate financial, commercial, and technical abilities on the basis of the tenderer’s business activities, wherever they have occurred; and
base its determination solely on the conditions for participation that the relevant entity has specified in either the approach to market or the request documentation.

10.16 A relevant entity may exclude a tenderer on grounds such as bankruptcy, insolvency, false declarations, or significant deficiencies in performance of any substantive requirement or obligation under a prior contract.

Minimum time limits

10.17 Potential suppliers must be required to lodge submissions in accordance with a common deadline.

10.18 Relevant entities must provide sufficient time for potential suppliers to prepare and lodge submissions in response to an approach to market. Time limits discussed in this section represent minimum time limits to lodge submissions and should not be treated as default time limits.

10.19 The time limit for potential suppliers to lodge a submission must be at least 25 days from the date and time that a relevant entity publishes an approach to market for an open tender or a prequalified tender, except under the following circumstances when a relevant entity may establish a time limit that is less than 25 days but no less than 10 days:

when the relevant entity has published details of the procurement in an annual procurement plan on AusTender, at least 30 days and not more than 12 months in advance, and those details include a description of the procurement, the timing of the approach to market and the procedure to obtain request documentation;
when the relevant entity procures commercial goods and services;
in the case of second or subsequent approaches to the market for recurring procurements; or
when a genuine state of urgency renders the normal time limit impracticable.

10.20 When a relevant entity has not electronically issued an approach to market, the 25 day period referred to in the preceding paragraph must be extended to 30 days.

10.21 The time limits stated above apply to each approach to market. That is, a single approach to market must comply with the time limits or, in the case of a multi-stage procurement (such as inviting expressions of interest followed by a prequalified tender), each approach to market must comply with the time limits stated in paragraph 10.19.

10.22 When a relevant entity intends to specify conditions for participation that require potential suppliers to undertake a separate registration procedure, the relevant entity must state the time limit for responding to the registration in the approach to market. Any such conditions for participation must be published in sufficient time to enable all potential suppliers to complete the registration procedures within the time limit for the procurement.

10.23 When a relevant entity extends the time limit for registration or submission, or when negotiations are terminated and potential suppliers are permitted to lodge new submissions, the new time limit must apply equitably.

Late submissions

10.24 Late submissions must not be accepted unless the submission is late as a consequence of mishandling by the relevant entity. A relevant entity must not penalise any potential supplier whose submission is received after the specified deadline if the delay is due solely to mishandling by the relevant entity.

10.25 Relevant entity mishandling does not include mishandling by a courier or mail service provider engaged by a potential supplier to deliver a submission. It is the responsibility of the potential supplier to ensure that the submission is dispatched in sufficient time for it to be received by the relevant entity by the deadline.

10.26 Late submissions should be returned unopened to the potential supplier who submitted them, to:

ensure that they are not evaluated or compared with submissions which were submitted by the due time and date;
demonstrate to other tenderers that the process for receiving submissions is fair and impartial; and
eliminate scope for any suggestion that the submission was rejected for any reason other than because it was late.

10.27 It may be necessary to open a late submission if there is no return address or any indication of which approach to market the submission relates. When a submission has been opened under such circumstances the potential supplier should be advised that the submission was rejected due to lateness and advised of the reason it was opened.

Receipt and opening of submissions

10.28 Procedures to receive and open submissions must guarantee fairness and impartiality and must ensure that submissions are treated in confidence.

10.29 When a relevant entity provides tenderers with opportunities to correct unintentional errors of form between the opening of submissions and any decision, the relevant entity must provide the opportunity equitably to all tenderers.

10.30 Further consideration must be given only to submissions that meet minimum content and format requirements.

Awarding contracts

10.31 Unless a relevant entity determines that it is not in the public interest to award a contract [8], it must award a contract to the tenderer that the relevant entity has determined:

satisfies the conditions for participation;
is fully capable of undertaking the contract; and
will provide the best value for money, in accordance with the essential requirements and evaluation criteria specified in the approach to market and request documentation.

10.32 A relevant entity must not cancel a procurement, or terminate or modify an awarded contract, so as to avoid the rules of Division 2 of these CPRs.

Appendices and Index

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Appendix A: Exemptions from Division 2

Procurements that are exempt from the rules of Division 2 by the operation of Appendix A are still required to be undertaken in accordance with value for money and with the rules of Division 1 of these CPRs.

Division 2 does not apply to:

leasing or procurement of real property or accommodation (note: the procurement of construction services is not exempt);
procurement of goods and services by a relevant entity from other Commonwealth, state, territory or local government entities when no commercial market exists or when legislation or Commonwealth policy requires the use of a government provider (for example, tied legal services);
procurements funded by international grants, loans or other assistance, when the provision of such assistance is subject to conditions inconsistent with this document;
procurements funded by grants and sponsorship payments from non-Commonwealth entities;
procurement for the direct purpose of providing foreign assistance;
procurement of research and development services, but not the procurement of inputs to research and development undertaken by a relevant entity;
the engagement of an expert or neutral person, including engaging counsel or barristers, for any current or anticipated litigation or dispute;
procurement of goods and services (including construction) outside Australian territory, for consumption outside Australian territory;
acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, and sale and distribution services for government debt;
procurement of motor vehicles;
procurement by the Future Fund Management Agency of investment management, investment advisory, or master custody and safekeeping services for the purposes of managing and investing the assets of the Future Fund;
procurement of blood plasma products or plasma fractionation services;
procurement of government advertising services;[9]
procurement of goods and services by, or on behalf of, the Defence Intelligence Organisation, the Australian Signals Directorate, or the Defence Imagery and Geospatial Organisation;
contracts for labour hire;
procurement of goods and services from a business that primarily exists to provide the services of persons with a disability; and
procurement of goods and services from an SME with at least 50 per cent Indigenous ownership.

Appendix B: Definitions

The following definitions apply for the purposes of these CPRs:

Accountable Authority – as defined in section 8 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act)

Annual procurement plan – a document published on AusTender through which relevant entities provide a short summary of their strategic procurement outlook for the coming year and information on significant procurements they plan to undertake.

Approach to market – any notice inviting potential suppliers to participate in a procurement which may include a request for tender, request for quote, request for expression of interest, request for application for inclusion on a multi-use list, request for information or request for proposal.

Note: the acronym ‘ATM’ is used on AusTender and other procurement documents to reference an approach to market.

AusTender – the central web-based facility for the publication of Australian Government procurement information, including business opportunities, annual procurement plans and contracts awarded.

Commercial goods and services – commercial goods and services are of a type that are offered for sale to, and routinely purchased by, non-government buyers for non-government purposes, including any modifications common in the commercial marketplace and any minor modifications not common in the commercial marketplace.

Commodity market – a recognised exchange dealing in generic, largely unprocessed, goods that can be processed and resold.

Conditions for participation – minimum conditions that potential suppliers must demonstrate compliance with, in order to participate in a procurement process or for submissions to be considered. This may include a requirement to undertake an accreditation or validation procedure.

Construction services – procurements related to the construction of buildings and procurements of works as defined by the Public Works Committee Act 1969.

Contract – an arrangement, as defined by s23(2) of the PGPA Act, for the procurement of goods and services under which relevant money is payable or may become payable. Note: this includes standing offers and panels.

Contracts for labour hire – a contract under which a relevant entity engages an individual to provide labour, when the individual is engaged either directly or through a firm which primarily exists to provide the services of only that individual. This includes the appointment of an eminent individual to a special role by an Accountable Authority, or the appointment of a person or persons by an Accountable Authority to a governance committee (for example, an audit committee, ethics committee or steering committee), but does not include the engagement of consultants.

Corporate Commonwealth entities – as defined in section 8 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act)

Days – means calendar days.

End date (in a contract) – can be defined by reference to a specific date or by reference to a specific event.

Evaluation criteria – the criteria that are used to evaluate the compliance and/or relative ranking of submissions. Evaluation criteria must be clearly stated in the request documentation.

Goods – every type of right, interest or thing which is legally capable of being owned. This includes, but is not restricted to, physical goods and real property as well as intangibles such as intellectual property, contract options and goodwill.

GST – The Goods and Services Tax, as defined by the A New Tax Systems (Goods and Services Tax) Act 1999.

Limited tender – involves a relevant entity approaching one or more potential suppliers to make submissions, when the process does not meet the rules for open tender or prequalified tender.

Minimum content and format requirements – criteria that a tenderer’s submission is required to meet, when responding to an approach to market, to be eligible for further consideration in a procurement process.

Multi-use list – a list, intended for use in more than one procurement process, of pre-registered suppliers who have satisfied the conditions for participation on the list. Each approach to a multi-use list is considered a new procurement.

Non-corporate Commonwealth entities – as defined in section 8 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

Officials – as defined in section 8 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

Open approach to market – any notice inviting all potential suppliers to participate in a procurement which may include a request for tender, request for quote, request for expression of interest, request for application for inclusion on a multi-use list, request for information and request for proposal.

Open tender – involves publishing an open approach to market and inviting submissions.

Potential supplier – an entity or person who may respond to an approach to market.

Prequalified tender – involves publishing an approach to market inviting submissions from all potential suppliers on:

a shortlist of potential suppliers that responded to an initial open approach to market on AusTender;
a list of potential suppliers selected from a multi-use list established through an open approach to market; or
a list of all potential suppliers that have been granted a specific licence or comply with a legal requirement, when the licence or compliance with the legal requirement is essential to the conduct of the procurement.

Procurement – refer to paragraphs 2.7 to 2.9

Procurement thresholds – refer to paragraph 9.7

Public resources – as defined in section 8 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

Relevant money – as defined in section 8 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

Relevant entity – non-corporate Commonwealth entities and prescribed corporate Commonwealth entities (listed at Appendix B) that must comply with the CPRs when performing duties related to procurement.

Reporting thresholds – refer to paragraph 7.17.

Request documentation – documentation provided to potential suppliers to enable them to understand and assess the requirements of the procuring relevant entity and to prepare appropriate and responsive submissions. This general term includes documentation for expressions of interest, multi-use lists, open tender, prequalified tender and limited tender.

Research and development – research is described as systematic enquiry or investigation into a subject in order to discover facts or principles. Research includes surveys, market research, scientific research and educational research. Development applies to the function of creating/producing new and improved products, devices, processes or services. Development also extends to design, proof of concept and the production of prototypes.

Small and Medium Enterprises (SMEs) – an Australian or New Zealand firm with fewer than 200 full-time equivalent employees.

Specification – a description of the features of the goods and services to be procured.

Standing offer – an arrangement setting out the terms and conditions, including a basis for pricing, under which a supplier agrees to supply specified goods and services to a relevant entity for a specified period.

Submission – any formally submitted response from a potential supplier to an approach to market. Submissions may include tenders, responses to expressions of interest, applications for inclusion on a multi-use list or responses to request for quote.

Supplier – an entity or person who has entered into a contract with the Commonwealth.

Tenderer – an entity or person who has responded with a submission to an approach to market.

Index

accountability and transparency, 19–22

Accountable Authority Instructions, 7, 10

annual procurement plans, 20, 30

definition, 34

approach to market, 20, 25, 27–31

definition, 34

audit, 21

AusTender, 19–21, 25, 30

definition, 34

awarding contracts, 28, 31

Commonwealth compliance reporting, 7, 22

commercial goods and services, 30

definition, 34

commodity market, 27

definition, 34

competition, 27–8

encouragement of, 16

conditions for participation, 27–31

definition, 34

confidential information, 28

treatment of, 21–2

confidentiality

submissions, 21–2, 31

construction services 21, 24, 28, 33

definition, 34

contract end dates, 15

definition, 35

contracts, 9, 16, 19–25

definition, 34

Deep dive

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