As we reported last week, the NSW GIPA Act has signifcant teeth. This week, in Part 2, we assess the impact of the mandatory publishing of contract information.
The visibility of NSW agency contracting activity over recent years has been poor compared to other jurisdictions. The Federal government has been the exemplar in this regard, and the new requirements brought in by GIPA will not go as far to providing transparency as the current Federal requirements.
Of key significance government suppliers is that GIPA sets out the information about government contracts worth $150,000 or more that agencies (including State owned corporations and local councils) must publish on their websites and on the government contracts register. Agencies must publish their contracts over $150,000 within 60 days of the contract becoming effective.
The $150,000 threshold for reporting in NSW under GIPA is not new. It aligns with the reporting threshold required under the Australia/USA Free Trade Agreement (AUSFTA) which commenced in January 2005.
Federal government agencies are required to publish all contracts over $10,000 (and prior to January 2005, were required to publish all contracts above $2,000).
Intermedium’s monitoring of Federal government contracts indicates that 80% of contracts fall under the $150,000 threshhold. Therefore much of NSW ICT contracting activity will continue to remain invisible under the new GIPA arrangements. Because of the high reporting threshold most contracting activity falling under either the State Contracts Control Board panel arrangements or the panels some of the large agencies have in place will not be visible.
The contract information to be reported under GIPA includes the name of the contractor, the amount to be paid, the details of the project, the goods or services to be provided, or the real property to be leased or transferred.
GIPA provides for different levels of reporting depending on the class of contract. Detailed information is available on the OIC website.
Class 1 contractsare those that have, or are likely to have, a value of $150,000. Class 2 contractsare class 1 contracts where there has not been a public tender process and the terms and conditions of the contract have been negotiated directly with the contractor, or some other specified conditions apply. If a class 2 contract has a value (or likely value of more than $5 million) it becomes a class 3 contract. Agencies must publish a copy of a class 3 contract on the register of government contracts.
Agencies do not have to publish the commercial-in-confidence provisions of a contract, details of any unsuccessful tender, any matter that could reasonably be expected to affect public safety or security and any information where there is an overriding public interest against disclosure.
As is the current requirement for the reporting of contracts, GIPArequires information, to be included in the government contracts register for either 30 days, or until the obligations under the contract have been satisfied, whichever is the longer period. This is in contrast to the federal government arrangements where the contracts remain published indefinitely.
Each agency’s register of government contracts is to be publicly available on the NSW Government tenders website, (with the exception of universities, local and county councils and state-owned corporations), and/or available from the agency itself, either on its website or in some other format.
GIPA also specifies what cannot be released. In general, agencies must not publish and must refuse requests to disclose information in the 12 categories listed in Schedule 1 to the GIPA Act. Examples given by the OIC website include:
- Information revealing Cabinet deliberations,
- Sensitive personal or commercial-in-confidence information, and
- Information that could jeopardise public safety, law enforcement or the fair trial of a person.
In all cases, public interest is the key criteria. Political considerations must not come into play.