All local governments in New South Wales are required under the Government Information (Public Access) Act 2009 (GIPA Act) to record and disclose certain information about contracts with private sector bodies.
Contracts to be recorded in the register of contracts between Council and private sector bodies worth more than $150,000 and involve:
- The contractor undertaking a specific project such as construction, infrastructure or property development;
- The contractor agreeing to provide specific goods or services; or
- The transfer of lease of real property.
There are three classes of Contract recognised under the GIPA Act, and the information that is to be disclosed varies with each classification.
Class 1 Contracts
Those that have, or are likely to have, a value of $150,000. Council must enter the following information about class 1 contracts into the register of council contracts within 60 days of the contract becoming effective:
- The name and address of the private sector contractor;
- Details of any related company that may be involved in carrying out the contractual obligations;
- The date the contract became effective and its duration;
- The particulars of the project or goods or services to be provided under the contract;
- The estimated amount payable to the contractor and any allowable variations to that amount;
- Any renegotiation provisions;
- The method of tendering and criteria for assessment, if appropriate; and
- Any provisions for payment to the contractor for operational or maintenance services.
Class 2 Contracts
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.
- The contract was the subject of a tender (whether public or not) but the terms and conditions have been substantially negotiated with the contractor.
- The obligations of one or more parties to maintain or operate infrastructure or assets.
- Could continue for 10 years or more, and the contract involves a privately financed project (as defined by Treasury) or the exchange of significant assets.
- In addition to the requirements for class 1 contracts, class 2 contracts require the following information to be entered in the register:
- Particulars of any future transfer of significant assets to and from the council.
- The results of any cost benefit analysis.
- Particulars of how risk will be apportioned, if relevant particulars of any significant guarantees or undertakings between the parties.
- Any other key elements of the contract (see section 30).
Class 3 contracts
If a class 2 contract has a value, or likely value of more than $5 million, it becomes a class 3 contract. Council must publish a copy of a class 3 contract on the register of council contracts.
What information is protected?
Council does not have to publish the following confidential information in the register of council contracts:
- 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; or
- Any information where there is an overriding public interest against disclosure.
Commercial in confidence provisions of a contract refer to information which:
- 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 council; or
- Would disclose any intellectual property in which the contractor has an interest.
When must the information be included in the register?
Information about council contracts must be included in the register within 60 days of the contract becoming effective.
Information, including a copy of the contract, must 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.