The Government recognises that private sector proposals will contain commercially confidential information or intellectual property. All proposals will be treated in confidence, and formal confidentiality agreements will be considered when specifically requested by the proponent.
The Government, however has a requirement of public accountability and as such all agreements will be transparent. The proponent must satisfy the Government that the community's interests in respect of probity, equity and value for money can be assured.
In proposing to entertain direct negotiation, the Government recognises the need to provide positive encouragement to the private sector through acknowledging the considerable value that accords to many development proposals. The Government also recognises the expense incurred by the private sector in bidding for projects and circumstances may exist where the net economic benefit to the community may not warrant the expense of requiring other parties to develop additional proposals.
Where a proposal which was initiated by the private sector is subject to competitive bidding, the brief or tender will be written on a broad functional or performance needs basis to protect specific ideas regarding potential solutions and any intellectual property rights in the initial proposal.
In those instances where the original proponent is an unsuccessful tenderer, the Government may consider providing the proponent with compensation to reflect the costs incurred in developing the proposal to the expression of interest stage.
If the proponent requires this arrangement, the requirement for and the quantum of the compensation will be subject to an agreement between the Government and the proponent at the time of initial registration of interest. In such circumstances, the proponent must be able to demonstrate that:
■ considerable resources have been expended in developing the initial proposal;
■ the project has sufficient community benefit to warrant the additional expenditure; and
■ would not otherwise in the course of normal business have been likely to emerge in the proposed form. A high degree of innovation approaching the legal concept of "intellectual property" would be expected.
In the interests of public accountability and subject to the requirements of the Freedom of Information Act, essential elements of infrastructure projects involving public financing should be transparent. While the Government respects the private sector requirements for confidentiality, elements that may involve public sector exposure to liability will be subject to disclosure, if such disclosure is required.