14.  Disclosure policy and requirements

All PPPs are subject to Ministerial Memorandum No.2000-11 and the Freedom of Information Act (NSW) 1989, as amended from time to time, which sets specific disclosure requirements arising from NSW Government tenders and contracts.

The agency must ensure a contract summary is made available to the Auditor-General for audit within 30 days of the contract becoming effective. Within 90 days of receipt by the Auditor-General, the audited contract summary must be tabled in Parliament by the responsible minister.

Where Parliament is not sitting, the Clerk of the Legislative Assembly should receive the contract summary within 90 days of it being received by the Auditor-General, with a view to it being tabled the first day of Parliament's next sitting.

After the summary has been tabled, the agency must advertise the availability of the contract summary in the Public Notices. Contract summaries will also be placed on the Working with Government Website at www.treasury.nsw.gov.au/wwg.

The contract summary must distinguish between the Background to the Project (which includes non-contractual information) and Elements of the Contract (which summaries the contractual information).

The summary must contain the following information:

Background to the project

•  history of the project and its characteristics;

•  full identity of the private party, including sponsors and cross ownership with relevant companies;

•  a list of the contract(s), the nature and purpose of the contract(s), including a general description of the parties' obligations;

•  a general statement on material excluded on the basis that it is subject to obligations of confidentiality or is 'commercial in confidence'        

•  results of cost-benefit analyses and the public sector comparator compared with the successful private sector proposal;

•  significant evaluation criteria and the weightings used in the tender assessment;

•  the risk sharing in the construction and operational phases of the project, quantified in net present value terms (where possible) and specifying the major assumptions involved;

•  responsibilities of the State and contractor during the construction period;

•  a statement of the actual liabilities of the Crown; a statement of any indemnities and/or guarantees given by the Crown; and

•  a summary of the public interest evaluation.

Elements of the contract

•  description of change control provisions;

•  the commencement date, term and extension options of the contract;

•  service delivery (including maintenance), quality and performance requirements;

•  what and when assets are to be transferred by the public sector to the contractor;

•  operation and/or maintenance provisions in the contract;

•  the price to be paid by the public, and the basis for future changes in this price;

•  provisions for negotiation;

•  significant guarantees or undertakings between the parties, including loans entered into or agreed to be entered into;

•  a statement that the Auditor-General's ability to carry out the audit function under the Public Finance and Audit Act 1983 has not been diminished by the contract(s);

•  a description of the events of default and any termination rights;

•  a statement as to contractual remedies available to the Government in respect of breach or losses otherwise caused by the private party, and remedies against the Government in any circumstances:

•  a description of exit arrangements and costs of exiting;

•  a description of the situations in which the Government may exercise its contractual right to step-in;

•  a description of any pre-determined dispute resolution process;

•  description on how insurance proceeds in the event it is called upon; and

•  other key contractual arrangements elements not covered above.

A post implementation review of all PPPs will be undertaken jointly by NSW Treasury and the agency initiating the project.