The purpose of these guidelines is to provide NSW government agencies with a practical model to determine what, how and when specific information arising from government tenders and contracts (including project deeds and other forms of agreements) with the private sector should be publicly disclosed and what information should remain confidential.
The guidelines:
• set out the requirements for disclosing tender information;
• describe the new contract disclosure obligations which are contained in section 15A of the Freedom of Information Act 1989 (FOI Act); and
• outline how requests for contract information, over and above that which is required to be disclosed under section 15A of the FOI Act, should be dealt with by agencies.
The requirements of these guidelines:
• are to be implemented by all agencies including Government Trading Enterprises (but excluding State Owned Corporations and Department of State and Regional Development contracts which involve industry support). Shareholding Ministers and boards of State Owned Corporations may give consideration to voluntarily adopting the guidelines;
• apply to all government contracts, as defined; and
• apply irrespective of the method of tendering or negotiation, and include contracts awarded to suppliers from established standing offer panels.
In these guidelines a reference to a 'government contract' or 'contract' has the same meaning as set out in section 15A of the FOI Act, being:
(a) a contract between an agency and a private sector entity under which the agency or private sector entity agrees:
(i) to undertake a specific project (such as a construction, infrastructure or property development project), or
(ii) to provide specific goods or services (such as information technology services), or
(iii) to transfer real property to the other party to the contract,
(b) a lease of real property where the parties to the lease are an agency and a private sector entity, but does not include a contract of employment.
In addition to the requirements in these guidelines, contracts for privately financed projects also need to comply with additional disclosure requirements set out in the "Working with Government - Guidelines for Privately Financed Projects" (see www.treasury.nsw.gov.au).
The description in these guidelines of the main obligations in the new FOI Act provisions is intended to assist agencies to implement those provisions and should not be taken to replace those legislative obligations. Agencies should be familiar with the precise requirements of the new FOI Act provisions and should, at all times, comply with those requirements.