Public disclosure of contracts

The Government Information (Public Access) Act 2009 (GIPA Act) establishes a proactive, open approach to gaining access to government information in NSW. It highlights that all government information should be accessible to the public unless there is an overriding public interest against disclosure.

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The GIPA Act requires agencies to disclose contracts with the private sector valued over $150,000, including GST.

Agency contracts must be disclosed on eTendering. Agencies may also choose to publish their contract register elsewhere, such as on the agency’s public website.

Agencies must comply with the contract disclosure and open access information requirements of the GIPA Act, including formal requests to access government information, subject to the public interest provisions in the Act. Agencies are also encouraged to proactively share information on procurement processes and decision-making, such as publishing procurement policies and processes, and by providing supplier briefings and debriefings on procurement activities.

Disclosure requirements

All government contracts with an estimated value of $150,000 or above, including GST, must be disclosed on the eTendering website within 45 days of becoming effective.

The contract disclosure notice must be publicly available for at least 20 working days, or the period until the contract is complete, whichever is longer.

The following provides a guide to contract information that must be disclosed. However, you can and should confirm for yourself what the required information is by going to Division 5 in the GIPA Act.

Contract effective date

A contract is considered to come into effect:

  • when it is entered into by or on behalf of the agency, or
  • if the contract contains a provision that one or more conditions must be met before the obligations of the parties under the contract become enforceable, when the condition/s have been met.

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Contract classes

The Act defines three different classes of government contract. The type of contract information to be disclosed differs according to the class.

Class 1 contracts

Class 1 includes all government contracts with an estimated value of $150,000 or above, including GST.

Information to be provided
  • Value of the contract over the term of the contract
  • Name and business address of the successful contractor/s
  • Date the contract became effective
  • Duration of the contract, including any extension provisions
  • Description of the project to be undertaken, goods or services to be provided or the real property to be leased or transferred under the contract
  • Description of any provisions under which the amount payable to the contractor may be varied
  • Description of any provisions with respect to the renegotiation of the contract
  • In the case of a contract arising from a tendering process, the method of tendering and a summary of the criteria against which the tenders were assessed
  • Description of any provisions under which the contractor is to receive payment for providing operational or maintenance services.

Class 2 contracts

Class 2 includes all government contracts with an estimated value over $150,000 to less than $5 million (including GST) which fall into any of the following categories:

  • There has not been a tender process, the proposed contract has not been made publicly available and the terms and conditions of the contract have been negotiated directly with the contractor.
  • The proposed contract (whether or not made publicly available) has been the subject of a tendering process and the terms and conditions of the contract have been substantially negotiated with the successful tenderer.
  • The obligations of one or more parties under the contract to maintain or operate infrastructure or assets could continue for 10 years or more.
  • The contract involves a privately financed project as defined by guidelines published by the Treasury (TPP17-07 NSW PPP Guidelines)
  • The contract involves a transfer of a significant asset of the agency to another party in exchange for the transfer of an asset to the agency.
Information to be provided

All information to be disclosed for a class 1 contract, plus:

  • Particulars of future transfers of significant assets to the State at zero, or nominal, cost to the State, including the date of their proposed transfer
  • Particulars of future transfers of significant assets to the contractor, including the date of their proposed transfer
  • The results of any cost-benefit analysis of the contract conducted by the agency
  • The components and quantum of the public sector comparator if used
  • If relevant, a summary of information used in the contractor’s full base case financial model (for example, the pricing formula for tolls or usage charges)
  • If relevant, particulars of how risk, during the construction and operational phases of a contract to undertake a specific project (such as construction, infrastructure or property development), is to be apportioned between the parties, quantified (where practicable) in net present-value terms and specifying the major assumptions involved
  • Particulars as to any significant guarantees or undertakings between the parties, including any guarantees or undertakings with respect to loan agreements entered into or proposed to be entered into
  • Particulars of any other key elements of the contract.

Class 3 contracts

A Class 3 contract is a Class 2 contract that has (or is likely to have) an estimated value over the life of the contract of $5 million or more (including GST).

Information to be disclosed

All information required for a class 2 contract, plus a copy of the contract.

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Confidential information

Confidential information is not required to be disclosed, including:

  1. the commercial-in-confidence provisions of a contract, or
  2. details of any unsuccessful tender, or
  3. any matter that could reasonably be expected to affect public safety or security, or
  4. a copy of a contract, a provision of a contract or any other information in relation to a contract that is of such a nature that its inclusion in a record would result in there being an overriding public interest against disclosure of the record.

If an agency does not include a copy of a class 3 contract on the register, or includes only some of the provisions of the contract, it must provide:

  1. the reasons why the contract or those provisions have not been included in the register, and
  2. a statement as to whether it is intended that the contract or those provisions will be included in the register at a later date and, if so, when it is likely that they will be included, and
  3. if some but not all of the provisions of the contract have been included in the register, a general description of the types of provisions that have not been included.

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Contract variations

If there are material variations to the contract, and this affects any of the information that is required to be disclosed, the contract register must be amended to reflect the variation within 45 working days of the variation becoming effective.

If the contract was published (ie the contract is a class 3 contract) a copy of the varied contract or the varied provisions must also be published on the register within 45 working days of the variation becoming effective.

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Further information

NSW Procurement has developed a 30-minute self-paced online module for NSW Government employees that covers the responsibilities of public sector employees and what information you need to disclose under the GIPA Act.

Access the contract disclosure requirements training module

    NSW eTendering has been set up to include all the required information that must be disclosed for each type of contract. View a quick guide to contract award disclosure on eTendering (DOCX, 489 KB).

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