Publishing details of procurements undertaken (Construction Guidance 5.2)

Effective date: 1 July 2021

Objective: To establish greater transparency for the market about government procurement outcomes.

Summary

Agencies must publish the contract resulting from a procurement for works or construction services with a value greater than $100,000 (inclusive of GST) on the website or system nominated by the Secretary to the Department of Treasury and Finance using the applicable form, along with key details of each contract.

Agencies subject to Financial Reporting Direction 12B (Disclosure of major contracts) must disclose the full text of contracts for works or construction services with a value greater than $10 million (inclusive of GST) on the website or system nominated by the Secretary to the Department of Treasury and Finance using the applicable form.

Agencies must also disclose variations to contracts on the record of disclosure.

This guidance describes the scope of contracts subject to disclosure, the information to be disclosed and the circumstances when certain information may be withheld from publication.

Contract disclosure requirements

Agencies subject to Financial Reporting Direction 12B (Disclosure of major contracts) must disclose:

• key details for contracts for works or construction services with a total estimated value equal to or exceeding $100,000 (inclusive of GST)
• where the Agency holds intellectual property rights to publish full contract information on a website or system nominated by the Secretary, full contract information for contracts for works or construction services with an estimated value exceeding $10 million (inclusive of GST)
• where the Agency does not hold intellectual property rights to publish all or part of a contract for Works or Construction Services with an estimated value exceeding $10 million (inclusive of GST) on a website or system nominated by the Secretary, the Agency must follow the disclosure requirements set out at Disclosure of contracts and contract variations (Attachment 1 to Instruction 5.2).

Other Agencies must disclose:

• the key details for contracts for works or construction services with a total estimated value equal to or exceeding $100,000 (inclusive of GST)

Required disclosure period

The contract information must be disclosed within 60 days of the award of a contract.

Validating information before disclosure

Agencies need to ensure that contract information for public disclosure is:

• accurate
• meaningful (provides sufficient information)
• does not breach legislative or other requirements.

Do not disclose contract information if it contravenes legislative obligations. This includes, for example, obligations under the Privacy and Data Protection Act 2014 (Vic) and the Freedom of Information Act 1982 (Vic).

The Agency should confirm that it holds the rights to publish the intellectual property of any contractual document which is subject to disclosure before it is disclosed on the contracts website.

Contracts that are subject to disclosure

Contracts and standing offer arrangements covered by the disclosure requirement are those for goods, works and construction services. The types of contracts that are subject to disclosure are:

• contracts under seal (also known as deeds)
• simple contracts (can be oral, written, or a combination of both).

Contractual documents that satisfy the above elements and are valued at $100,000 or greater (inclusive of GST) are considered to be contracts subject to disclosure. These include, for example, contracts concluded by an offer and letters of acceptance and formal (written) contracts.

Standing offer arrangements, whether or not constituted by contracts under seal (deeds), are subject to disclosure. Where contracts are made under standing offer arrangements, those contracts are also subject to disclosure and must be published.

Contracts subject to disclosure include:

• contracts for goods or materials
• contracts for construction services
• contracts for works (including buildings, infrastructure and demolition)
• contracts that establish standing offer arrangements and supplier panel arrangements
• contracts made under standing offer arrangements or supplier panel arrangements, such as:
  • purchase orders issued under a standing offer arrangement
  • purchase orders issued under state purchase contracts and sole entity purchase contracts where the services relate to public construction
• contracts entered into with suppliers listed on pre-qualification registers.

It is not necessary to disclose contracts for works or construction services that are awarded following a limited tender process that was conducted under the Special Circumstances set out in Construction Instruction 3.2.2 'for protection of essential security interests’.

Information to be disclosed - key details of contracts

Disclose the information required by the applicable form in the website or system nominated by the Secretary to the Department of Treasury and Finance.

Information to be disclosed - contracts subject to full disclosure

Disclose full contract information for contracts for works or construction services, in addition to disclosing the information required by the applicable form in the website or system nominated by the Secretary to the Department of Treasury and Finance:

• where the estimated value of the contract exceeds $10 million (inclusive of GST)
• where Financial Reporting Direction 12B (Disclosure of major contracts) applies
• subject to grounds to withhold certain information from disclosure.

Disclosure of contracts and variation to contracts (Attachment 1 to Construction Instruction 5.2) describes how to disclose the following documents forming part of a contract:

• plans or drawings
• where an Agency does not hold the right to publish a contract document.

Follow the requirements of Disclosure of contracts and variation to contracts (Attachment 1 to Instruction 5.2) when considering grounds to withhold certain information from disclosure.

Disclosing contract variations

Variations that typically occur throughout the contract period involve:

• adding planned but not specified works or services
• applying contingencies for Agency variations to the scope of works or services
• addressing errors and omissions in the design or documentation
• addressing staged or periodic extensions to contracts.

Variations may affect the contract value, scope, duration or other elements of the contract, or a combination of these.

Agencies must update the contract disclosure record if variations or amendments are made to a contract for works or construction services. Variations or amendments to contracts must be disclosed on the contract record to which the variation relates.

Variations to contracts must be disclosed, at the latest, when:

• for contracts for works (when the works are substantially complete at practical completion) - the contract reaches practical completion
• for contracts for works (when there are ancillary works outstanding at practical completion) - the contract reaches practical completion for those works completed up to practical completion, with additional variation disclosures, as needed, as the ancillary works are completed
• for contracts for construction services – the contract ends.

Where a variation to a contract is subject to an unresolved claim at practical completion, disclose the variation subject to the claim as an additional variation disclosure when the claim is settled.

Amendments to contracts that follow from taking up options under the contract must be disclosed within 30 days of exercising the option.

Follow the requirements of Disclosure of contracts and variation to contracts (Attachment 1 to Construction Instruction 5.2) when disclosing variations or amendments to contracts for works or construction services.

Revision history

First release - 1/07/2018

Revision 1 - 30/12/2018

Disclosing contract variations:

• In the paragraph ‘Variations to contracts must be disclosed, at the latest’, clarify when to disclose contract variations when there are ancillary works outstanding at practical completion.
• Following the paragraph ‘Variations to contracts must be disclosed, at the latest’, insert new paragraph that clarifies when to disclose a variation to a contract that is subject to an unresolved claim at practical completion.

Revision 2 - 1/07/2021

Contract disclosure requirements:

• Insert new section requirement to apply when an Agency does not hold the intellectual property rights to publish the terms and conditions of contract.
• Amend requirement to apply when an Agency does not hold the intellectual property rights to publish a document attached to a contract.

Tools and support

The Construction Toolkit includes key documents, guidance and information about the Ministerial directions and instructions for public construction.

The Victorian government tender website Buying for Victoria Supplier Portal (formerly TendersVIC).

For further information about the Ministerial directions and instructions for public construction procurement, please contact the Construction Policy Team.