Contract disclosure

You have a duty to disclose contracts

You must disclose any contract you make with a private sector supplier within 45 working days of it coming into effect, so long as it’s over $150,000 (incl GST).

You must do this by publishing its details on etendering. You can also publish it on your agency website or another place if you want to.

You must make sure this contract information stays public on etendering for at least 20 days or until the contract is complete, whichever is longer.

These requirements come from the Government Information (Public Access) Act 2009.

Know when your contract comes into effect

For the purposes of your disclosure obligations, a contract is generally deemed to come into effect when you enter into it.

However, if certain conditions need to be met for the contract to become enforceable, it only comes into effect once those conditions are met.

Always disclose contracts with Aboriginal businesses

You should disclose any contract you make with an Aboriginal business of any value, on the same terms.

Disclosure of contracts with Aboriginal businesses, even low-value contracts, allows us to count the contract against the cluster’s target to award 3% goods and services contracts to Aboriginal businesses.

Know which information to disclose

What you must disclose depends on whether the contract is categorised as a class 1, class 2 or class 3 contract.

Class 1 contracts

Class 1 is the lowest level of disclosable contract. All contracts over $150,000 are class 1 contracts unless they meet the specific requirements of classes 2 or 3.

Information you must disclose for class 1 contracts

For class 1 contracts, you must disclose:

• the contract value over its full term
• the name and business address of the successful contractor
• the contract’s effective date
• how long the contract will last, including any extension provisions
• a description of the:
  • project to be undertaken
  • goods or services to be provided, or
  • real property to be leased or transferred
• a description of any provisions that can vary the amount you’ll pay the contractor
• a description of any provisions that determine how the contract can be renegotiated
• for contracts awarded from a tender, the method of tendering you used and a summary of the assessment criteria
• a description of any payment provisions for providing operational or maintenance services.

Class 2 contracts

A class 2 contract is any contract valued between $150,000 and $5 million (including GST):

• that wasn’t awarded as the result of a tender process but:
  • was negotiated directly with the contractor, and
  • the contract isn’t publicly available.
• that was awarded from a tender but whose terms and conditions have been substantially negotiated with the successful bidder.
• under which obligations to maintain or operate infrastructure or assets will continue for 10 years or more.
• that involves a ‘privately financed project’ as defined by the Treasury (TPP17-07 NSW PPP Guidelines).
• which involves the transfer of a significant asset to another party in exchange for another asset.

Information you must disclose for class 2 contracts

For class 2 contracts, you must disclose all the same information you would for a class 1 contract. However, you must also disclose:

• particulars of any future significant asset transfers to the State at zero, or nominal, cost, including the proposed transfer date
• particulars of any future significant asset transfers to the contractor, including the proposed transfer date
• the results of any cost-benefit analysis of the contract
• the components and quantum of the public sector comparator if you’ve used one
• a summary of any information used in the contractor’s full base case financial model, if relevant. This includes, for example, their pricing formula for tolls or usage charges.
• If relevant, particulars of how risk will be apportioned between the parties during the construction and operational phases of a contract to undertake a specific project (such as infrastructure, construction or property development contracts). This should be quantified in net present-value terms where practicable. You must also specify the major assumptions.
• particulars of any significant guarantees or undertakings between the parties. This includes any guarantees or undertakings for loan agreements.
• particulars of any other key elements of the contract.

Class 3 contracts

Class 3 contracts are class 2 contracts with an estimated value over the life of the contract of $5 million or more, including GST.

For these contracts, you must disclose all the same information as for a class 2 contract, and you must including a copy of the contract itself.

Disclose contract variations

You must amend the contract register with 45 working days if a contract is materially varied so that it affects your disclosable information requirements.

For class 3 contracts, you must also publish on the register a copy of the varied contract or provisions. You must do this within 45 working days of the variation’s effective date.

You may exclude some confidential information

You don’t have to disclose any confidential information, including:

• any commercial-in-confidence provisions of the contract
• details of any unsuccessful tender
• anything you reasonably expect will impact public safety or security
• any copy of a contract, contract provision or other contractual information, which by its very nature, means there’s an overriding public interest against disclosing it.

Where you don’t include a copy of a class 3 contract on the register or include only some of its provisions, you must provide a statement:

• explaining why you’ve made this choice
• on whether you’ll include the whole contract or some of its provisions in the future and, if so, which ones, and
• describing the types of provisions you haven’t included, if it’s only some of them.