Government Procurement Act 2001

This Act is the Government Procurement Act 2001.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act.

For example, the signpost definition ‘Territory entity—see section 6.’ means that the expression ‘Territory entity’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See Legislation Act 2001, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

In this Act:

procurement—

means the process by which a Territory entity—

acquires goods or services by any means, including purchase, lease or rent (with or without an option to buy), or exchange; or

deals in any legal or equitable estate or interest in land or deals in a right, power or privilege over, or in relation to, land as a sublease or licence over land, or part of land, in which the Territory or the Territory entity is the sublessee or licensee; and

includes the process by which a Territory entity disposes of goods by any means, including sale.

Note Interest, in relation to land—see the Legislation Act, dictionary, pt 1.

Also, procurement includes a procurement by—

a Territory entity acting solely on behalf of another entity; or

another entity acting solely on behalf of a Territory entity.

Example—par (a)

Canberra Institute of Technology acting solely on behalf of CIT Solutions

However, procurement does not include—

acquiring goods or services for—

resale; or

use in the production of goods for resale; or

an acquisition of goods or services by a Territory entity from another Territory entity; or

a dealing mentioned in subsection (1), definition of procurement, paragraph (a) (ii) between Territory entities; or

a dealing in any legal or equitable estate or interest in land or a dealing in a right, power or privilege over, or in relation to, land other than as mentioned in subsection (1), definition of procurement, paragraph (a) (ii).

Examples—par (d)

1 the grant of a lease or licence of land under the Planning Act 2023

2 the purchase of land by the Territory or a Territory entity

3 the grant of a sublease or licence by the Territory or a Territory entity as sublessor or licensor

A regulation may prescribe that something is, or is not, procurement for this Act.

In this section:

sublease includes an underlease.

In this Act:

Territory entity means—

a directorate; or

the Office of the Legislative Assembly; or

an officer of the Assembly; or

a territory authority or any other entity prescribed by regulation.

However, Territory entity does not include an entity prescribed by regulation not to be a Territory entity.

In undertaking a procurement, a Territory entity must ensure that the procurement is undertaken with probity.

For this Act, a procurement undertaken by a Territory entity is undertaken with probity if—

the Territory entity’s behaviour is ethical and there is evidence of this behaviour; and

the procurement is undertaken with integrity, uprightness and honesty.

For this Act, value for money, in relation to a procurement, means the best available outcome for the procurement that maximises the overall benefit to the Territory.

Any decisions made or functions exercised in relation to the following must achieve value for money:

selecting an entity to supply goods or services;

authorising, or committing the Territory to, the expenditure of any money;

entering into a procurement contract for the procurement;

spending any money;

amending a procurement contract;

anything else prescribed by regulation.

To achieve value for money, the responsible chief executive officer for a Territory entity must be satisfied that the decision or exercise of the function—

uses public resources in an efficient and effective manner; and

manages any risks appropriately; and

is undertaken by the Territory entity with probity; and

complies with this Act, including any direction about government procurement practices given by the Minister under section 43.

Example—par (d) a direction to consider a charter of procurement values in undertaking a procurement

Note A direction is a notifiable instrument, see s 43.

A regulation may prescribe any other matter the responsible chief executive officer for a Territory entity must be satisfied of or take into account to achieve value for money.

Any decision made under subsection (3) in relation to achieving value for money must be recorded in writing as soon as practicable after making the decision.

In particular, the written record must include the matters mentioned in subsections (3) and (4) of which the responsible chief executive officer was satisfied or took into account.

Note Under the Financial Management Act 1996, s 31A (1), the responsible director-general of a directorate may enter into, vary and administer a contract relating to the operations of the directorate if the director-general acts in accordance with that Act, s 31. Under s 31 (1), the responsible director-general of a directorate is accountable for the efficient and effective financial management of the public resources for which the directorate is responsible.

In this Act:

procurement contract—

means a contract entered into by a Territory entity and another entity for procurement under this Act; and

includes a document prescribed by regulation.

Note Contract includes a contract as amended (see dict).

A procurement contract with an estimated total consideration of $500 or more, including any amendment of the contract, must be in writing.

To remove any doubt, this part applies in relation to a procurement contract entered into by—

a Territory entity with an excluded body; or

an excluded body acting on behalf of a Territory entity with another excluded body.

Example

The Territory represented by a Territory entity enters into a procurement contract with a territory-owned corporation. The Territory entity, but not the territory-owned corporation, is required to notify the contract under this part.

In this section:

excluded body means a body that is not a Territory entity.

In this part:

notifiable contract—

means a procurement contract with a total consideration, or estimated total consideration, of at least the amount mentioned in subsection (2) (the consideration amount); and

Note Contract includes a contract as amended (see dict).

includes—

a standing-offer arrangement; and

a contract entered into under a standing-offer arrangement; but

Examples—par (ii) an order or a work order

does not include a procurement contract of a kind prescribed by regulation.

For this section, the consideration amount is—

for a standing-offer arrangement—any amount; or

for any other procurement contract (including a contract entered into under a standing-offer arrangement)—the amount prescribed by regulation.