Government Procurement Regulation 2007

This regulation is the Government Procurement Regulation 2007.

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

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

For example, the signpost definition ‘supplier—see section 6 (2).’ means that the term ‘supplier’ is defined in that section.

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

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

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

The following are not procurement:

a grant;

an investment or borrowing under the Financial Management Act 1996;

a loan or a rebate to, or provided by, a Territory entity;

Example

a concessional loan from the Australian Government to the Territory for loose-fill asbestos removal in the ACT

an acquisition or disposal by a Territory entity under another territory law.

Example

an acquisition under the Lands Acquisition Act 1994

In this section:

grant—

means a payment of public money to a person by the Territory, or on behalf of the Territory, to—

achieve a stated government policy outcome; and

assist the person achieve a stated objective; and

includes a payment—

made as a result of a selection process; or

made because stated criteria are satisfied; or

that is a one-off or ad hoc payment.

Examples—grants

1 a research grant

2 a community support grant

3 a grant for arts activities

public money—see the Financial Management Act 1996, dictionary.

The following are prescribed:

the ACT Teacher Quality Institute;

the Australian Capital Territory Insurance Authority;

the Building and Construction Industry Training Fund Authority;

the Cemeteries and Crematoria Authority;

the Canberra Institute of Technology;

the city renewal authority;

the Cultural Facilities Corporation;

the electoral commission;

the gambling and racing commission;

the independent competition and regulatory commission;

the integrity commission;

the legal aid commission;

the Long Service Leave Authority;

the Motor Accident Injuries Commission;

the Office of the Auditor-General;

the Office of the Work Health and Safety Commissioner;

the public trustee and guardian;

the suburban land agency.

In this section:

ACT Teacher Quality Institute means the institute established under the ACT Teacher Quality Institute Act 2010, section 10.

Australian Capital Territory Insurance Authority means the authority established under the Insurance Authority Act 2005, section 7.

Building and Construction Industry Training Fund Authority means the authority established under the Building and Construction Industry Training Levy Act 1999, section 4.

Cemeteries and Crematoria Authority means the authority established under the Cemeteries and Crematoria Act 2020, section 113.

Cultural Facilities Corporation means the corporation established under the Cultural Facilities Corporation Act 1997, section 5.

Long Service Leave Authority means the authority established under the Long Service Leave (Portable Schemes) Act 2009, section 79A.

Motor Accident Injuries Commission means the commission established under the Motor Accident Injuries Act 2019, section 22.

Office of the Auditor-General means the office established under the Auditor-General Act 1996, division 2.4.

Office of the Work Health and Safety Commissioner means the office established under the Work Health and Safety Act 2011, schedule 2, section 2.18.

The following documents are prescribed:

a labour relations, training and workplace equity plan;

a plan—

made in relation to local industry participation; and

submitted by a tenderer in relation to an open tender procurement if the estimated total consideration of the procurement is $5 million or more.

Note The Canberra Region Local Industry Participation Policy is accessible at www.procurement.act.gov.au.

This part does not apply to a procurement by a Territory entity if the procurement is—

under a standing‑offer arrangement; or

Note This part applies to a procurement to enter into a standing-offer arrangement.

of a sublease or licence over land, or part of land, in which the Territory or the Territory entity is the sublessee or licensee; or

Example

the sublease of part of a building by the Territory for Territory use

of goods or services from the Commonwealth, a State or a local government, or an entity of the Commonwealth, a State or a local government; or

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

of research and development services, other than in relation to the planning of research and development services; or

Examples—research and development services

surveys, market research, product design, production of prototypes

Example—planning of research and development services

consulting as to what should be surveyed, researched, designed or produced

of Territory banking, borrowing or investment services; or

Examples—borrowing services

sale and distribution, settlement and clearing house, registry, issuing and paying agency and credit rating services

Examples—investment services

investment management, master custody and safekeeping, investment advisory, financial market data, indices, subscriptions and licensing and research services

for engaging a person in relation to any current or anticipated litigation or legal dispute; or

Example

engaging counsel, a barrister or an expert witness

for emergency works—

to critical services that have been disrupted; or

to prevent an imminent danger to health and safety; or

of goods or services from outside of Australia, for use outside of Australia; or

a disposal.

In this section:

entity of the Commonwealth, a State or a local government means an entity of the Commonwealth, a State or a local government that exercises functions that correspond, or substantially correspond, to the functions of—

an entity mentioned in the Act, section 6, definition of Territory entity; or

a territory-owned corporation; or

a territory authority that is not a Territory entity; or

a territory instrumentality.

sublease includes an underlease.

The responsible chief executive officer for a Territory entity may delegate the officer’s functions under this part to a public employee.

Note For laws about delegations, see the Legislation Act, pt 19.4.

This section applies to a procurement by a Territory entity if the estimated total consideration of the procurement is less than $25 000.

The Territory entity must seek at least 1 written quotation from an entity that can supply the goods or services (a supplier) for the procurement.

However, a Territory entity may obtain an oral quotation from a supplier for a procurement with an estimated total consideration of less than $500.

This section applies to a procurement by a Territory entity (a limited tender procurement) if the estimated total consideration of the procurement is—

for goods or services that are not related to construction work—at least $25 000 but less than $500 000; and

for goods or services related to construction work—at least $25 000 but less than $1 million.

The Territory entity must seek at least—

3 written quotations for the procurement from suppliers; or

1 written quotation for the procurement from a supplier that is—

a certified Aboriginal or Torres Strait Islander entity; or

a small or medium business entity based in the ACT or surrounding region.

In this section:

Aboriginal or Torres Strait Islander person means a person who—

is a descendant of an Aboriginal person or a Torres Strait Islander person; and

identifies as an Aboriginal person or a Torres Strait Islander person; and

is accepted as an Aboriginal person or a Torres Strait Islander person by an Aboriginal community or a Torres Strait Islander community.

certified Aboriginal or Torres Strait Islander entity means an entity that—

is at least 50% owned and operated by an Aboriginal or Torres Strait Islander person; and

has been certified by another entity to be owned and operated by an Aboriginal or Torres Strait Islander person.

Examples—certifying entities

 Supply Nation

 National Aboriginal Community Controlled Health Organisation (NACCHO)

 Office of the Registrar of Indigenous Corporations

entity based in the ACT or surrounding region means an entity that is permanently and primarily located in the ACT or the following areas under the Local Government Act 1993 (NSW):

Bega Valley;

Eurobodalla;

Goulburn Mulwaree;

Hilltops;

Queanbeyan-Palerang Regional;

Snowy Monaro Regional;

Snowy Valleys;

Upper Lachlan Shire;

Wingecarribee;

Yass Valley.

small or medium business entity means an entity that employs less than 200 people.

This section applies to a procurement by a Territory entity (an open tender procurement) if the estimated total consideration of the procurement is—

for goods or services that are not related to construction work—at least $500 000; and

for goods or services related to construction work—at least $1 million.

The Territory entity must—

invite tenders for the procurement; and

advertise the invitation electronically for at least—

25 days; or

10 days if—

the Territory entity has published notice of the procurement electronically for at least 40 days, but not more than 12 months, before the first day the invitation is advertised; or

exceptional circumstances mean that an advertising period of 25 days is impracticable.

If there are 2 or more invitations for tenders for the procurement, each invitation must comply with the requirements mentioned in subsection (2) (b).

The responsible chief executive officer for a Territory entity may exempt the Territory entity under section 10 or section 10A for any of the following reasons (the exemption reasons):

for a procurement that includes 2 or more approaches to market—in response to the first approach to market, the Territory entity did not receive—

any written quotations or tenders; or

any written quotations or tenders that would achieve value for money; or

any written quotations or tenders that met the minimum requirements for content and format; or

any written quotations or tenders that satisfy the conditions for participation;

the goods or services to be procured are needed urgently as a result of an unforeseen event outside of the Territory’s control;

the need for a procurement has arisen unexpectedly and is not routine;

Examples

unusual disposals, unsolicited innovative proposals, liquidation, bankruptcy, receivership

only 1 supplier, or a limited number of suppliers, can supply a particular good or service because—

the good or service to be procured is artwork; or

there is a need to protect patents, copyrights or other exclusive rights or proprietary information; or

a supplier with specialist knowledge or equipment is required;

the procurement is for another procurement from an existing supplier and a new supplier is not feasible—

for technical reasons; or

Examples

1 compatibility with existing equipment, software or services

2 a condition under a warranty

because it would cause significant inconvenience or substantial duplication of costs for the Territory entity;

the good or service to be procured is a commodity;

the good or service to be procured is—

a prototype; or

an original good or service intended for limited initial release; or

developed at the Territory entity’s request for research or development purposes;

the procurement is from a winner of a design contest, if—

the contest was held to award the winner with a design contract; and

the contest is conducted in a way that complies with the Act; and

the contest judges are independent;

there is an existing procurement contract (the initial procurement contract) for goods or services related to construction work and the procurement is for additional goods or services that—

were not included in the initial procurement contract but were within the objectives of the written quotation or tender process for the initial procurement contract; and

have become necessary, as a result of an unforeseen event, to complete the construction work under the initial procurement contract; and

the total value of any contract awarded for procurement of the additional goods or services will not exceed 50% of the value of the initial procurement contract.

Subsection (1) (i) applies whether the additional goods or services are supplied under the initial procurement contract as amended or a new procurement contract.

In this section:

approach to market, in relation to a procurement, means to seek written quotations or invite tenders for the procurement.

conditions for participation means any conditions that a potential supplier must comply with in order for the supplier’s written quotation or tender to be considered or to otherwise participate in the procurement process.

Example—condition

a requirement to undertake an accreditation or validation procedure