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Government Procurement (Judicial Review) Bill 2017

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2016-2017-2018

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

GOVERNMENT PROCUREMENT (JUDICIAL REVIEW) BILL 2017

 

 

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator the Hon Mathias Cormann, Minister for Finance and the Public Service)

 

 



GOVERNMENT PROCUREMENT (JUDICIAL REVIEW) BILL 2017

 

 

This addendum responds to requests from the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 8 of 2017, dated 9 August 2017 and reflects the updated circumstances of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11).

OUTLINE

Replace the paragraph starting with “These obligations are found in the World Trade Organization Agreement on Government Procurement…” with the following paragraph:

These obligations are found in the World Trade Organization Agreement on Government Procurement, to which Australia has submitted a bid to accede, and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, which was signed on 8 March 2018.

 

Regulation impact statement

 

Replace the paragraphs under the Regulation impact statement with the following paragraphs:

 

The Department of Foreign Affairs and Trade certified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Analysis of Regulatory Impact on Australia as meeting the requirements of a Regulation Impact Statement.

Under the Australian Government Guide to Regulation, the Office of Best Practice Regulation (OBPR) does not assess independent reviews. The National Interest Analysis was tabled in Parliament on 26 March 2018, which included the Analysis of Regulatory Impact on Australia as an attachment,  including consideration of the supplier complaints mechanism. The National Interest Analysis is available at https://ris.pmc.gov.au/2018/05/14/comprehensive-and-progressive-agreement-trans-pacific-partnership-tpp-11.

Clause 2: Commencement

Replace the dot point starting with “Clause 2 is the commencement provision of the Bill” with the following dot point:

·                      Clause 2 is the commencement provision of the Bill. The whole of the Act will commence on a date to be fixed by proclamation. However, if the Act does not commence within six months of receiving Royal Assent, it will commence on the day after the end of this six-month period. This will allow appropriate flexibility regarding the commencement of the Act to facilitate Australia’s accession to the World Trade Organization Agreement on Government Procurement following the conclusion of negotiations and to allow the Comprehensive and Progressive Agreement for Trans-Pacific Partnership to commence for Australia as soon as possible. Further, this commencement provision allows the Department of Finance to provide certainty to relevant stakeholders, including procuring entities and suppliers, regarding the commencement and operation of the legislation.

Clause 5: Covered procurement

Replace the dot point starting with “Subsection 1(b)” with the following dot point:

·                     Subsection 1(b) provides that additional procurements may be exempted from the definition of a covered procurement if specified in a determination under subsection 2.

At the end of the dot point starting with “Subsection 2”, insert the following text:

The intention is to allow the Government of the day flexibility to exempt additional procurements, if needed, and to do so in a manner that reflects the Government’s particular circumstances and requirements. The determination power would be used in a manner that is consistent with Australia’s free trade agreements. It is not envisaged that determinations would be issued regularly.

Clause 23: Contravention of the Commonwealth Procurement Rules does not affect the validity of a contract

At the end of the dot point starting with “Clause 23 subsection 1”, insert the following text:

The intention of the clause is to provide certainty to both suppliers and the officials of relevant entities on the validity of contracts awarded following a procurement process. It allows contracted suppliers to proceed with their work without concern that a breach of the CPRs by a relevant entity could render their contract invalid. The provision has not been limited to proceedings brought under the Bill.