If you are awarded a contract | Selling to Government

My business’s response was successful. What information about me, my business and our response will be made public?

If the value of the contract your business won is $10,000 or more, details of the contract, including details of the successful supplier, will be published on AusTender as a ‘Contract Notice’ within 42 days of the contract being awarded. At a minimum, this will include:

contract description
contract period
contract value
procurement method
supplier name
supplier town / city, postcode, state / territory, and country of operation.

This same information may also be provided to other businesses that were unsuccessful. Similar information may be published in the Australian Government organisation’s annual report or other parliamentary reporting.

No other details about your response will be made public.

Can I understand what aspects of my tender response contributed to my success?

Yes.

You are entitled to request a debriefing from the procuring official after the completion of every approach to market, even if you were successful. Receiving feedback on any tender response can help businesses complete more effectively in future processes. Many Australian Government organisations will offer debrieﬁng sessions to unsuccessful tenderers as a matter of course. If not automatically offered, Australian Government organisations must provide debrieﬁngs on request.

The primary purpose of a debrieﬁng is to enable potential suppliers to understand the strengths and weaknesses of their proposal, and help development of more competitive bids in the future. Please note that aspects of another business’s response or offer cannot be discussed with you. The purpose of a debrieﬁng session is not to justify the selection of the successful tender, rather it is to give you feedback on your response.

The debriefing may be conducted by phone, email, or face to face according to what is convenient for you and / or the policies of the Australian Government organisation running the approach to market.

Why are Commonwealth terms and conditions used in preference to my own standard or industry-based contract?

The Commonwealth Contract Terms are designed for contracts valued at under $200,000 and are intended to create uniformity across Australian Government contracts, reducing the burden on suppliers contracting with Australian Government buyers. Using these standard terms and conditions without alteration means that it is much faster and cheaper for Australian Government organisations and suppliers to enter into a contract and they do not have to seek bespoke legal advice for every purchase.

The Commonwealth Contract Terms also include particular requirements that have to be included in contracts with an Australian Government organisation that are not typical of standard private sector contracts. For example, the requirement to comply with national security obligations, the emphasis on privacy obligations, and the need to allow access to records if the Australian National Audit Office audits the contract.

The Commonwealth Contract Terms outline your rights and obligations around matters such as:

managing conflicts of interest
managing confidential and personal information
obtaining and maintaining appropriate licenses
auditing arrangements
liability and indemnification
dispute resolution.

The Commonwealth Contract Terms have been streamlined, had duplication and complexity removed, and are written in much simpler language than contracts previously used across Australian Government organisations. There has also been extensive consultation with industry and suppliers to ensure that the terms are balanced and fair.

The Commonwealth Contracting Suite and its terms are only for Australian Government contracts. State and territory government organisations have their own frameworks and templates.

My contract contains a clause requiring me to comply with the Commonwealth Supplier Code of Conduct. Do I need to do anything to demonstrate my compliance with the Code throughout the duration of the contract?

The Commonwealth Supplier Code of Conduct (Code) outlines the Commonwealth’s minimum expectations of suppliers and their subcontractors while under contract with the Commonwealth and provides structure to both suppliers and Australian Government organisations on how supplier misconduct will be handled. The expectations in the Code do not supersede or alter your existing legislative, policy, regulatory, or other contractual obligations.

The Code clauses require you to comply with the Code when performing your obligations under the contract, and to ensure your officers, employees, and agents comply with the Code. This means proactively monitoring and assessing compliance. If you become aware of a breach, you must immediately notify the Australian Government organisation. If a possible breach is identified by the Australian Government organisation, it may issue you a Notice.

The Australian Government organisation may request information about your compliance with the Code throughout the duration of the contract. This may include assurance that expectations continue to be met or, where there has been a breach of the Code, you may be required to demonstrate you have appropriate policies, frameworks, or similar, in place regarding ethics, governance, and accountability to prevent reoccurrence of a breach.

Further information on the Code and Code clauses can be found here: https://www.finance.gov.au/government/procurement/commonwealth-supplier-code-conduct.

How are breaches of the Commonwealth Supplier Code of Conduct managed?

The Commonwealth Supplier Code of Conduct (Code) leverages existing remediation and termination provisions in contracts and requires the Australian Government organisation and the supplier to remediate potential breaches, with termination mechanisms only utilised where a supplier fails to comply with contractual clauses.

If you become aware of a breach, under the Code clauses, you must immediately notify the Australian Government organisation managing the contract. If a possible breach is identified by the Australian Government organisation managing the contract, it may issue you a notice (consistent with the process detailed in the contract for issuing notices).
Following the notification of a breach, the Australian Government organisation may require you to demonstrate you have appropriate policies, frameworks, or similar, in place regarding ethics, governance, and accountability to prevent reoccurrence of the breach.

Consequences for breaching the Code is dependent on the significance of the breach. In most instances, breaches may be rectified by both parties agreeing to a course of action that allows the breach to be addressed and controls to be put in place to prevent further instances of a breach occurring. This course of remediation is generally managed under the contract in the same way as any other form of performance management.

When determining appropriate actions following a breach notice, the Australian Government organisation may consider it necessary to introduce additional controls into the contract, and the management of the contract, to mitigate risks that may have arisen in relation to the breach. The type and extent of controls introduced will be reflective of the significance of the breach.

If you fail to comply with the Code clause, it will be a breach of the contract. Should the Australian Government organisation consider a breach is material, the Australian Government organisation can terminate for cause without remediation.

Be mindful that breaches of the Code may also trigger a notification obligation under the Notification of Significant Events clause (Notifications clause). You should carefully review your contract to determine if either party has an obligation under the Notifications clause. If you are unsure, consult with the Australian Government organisation managing the contract.
Further information on the Code and Code clauses can be found here: https://www.finance.gov.au/government/procurement/commonwealth-supplier-code-conduct.

Am I required to ensure my officers, employees, agents, and subcontractors adhere to the Commonwealth Supplier Code of Conduct?

The Commonwealth Supplier Code of Conduct (Code) clauses require you to comply with the Code, and ensure your officers, employees, agents and subcontractors comply with the Code in connection with the performance of the contract. The clause also requires you to periodically monitor and assess your, and your officers’, employees’ and agents’ compliance with the Code.

The extent of due diligence you undertake in assessing your, and your officers, employees and agents’ compliance with the Code is up to you. Whilst you are required to comply with all expectations in the Code, you may like to take into consideration any specific aspects of the Code identified, and/or any specific information requested in the approach to market documentation to help inform the type and extent of compliance monitoring you undertake.

Further information on the Code and Code clauses can be found here: https://www.finance.gov.au/government/procurement/commonwealth-supplier-code-conduct.

Why are the contracts different from one Australian Government organisation to the next?

The Australian Government has implemented arrangements to minimise the burden on businesses contracting with the Australian Government and to streamline and simplify procurement processes for Australian Government organisations.

The Commonwealth Contracting Suite (CCS) is a standard, streamlined, and simplified contract that is mandatory for Australian Government organisations to use for contracts valued under $200,000, except in specific circumstances, such as when purchasing information and communication technology (ICT) goods and services, or purchasing construction works, specialist scientific equipment or specialist military goods or services.

Use of the CCS is also encouraged for contracts valued from $200,000 to $1 million. However, contracts above $200,000 may vary between Australian Government organisations due to differing risk attitudes, contract specifications and business natures of each organisation. Australian Government organisations are still encouraged to minimise the burden on businesses, and streamline and simplify procurement processes.

I don’t think I have a contract. I just have a Purchase Order.

A purchase order is actually a simple contract.

The Australian Government also has Commonwealth Purchase Order Terms. These are used across the Australian Government.

I don’t think I have a contract. I just have a Work Order / Consultancy Order / Official Order.

An ‘order’ is typically issued under a standing offer. The order is the contract. The original agreement between the parties (the standing offer) is an agreement called a 'deed’ and was only a preliminary arrangement to determine when and how an order can be made.

The work order (or other similar document) is the contract document and will contain details of the goods or services that your business has contracted to provide, the price, the delivery details, and administrative information. While the Order Terms will have authority, they must be read together with the terms of the original deed of standing offer.

When will my business get paid?

The payment terms will be contained in the contract between your business and the Australian Government organisation.

Further information is included in the Getting paid section of this website.

Will someone in the Australian Government organisation manage their side of the contract?

For short-term contracts the Australian Government organisation should appoint a contact person with whom you can discuss delivery, acceptance, administration, and payment details. For smaller and shorter contracts this is typically the direct client who is using the goods and services or an office manager.

For long-term or more complex contracts, this may be a designated contract manager or a project manager within a business area of the Australian Government organisation. The contract should contain the contact details for this person, and you should attempt to establish an effective working relationship with them through open and regular communication.

The contract will set out the roles and responsibilities of all parties, including how, when and to what standard the deliverable/s identified in the contract are to be delivered. The contract will also contain provisions for how the organisation will monitor contract outputs and how disputes are to be managed.

Are there any tips for working successfully with an Australian Government organisation?

the most important thing is to deliver the goods or services on time, on budget and in a professional manner
fill in the paperwork for your contract promptly and give the Australian Government contract manager any information that they need as soon as you can
keep your contract manager informed – let them know what is happening during the life of the contract – you might do this by phone, email or attending meetings – regular meetings relevant to the contract timeframes are good practice
don’t be afraid to advise of issues – do this as soon as they arise – a professional contract manager would prefer to work with you to prevent issues rather than try to fix them afterwards
promptly return phone calls or emails to your contract manager – even if things are not going well – it is better to work together to fix problems, than to make things worse by being difficult to contact
do not use the contract as an opportunity to tout for additional work – there are proper procurement processes that must be followed, and your client can’t just give you add on work even if it might seem like a good idea to you
provide correctly rendered invoices
seek permission before introducing any subcontractors or specified personnel that were not approved on the contract
if you are at the client’s premises, always follow any instructions given there, especially in relation to work health and safety and security issues
if personnel change during the life of your contract, make sure to discuss the transition to conduct introductions early.