Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
CLAUSE NOTES
Government Procurement Review (International Free Trade Agreements) Bill 2019
PART 1 – PRELIMINARY
Clause 1: Short title
Cites the Bill as the Government Procurement Review (International Free Trade Agreements)
Bill 2019.
Clause 2: Commencement
Provides for the Bill to commence on a day to be proclaimed.
Clause 3: Interpretation
This clause establishes definitions for terms used in the Act.
Clause 4: Orders may declare relevant government agencies and accountable authorities
This clause provides that the Governor has the ability to declare a relevant government agency
and an accountable authority for the purposes of the Act.
Clause 5: Enforceable procurement provisions
This clause provides that the Treasurer’s Instructions made under the Financial Management Act
2016 may include or refer to guidelines that are specified to be enforceable procurement
provisions.
The guidelines may apply to a relevant government agency, even though that agency is not
otherwise required to comply with the Treasurer’s Instructions that include or refer to those
guidelines.
Clause 6: Act binds Crown
This clause provides that the Act binds the Crown.
PART 2 – COMPLAINTS
Clause 7: Supplier may make complaint
This clause provides that a supplier may make a complaint to the accountable authority of a
relevant government entity with respect to past, present or proposed future conduct alleged to
contravene an enforceable procurement provision. Such a complaint may be withdrawn.
Clause 8: Investigation of complaint
This clause provides that if a supplier makes a complaint to an accountable authority of a
relevant government agency, the accountable authority must investigate the complaint and
prepare a report.
It establishes the circumstances in which an investigation may be discontinued.
A complaint must be discontinued in the event that proceedings are instituted in the Supreme
Court and continuation of the investigation would be likely to prejudice the proper
administration of justice.
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Clause 9: Suspension of procurement where complaint made
This clause provides that if a complaint is made to the accountable authority of a relevant
government agency, the procurement which is the subject of the complaint must be suspended
unless there is a public interest certificate in relation to the procurement.
It establishes the circumstances when the suspension can cease and the relevant procurement
recommence.
PART 3 – DECLARATIONS, INJUNCTIONS AND COMPENSATION
Clause 10: Declarations and Injunctions
This clause provides that a supplier may make an application to the Supreme Court for a
declaration with respect to past, present or proposed future conduct alleged to contravene an
enforceable procurement provision.
A supplier may also make an application to the Supreme Court for a declaration to be made
that a refusal or failure to do an act or thing by a relevant government agency is or would be in
contravention of the enforceable procurement provision.
Before an application is determined, the Supreme Court may grant an interlocutory or interim
injunction restraining the relevant government agency from engaging or proposing to engage in
conduct that is or would contravene an enforceable procurement provision.
An interlocutory or interim injunction may be addressed to the accountable officer of a
relevant government agency, where the agency is not a corporation or body corporate.
The Supreme Court may discharge or vary an interlocutory or interim injunction granted.
Clause 11: Limitation on power to issue declaration
This clause provides that the Supreme Court must not issue a declaration unless it is satisfied
that the applicant has made a complaint to the relevant government agency and if it considers
that it would have been reasonable to attempt to resolve the complaint, the applicant has
made a reasonable attempt to do so.
It establishes the time period within which an application for a declaration can be made with
respect to alleged past, current and proposed contraventions of an enforceable procurement
provision. The Supreme Court retains discretion to extend the time period.
Clause 12: Determination of application for declaration where alternative remedy of
compensation applied for
This clause provides that if a supplier has made an application for compensation, there is a
public interest certificate and the procurement has not reached a stage where a contract has
been granted, the Supreme Court must consider whether issuing a declaration or the granting
of an interlocutory or interim injunction would result in a significant delay to the relevant
procurement and whether the granting of compensation would be a more appropriate remedy
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than issuing a declaration. If so, the Court may refuse to issue the declaration or to grant an
interlocutory or interim injunction.
The clause does not limit the power of the Court to grant an interlocutory or interim
injunction.
Clause 13: Certain limitations on issuing declarations or injunctions not to apply
This clause sets out the circumstances when the Supreme Court can issue a declaration or
grant an interim injunction.
Clause 14: Compensation for contravention
This clause provides that the Supreme Court may award compensation to a supplier upon its
application to the Court where there is a past, present or proposed future contravention of an
enforceable procurement provision.
Compensation is limited to reasonable expenditure incurred by the supplier in preparing a
tender for the procurement, making a complaint to the relevant government agency and in
connection with making a reasonable attempt to resolve the complaint.
PART 4 – MISCELLANEOUS
Clause 15: Public interest certificate
This clause sets out what is contained in a public interest certificate issued by a relevant
government agency.
Clause 16: Other powers of Supreme Court unaffected
This clause provides that the powers conferred on the Supreme Court are in addition to any
other powers of the Court.
Clause 17: Contravention of enforceable procurement provision does not affect validity of
contract
This clause provides that a contract is not affected by a contravention of an enforceable
procurement provision.
Clause 18: Transitional
This clause establishes that the Act, apart from clause 17, will not apply to the contravention of
an enforceable procurement provision that occurred before the commencement of the Act.
Clause 19: Regulations
This clause provides that the Governor may make regulations for the purposes of the Act.
Clause 20: Administration of Act
This clause establishes that the administration of the Act is assigned to the Treasurer and the
department responsible to that Minister in relation to administration of the Act is the
Department of Treasury and Finance.
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