Commonwealth of Australia Explanatory Memoranda

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GOVERNMENT PROCUREMENT (JUDICIAL REVIEW) BILL 2017

                                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

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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.




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