This chapter looks at further issues to be considered to ensure efficient implementation of the new clauses including:
applying Australian standards;
accession to the World Trade Organization (WTO) Government Procurement Agreement (GPA).
The Australian National Audit Office (ANAO) told the Committee that the guidelines for the Commonwealth procurement framework are ‘very robust’ and praised the support provided by the Department of Finance (Finance). However, the ANAO noted that ‘some departments do not seek the support’ provided.
The ANAO identified a need for departments to recognise that procurement is ‘core business for public servants’:
Within agencies themselves, recognition that procurement is important business that needs to be well-managed needs to continue to be a message, and that accountable authority instructions have to be followed and so what are the business assurance frameworks around that.
The ANAO stresses the importance of departmental responsibility for successfully implementing the Commonwealth Procurement Rules (CPRs) and sees building capability as central to initiating cultural change:
It is the thoughtful selection of people, their training, the constant focus on the proper application of whatever rule set there is. Yes, it is a reasonably complex rule set, but it is a very well established one now. None of this should really be coming as a surprise to people involved in procurement across the Commonwealth … it is a core capability and a core part of doing business in the Commonwealth these days. There is a real obligation and duty—there is actually a duty for the accountable authority to promote the proper application of these principles.
The ANAO also suggested that departments would benefit from sharing knowledge and experience to improve their internal processes:
… there is good learning to be had from others who might have faced similar risk problems. They can share staff across these things. They can establish evaluation processes that involve more experienced people. We would implore them to look wider than just within themselves if they need the help.
Ultimately the ANAO are confident that, if departments fully utilise all of the guidance, assistance and support provided by the framework, the CPRs will be implemented effectively:
The real challenge as we see it is that people are not necessarily thinking through which part of the framework they are operating in or documenting why they are landing in a particular part of the framework—the exemptions, for example, or the competitive space or the limited tender space—and then following through and applying all the elements of the framework that apply to the part of the framework that they are occupying.
The use of a weighting system in implementing the new clauses was a contentious issue, particularly with regard to economic benefit. Both the ANAO and Finance advised that the weighting given to various factors varied from procurement to procurement:
The weighting that you would put on various matters depends on the procurement, and that is essentially the choice of the procurement officials. They would weigh up which factors have more weight in particular circumstances.
The Department of Defence (Defence) explained that it prefers a qualitative process; as a mandated weighting system does not provide the flexibility required to assess complex procurement projects:
We find that the qualitative assessment allows us to have more balance across all of the evaluation criteria. In some cases, if we were to take a purely quantitative approach, we feel that some of the benefits and also the risks may get lost in terms of the approach and may lead to a less than ideal outcome. So, if you were taking a purely mechanical or mathematical approach, our experience has been that these can often reduce your ability to truly understand and discriminate between the differences in the tenders. We often find that the quantitative numerical approach is just a bit too simplistic in relation to some of our truly complex procurement activities. We find that, on balance, the broader approach allows for greater flexibility to take into consideration a range of strategic factors.
Defence provided the example of assessing economic benefit with regard to procurement in regional or remote areas:
Predominantly, a lot of the Indigenous procurements are made in the estate area because they are in regional Australia and they are working on bases in remote areas where those Indigenous communities are the predominant communities. We are making sure that when you do economic benefit it might be that you are employing local people in a local community to do a job as opposed to flying somebody in and out of Darwin or Townsville or somewhere to do that, which is historically what we have done. The social benefit for us doing that is significant, and that is why it is really hard to have a finite methodology that says this is exactly how you are going to do something, because it stops you actually making a good decision sometimes.
In response, the Australian Steel Institute (ASI) referred to the example provided by regulation 67 of the British Public Contracts Regulations 2015 which requires weightings to be considered but provides the flexibility for them to vary from procurement to procurement:
The contracting authority shall specify, in the procurement documents, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender, except where this is identified on the basis of price alone.
Those weightings may be expressed by providing for a range with an appropriate maximum spread.
Where weighting is not possible for objective reasons, the contracting authority shall indicate the criteria in decreasing order of importance.
Proponents of a weighting system argue that the new clauses have to be considered in the context of Rules 4.1–4.15 (value-for-money) in Division 1 of the CPRs and, as those rules lack a weighting mechanism, the impact of the amendments risks being nullified. South Coast Labour Council (SCLC) contends that a ‘quantitative value and weighting’ system will strengthen the implementation of the new clauses:
We have to have a number in the equation because … there are the value for money principles … Division 2 is subordinate to division 1. Division 1 deals with the value for money. If the economic benefit is to be taken into account then there needs to be some tweaking … of division 1 as well to give it some real effect. Specifically we note this key inconsistency and contradiction … defining what value for money is is something that is not very easy to identify in the current CPRs.
The Australian Manufacturing Workers’ Union (AMWU) maintains that there is sufficient leeway in Australia’s trade agreements to accommodate a weighting system that takes into account the economic benefits of purchasing locally produced goods and services to determine ‘best value’. It uses the purchase of office paper as an example:
… a contract for the provision of office paper to the Australian government could include a weighting of 15% on material costs for any bidder who will provide paper made in Australia and 10% for service costs, where the staff providing those services were located in Australia.
In this scenario, all bidders will be treated equally. Australian firms are welcome to bid with imported paper and off-shore service support, and any American firm is welcome to bid with domestically-sourced paper and to open an Australian service support centre. All bidders know the evaluation criteria in advance and all parties understand what the Australian government believes will deliver best value when it does its calculations and the reasons for those decisions.
However, it was considered that a weighting system would be inappropriate for human rights issues. The variety and scope of factors that require assessment to establish human rights risks are too complex to be captured in a weighting process:
For this reason, and because we are cognisant of the need to ensure that any system adopted is realistic in its expectations of the volume and type of information (both company specific and more broadly in terms of nature and scope of human rights risks) individual departments and agencies making procurement decisions can access and process, we do not recommend that labour and human rights considerations be taken into account via weighting during tender assessment. Rather, we recommend that human rights be integrated into the procurement system at all stages.
The Committee heard that the Victorian and South Australian governments have both implemented weighting systems to measure economic benefit in their procurement processes. These examples are discussed in Chapter eight.
Applying Australian standards
Overall, there is strong support for the application of Australian standards. As well as ensuring safety, requiring such standards makes Australian businesses more competitive:
This creates a level playing field for tenderers then to submit their competitive tender responses without compromising on the technical performance of their goods or services.
There are, however, two widespread concerns: lack of expertise among procurement officers to identify appropriate standards and reliance on self-assessment to determine compliance.
According to the guidelines provided by Finance, the responsible procurement officer determines the standards that apply to a particular procurement. Standards are defined as:
… a document, approved by a recognised body such as Standards Australia, the International Organization for Standardization, the International Electrotechnical Commission or the International Telecommunication Union, that provides, for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory, unless the goods or services are subject to regulation by government.
Given the reliance on the expertise of individual procurement officers, Professionals Australia’s claim that the Australian Government has become an uninformed purchaser has implications for the implementation of clause 10.10 and, in consequence, clause 10.37. ANAO’s findings on the lack of skill and capability amongst all levels of procurement officials support this claim. There is concern that the lack of expertise may manifest itself with regard to identifying applicable Australian standards for individual procurements and consequently nullify the intention of the new clauses:
It is not reasonable for the government to place a complex requirement in the hands of procurement officials without the necessary support. Especially in the context of the guidelines allowing clause 10.10 to be applied at the discretion of the procurement official, this is unlikely to make any impact on existing procurement practices.
The Welding Technology Institute of Australia (WTIA), among others, identified the dangers inherent in depending on tenderers to prove their own competency without reference to a third-party auditor:
As third-party auditors for industry our experience is that there is a significant gap between organisations ‘demonstrating the capability to meet the Australian standard’ and actually meeting it. Every compliance audit results in a series of compromises in relation to complete or partial non-conformance with certain aspects of the standard. Such compromises create financial risks for the Commonwealth and safety risks for the public.
To address these concerns, the use of suitably endorsed accreditation bodies to oversee compliance with the standards required was strongly encouraged for both clauses 10.10 and 10.37. Tenderers should be expected to provide evidence of third-party certification and third-party audit reports should form part of the ‘reasonable enquiries’ undertaken when determining compliance. For example, the Australian Institute for Non-destructive Testing (AINDT) recommended that relevant materials should be independently inspected at both points:
Where applicable, and in accordance with Australian Standards, engineering products subject to Non-Destructive Testing, whether in Australia or Overseas, must be independently inspected by an accredited laboratory to ISO17025 (NATA) and personnel performing testing certified to AS ISO9712 (AINDT).
The Building Products Innovation Council (BPIC), suggested that manufacturers/suppliers have an Australian recognised ‘independently audited Quality Assurance system’ in place that meets the following minimum requirements:
testing or inspection of samples from the open market every 2–3 years (having passed completely through the supply chain and been subjected to all handling, transport and assembly stresses);
product labels/receipts to identify manufacturing date and specific manufacturing facility from where product is produced;
testing or inspection of samples from the factory/production facility;
regular and documented quality system audits; and
independent assessment of the production process or service.
However, Consult Australia sounded a note of caution, warning of the possibility of an additional regulatory burden placed on its members involved in complex projects that may include multiple standards:
There are a whole range of standards that engineers and architects rely on in their day-to-day work. So when you refer to the appropriate standards being adhered to, one of the things we would be concerned about is not only the regulatory burden being placed on firms having to note through the tender process and through the procurement process all of those standards which they will be taking into account when they are completing the engineering or architecture task—and … there might be multiples of hundreds on a complex job—but also the regulatory burden of needing to identify through the supply chain of subconsultants all of the other standards that they would then have to comply with to satisfy their own individual contracts and parts of the job. That would be a very onerous condition for a design firm and I believe it creates unnecessary cost and compliance burden for firms.
Two additional areas were highlighted by witnesses with regard to the application of standards: the definition of Australian and international standard and the lack of standards applying to some sectors.
Due to some apparent confusion during evidence supplied to the Committee, Finance pointed out that internationally recognised standards rarely differ from Australian standards and clarified the definition of international standards:
When it says international standards, the interpretation that we have clearly applied in the Commonwealth Procurement Rules is ‘international standards produced by organisations like the International Standards Organisation’, and there is a small number of equivalent international agencies. It does not mean ‘the standards of other countries’. So, if you like, it is an International standard with a capital I, rather than a foreign standard arrangement. Our consultation with Standards Australia indicates that there are very few examples of there being Australian standards differing from—capital I—International standards.
With regard to standards, Finance explained that the clauses apply to binding standards and that there is a difference between these types of standards and those formulated to only provide guidance:
The reason that not all standards would apply is that not all standards are, essentially, the equivalent of legislative, or required; there are educative standards as well: there are standards—published by Standards Australia and indeed internationally—that talk about advice to firms, how you might do something; rather than, if you think of the standard for electrical plugs, how detailed that might be.
Ethical Clothing Australia (ECA) drew attention to the circumstances in the textile clothing and footwear industry where ECA is responsible for providing a voluntary standard that demonstrates that a company’s practices are both ‘ethical and legally compliant’. As discussed previously, Commonwealth procurement policy no longer requires tenderers to be accredited by ECA and therefore demonstrate that they are compliant with these standards. Therefore the standard does not fall under clauses 10.10 and 10.37.
The Committee asked the ECA to investigate if Australian Standards had any plans to develop a similar standard. ECA found that there is currently ‘no projects underway regarding an Australian Standard for ethically produced clothing’. Such a project would need to be initiated by the industry and would still require a compliance body to oversee its implementation:
In order to further explore the possibility of developing an Australian Standard in this area would require either a member of industry or the public to submit a project proposal which would then be considered by an industry expert. It is also worth noting here that Standards Australia is not a compliance organisation, so even if a Standard was developed, they do not have the responsibility to enforce it.
ECA recommended that alternative standards be considered for sectors where an Australian standard does not currently exist.
As noted in Chapter four, the ANAO has identified lack of transparency in the current procurement system as a major concern. Stakeholders confirmed ongoing problems with ascertaining what factors have been considered in a procurement decision.
The ANAO stressed that good record keeping is the key to addressing these concerns with the implementation of the new clauses:
What we are going to look for, as we always do, is: what is the evidence that that requirement has been done? The requirement is to consider those things. We will be looking for evidence of that consideration—what they have found, what they have weighed up and what decisions have been made in the course of that—to see if it meets the requirement.
The Australian Chamber of Commerce and Industry (ACCI) stressed the importance of ‘transparency in decision-making’, suggesting that, with due regard to commercial-in-confidence issues, the Government should make their cost-benefit analysis available. The Construction Forestry Mining and Energy Union (CFMEU) advocated for clearer reporting of the reasons for a decision to procure off-shore, to help validate the choice:
If there is a competitive Australian supplier in the mix as a tenderer and the procurement officer, the funding entity or whoever is spending that government money decides to use an imported product instead of the Australian-made product, they should justify the decision. They should justify why that is better value for money for the taxpayer and take into account everything that is in the Commonwealth Procurement Rules and also the new rules, in terms of economic benefit and regulation. That means that, if an imported product is chosen over an Australian product, it is transparent as to why that has occurred.
Communication and accessibility were identified as important to encourage Australian business participation and develop confidence in the transparency of the procurement process. Engagement with industry is crucial:
As I spoke with various companies in preparation for today, the common theme that came through was that of transparency—more transparency in the process, in the outcomes and in related communications around both. Transparency will encourage investment in product development. One of the practices that is well liked in the industry is the industry briefings before a tender where the entity and the industry get together for a presentation of the requirement, for questions and answers and for inquiry input. It is also good for all parties if an agency is open to engaging with the industry well prior to a tender being released.
A lack of transparency is seen as contributing to concerns over human rights abuses in supply chains. Without transparency, third parties cannot identify or remedy breaches. Improving transparency in contracting arrangements could help:
There are two levels at which transparency would need to be enhanced in order to allow monitoring and identification of breaches by third parties. First, government would be required to reveal certain information in relation to existing contracts. Second, contractors would be required to identify (at a minimum) first and second tier contractors and locations where work is occurring.
Design and innovation
Witnesses pointed out the connection between the scoping and design stage of a project and the procurement process, emphasising that procurement should be considered early in the project life. Professionals Australia explained that decisions regarding supply are influenced by where the design work is done:
We have got to pick the right project but then we have to manage it, scope it and get the design stage right. Where you do the design affects how much downstream work you get. If you are designing a house to be built in Melbourne and it is being designed in Brisbane, it almost automatically happens that you start to design for the suppliers that you know rather than the ones here. It is small things like specifications or knowledge of the supply chain processes.
Professionals Australia emphasised that projects designed overseas are likely to advantage overseas suppliers:
That work was being done by Bechtel and these other major companies out of Houston, Yokohama and London. They were designing that, knowing that the work would go to the supply chains out of Australia. So where you design has a massive effect on the amount of downstream work you get.
The ASI reiterated the point with regard to Australian steel:
We have seen some major Australian projects designed overseas or designed to Japanese standards and other international standards. This prohibits Australian steel from competing in that particular project, because we make to Australian standards, not Japanese standards. They are slightly different. That is certainly an obstacle that we have seen in the Australian major projects scene. In the past we have also seen a similar scenario in government shipbuilding, where we have taken up a French or Spanish design and we have then had that composition of steel to a Spanish or French specification, thereby outlining the fact that Australia just cannot compete or deliver on those specifications.
To circumvent the problem, Professionals Australia suggests that the procurement system should require that the design phase is undertaken in Australia. However this would not preclude overseas suppliers from government procurement opportunities:
If the overseas company wins it, fine, but they have got to set up here. They have got to have a base here. Inevitably, they will start using more local engineers, and the engineers will learn et cetera. If you do not do that, it is very hard to win downstream work.
A lack of upfront consideration of procurement issues during the scoping and design phase is also seen as hindering innovation. PT Blink, a leading innovator in the use of technology in the design and construction of large steel structures, told the Committee that innovative solutions should be considered at the beginning of the design process, not once the project is underway.
The Defence Rapid Prototyping, Development and Evaluation Program (RPDE) was brought to the Committee’s attention as a model that could be used to integrate procurement and project planning. RPDE is a joint Defence-Industry initiative which brings together Defence, industry and academia to ‘address complex Defence capability development and modernisation issues’ before a project goes to tender. Defence stresses the collaborative nature of the program and maintains that it fosters innovation:
It works by responding to requests from Defence capability manages to help them solve complex problems, which might be a technology challenge, a need and a requirement definition or industry capability questions. It really provides an opportunity to share information about Defence needs and receive feedback from members. It is an important program. It is really part of that whole new innovation strategy …
Effective contract management is considered essential to counter a number of implementation concerns. The ANAO stated the importance of efficient contract management, finding that ‘managing the contract is where the value for money actually comes from’. The current practice of including terms established during the tender process in the contract is expected to assist with successfully implementing the new clauses:
It is common practice for procurement officials to translate claims made by tenderers into contract clauses to ensure the Australian Government maximises procurement and contract outcomes. Finance expects that any claims made by tenderers in relation to new clauses will be similarly treated.
Consult Australia advocate the benefits of streamlined, standard contracts to encourage better definition of the scope of the work and lessen concerns over risk shifting from the beginning of a project:
Unfortunately the situation in Australia is that we spend far too much time on the second part of the contract—that is, transferring risk between the parties, often without properly managing that risk but merely transferring it—and not enough time on the scope of the work, so that we make sure that we are actually getting the definition of the project or the problem right in the first place.
The effective implementation of clause 10.10 and 10.37, in particular, would benefit from including the Australian standards specified in the tender documents, in the subsequent contract.
Contracts could be effectively used to provide government with better understanding and control of supply chains. The Australian Small Business and Family Enterprise Ombudsman (ASBFEO) consider that government should establish a direct contractual relationship with subcontractors to mitigate some of the risks associated with larger projects, by providing greater transparency:
It is about looking at the responsibility of government extending down through the supply chain … So if you look at security issues or occupational health and safety, they have sufficient priority to make sure that subcontractors in a procurement arrangement—those things are covered off. What we are flagging is government being an exemplar of what good procurement practice should be down through a supply chain. There are certain things that need to be stipulated all the way through that supply chain. That would include things like payment practices, making sure that payment terms are appropriate and having the ability for subcontractors to have a means by which of complaining without being then punished for it …
However, Defence is cautious about establishing direct contractual relationships with subcontractors:
It is very difficult for us in that relationship to actually mandate or control those subcontractor relationships at that level. We deal with this all the time. We do not have a capacity to actually control down into that subcontractor level other than if we hear about that performance.
Defence maintain that any difficulties being experienced by subcontractors would be reflected in the progress of the project and that Defence would hold the prime contractor to account, forcing the problem to be rectified.
Contract management is also seen as a significant factor in ensuring that supply chains do not breach human rights obligations. Current guidance suggests that officials may require suppliers to certify their compliance with regulations and/or regulatory frameworks and that officers may undertake their own investigations to confirm compliance. Witnesses suggest that this provides a foundation for making such certification mandatory for suppliers in ‘high risk’ contracts above a certain value. Further, this requirement should be supplemented with an annual reporting requirement for the term of the contract.
By contrast, the South Australian Industry Advocate illustrated how contract management could ensure that obligations are met. Terms and commitments agreed in the tendering process via the Industry Participation Plan (IPP) are included in the contract guaranteeing that compliance:
Once the successful tenderer has been identified then my office goes back and fine-tunes that industry participation plan with all of the commitments that were made in it so it is completely accurate. Once that fine-tuning or that finalisation has been done, the industry participation plan becomes an addendum to the contract and it is a commitment in the contract.
Accession to WTO GPA
As discussed in Chapter four, there already exists a range of broad exemptions that can be exercised without breaching Australia’s international obligations. However, there are concerns that Australia’s possible accession to the World Trade Organization (WTO) Government Procurement Agreement (GPA) may jeopardise some of these provisions.
According to the Department of Foreign Affairs and Trade (DFAT) website, Australia presented the WTO with a revised accession offer on 30 September 2016, which was discussed during the Government Procurement Agreement Committee meetings held in October 2016 and February 2017. On 25 May 2017 the Government introduced the Government Procurement (Judicial Review) Bill 2017 into the Parliament. It will meet Australia’s obligations should we accede to the WTO GPA:
The Bill will enable Australia to meet international obligations on government procurement that require the Commonwealth to establish or designate an impartial and independent body where suppliers can raise complaints about government procurement processes and be awarded remedies/compensation.
The Bill has been referred to the Senate Standing Committee on Finance and Public Administration which is due to report on 4 August 2017.
DFAT maintains that accession to WTO GPA will not have any impact on the implementation of the amended CPRs:
In terms of its effect on the recent changes to the CPRs in CPR17, Australia’s membership of the GPA is unlikely to have an impact beyond that of Australia’s existing FTAs. The rules and obligations in the GPA are not materially different to Australia’s existing FTAs.
Despite the reassurance from DFAT, Dr Thurbon warned that restrictions on public procurement are usually imposed on signatories to the WTO-GPA:
World Trade Organization (WTO) membership requires governments to curtail the use of local content requirements, direct export subsidies and preferential government procurement policies (which involve using government purchasing to support local firms).
This concern was corroborated by the Australian Fair Trade Investment Network (AFTINET) who argues that there is little evidence to suggest that acceding to the WTO GPA will improve opportunities for Australian businesses. Further, AFTINET claimed that Australia could put at risk its current flexibility to exempt small and medium enterprises (SMEs) and support local suppliers:
… the negotiations and concessions required in the accession process for the GPA could limit current and future policy options for both Commonwealth and state governments, leading again to a squeeze from both sides for Australian business.
It would be unwise for the Australian Government to trade away existing exemptions for government procurement, and options for future flexibility, in the vain hope of additional access to overseas government procurement markets, which based on past evidence is highly unlikely.
However, Dr Thurbon pointed out that during the accession process, countries can be exempt from certain restrictions usually imposed on WTO GPA signatories:
The WTOGPA does not typically permit preferences for SMEs, but both Korea and the [United States] secured exemptions for their SME set asides program. Similarly, the [Korea-United States Free Trade Agreement] exempts both countries’ small medium size business set-asides programs from the principle of non-discrimination.
Dr Thurbon provided two specific case studies of how other countries have promoted their small and medium enterprises to make them competitive.
United States – Small Business Innovation Research (SBIR) Program
The Small Business Innovation Research (SBIR) Program started in 1982 and requires some US federal government agencies to spend a percentage of their research and development budget on pre-commercial technology development assistance to local firms. According to Dr Thurbon:
The aim is to use the purchasing power of the government to fund the creation, commercialisation and early uptake of new, technology-based products by ‘small’ US companies. Each year, the agencies in question advertise their problem–sets and call for innovative proposals from local firms to address them. The agencies then fund successful bidders to develop and commercialise the proposed solution—from proof of concept to product delivery.
According to Dr Thurbon, this is allowed within international obligations because it uses the SME exception.
South Korea—Procurement Conditioned SME Research & Development Program
South Korea’s Procurement Conditioned SME Research & Development Program was implemented in 2002. It identifies products that the Korean government and large companies such as Samsung, regularly procure from overseas:
Korea’s Small and Medium Business Administration (SMBA) is primarily responsible for identifying products or localisation through regular survey of customs and government procurement data. Once a product is identified, the government looks for a local firm that is likely to be capable of developing a substitute product with a two year timeframe … If the substitute product is successfully produced, the government agency or private conglomerate must then submit a procurement plan and commit to purchasing the product from the local firm for a certain period of time.
There are pre-designated joint contributions for the program. If the project is for a government agency, the government contribution is 75 per cent of the development cost, with the local firm taking up 25 per cent. If the buyer is a private firm, the governments contribution is 50 per cent, with the local and private firm each evenly contributing the final 50 per cent.