A brief review of the public procurement practice in Australia, New Zealand and the United States
Contents
Australia 1
New Zealand 7
United States 11
Conclusion 17
Australia
In regards to public procurement, the Australian government has made a concerted effort to engage in transparent procurement processes and to ‘maintain a strong focus on achieving value for money.’ Primarily the establishment of a procurement policy framework facilitates the pursuit of these goals. This framework is comprised of three primary elements, which include:
▪ the Commonwealth’s Procurement Guidelines (issued by the Finance Minister) which establish the procurement policy framework for agencies.
▪ Finance Circulars (issued by the Department of Finance and Administration/DOFA) which advise of any key changes in the procurement policy framework and
▪ a range of web-based and printed publications designed to assist agencies in conforming to the procurement policy framework.
In the Commonwealth Government, the management of procurement is largely decentralized and as such each agency is responsible for its own procurement as long as it follows the procurement policy framework.[1] This framework is delineated in both the electronic and printed publication of the Commonwealth’s Procurement Guidelines (CPG). The 64 page document offers information regarding the procurement process and is partitioned into three main sections, each with several subsections. The first focuses on the core principles of value for money and other elements of the procurement policy framework which apply to all procurements. The second is comprised of Mandatory Procurement Procedures (MPP) which is essentially a set of rules and procedures with which agencies must comply when conducting any covered procurement.[2] The final section focuses on the other government policies which dictate the relationship between the legislation and government policies which may impact the procurement policy framework.
The document defines the procurement process as the entire process of acquiring property or services beginning with an agency’s identification of needs and the decision on procurement requirements. It goes on to assert that procurement further consists of risk assessment, seeking and evaluating alternative solutions, contract awards, delivery and payment for property and services, the management of the contract and the consideration of relevant options, and when applicable, the ultimate disposal of property. As well, the term procurement includes situations where an agency is responsible for procurement of other agencies and third parties. To maintain transparency and the continued application of best practices, the Australian government and more specifically, the Ministry of Finance and Administration, are engaged in constant monitoring and assessment of the procurement cycle.
Legislation Relevant to Procurement
The Commonwealth’s Procurement Guidelines are issued by the Ministry of Finance and Administration under the Regulation 7 of the Financial Management and Accountability (FMA) Regulations of 1997. This general goal of this directive is to normalize the Australian Government’s expectations of all departments and agencies involved in the procurement process. To ensure transparency and a system of checks and balances, a number of regulations have been implemented[3]. Regulations of primary significance are as follows:
- Regulation 3, which defines a number of terms including but not limited to what constitutes an agency agreement, an approver, a Commonwealth contract, a financial task, and FMA, orders.
- Regulation 6 which defines the conditions under which Chief Executives of an Agency may or may not confer instructions (CEI’s) to officials within the Agency. These conditions include but are not limited to the handling, spending, and accountability of public money, the recuperation of money owed to the Commonwealth, and the acquisition and disposal of public property.
- Regulation 7 dictates the conditions under which the Finance Minister may issue CPG’s concerning matters related to procurement. These conditions include but are not limited to matters affecting Commonwealth contracts or agency agreements, the publication of details of contracts and agreements, and the disposal of public property. As well this regulation mandates that CPG’s be congruent with FMA Orders.
- Regulation 8.1 requires officials to have regard to the CPG’s when performing duties related to public procurement. The following section of the regulation, 8.2, requires officials who act in a manner inconsistent with the CPG’s to document and explain their reasons for doing so.
- Regulation 9 requires that proposals to spend public money (including proposed procurement of property or services) must be permitted by an approver[4]. The approver must be fully satisfied that expenditures are in accordance with Commonwealth law, is an efficient and effective use of the money, and if proposals are to spend public money, is consistent with the terms under which the money is held.
- Regulation 10 mandates that any proposal to approve the spending of public money requires the signature of the Finance Minister.
- Regulation 13 prohibits any person from entering a contract, agreement or arrangement under which public money is or may become payable unless a proposal for the contract has been approved under Regulation 9. Should a spending proposal be approved and is not documented in writing at the time of agreement, Regulation 12 requires approvers to provide written record of the terms of approval as soon as practicable after the approval is given.
In conjunction with the CPG’s, there are other legislative elements tied to the procurement process, one of which is the Commonwealth Authorities and Companies Act (CAC) of 1997. Those bodies subject to CAC law are legally and financially independent of the Commonwealth itself and are generally not subject to CPG. However in certain circumstances CAC bodies listed under the Commonwealth Authorities and Companies Regulations 1997, as subject to section 47A[5] of the CAC act, may be directed by the Finance Minister to adhere to CPG’s. With power granted from the Finance Minister’s (CAC Act Procurement) Directions 2004, the Finance Minister can require these bodies to adhere to CPG’s whenever such bodies are engaged in duties related to procurement of property and services and force them to comply with mandatory procurement procedures in all circumstances involving covered procurements. Other powers germane to the procurement process are those of the Chief Executives of the agencies involved. Chief Executives are granted the power to issue Chief Executives Instructions (CEI) in matters necessary or convenient in carrying out the FMA Act or FMA regulations. The CPG’s provide the outline under which these Chief Executives may prepare these instructions and associated operational guidance related to procurement in specific agencies.
Public Resources
As a result of the Australian government’s effort to maintain transparency in regards to procurement, a number of resources designed to assist all parties involved in the procurement process in meeting relevant government mandated directives have been made publicly available. Electronically, one can find much of the necessary information concerning the procurement policy framework by following links from the homepage of the Australian Department of Finance and Administration (DOFA). The Procurement page contains information including but not limited to procurement policy and guidance, procurement circulars, accessibility, and frequently asked questions. Additionally one can find links to other sources of useful information concerning government tenders and contracts.
One of these sources, the AusTender webpage, is quite beneficial and demonstrates the government’s efforts to engage in transparent procurement practices. AusTender is the official website of the Australian Government tender system and here one can find information on proposed, current, and closed tenders freely available to the public. One can also find a published list of contracts reported and a link to multi-use lists. The latter is significant in that it has been designed to provide a list of pre-qualified suppliers of goods and services who have satisfied all of the necessary conditions for inclusion in the procurement process. As well, there are links to information on procurement plans, policy documents, the privacy policy, terms of use, the help desk, and agency addresses.
Via AusTender both government agencies and the general public can view contract related information such as opening and closing dates, procurement methods, contract values, agencies, etc. While the contract methods are comprised primarily of three different types of procurement, a number of the contracts posted on the Gazette employ a direct source procurement method. These are specific procurements in which the government may choose one or more suppliers of their choice and where mandatory procurement procedures are limited. Unfortunately the information provided by AusTender is limited and information concerning things such as protests, late payments, and the number of bidders in the competition is non-existent. As well, although some comprehensive statistics have been provided by DOFA, they are rather meager and a more inclusive statistical analysis is possible.
In regards to tenders and the bidding process, agencies give consideration to the scope, scale, risk and complexity of the projects and are required to allow at least 25 calendar days for suppliers to prepare and submit proposals (from the time the invitation to bid is published). This may however be reduced to as low as 10 days depending on the situation. Such instances include when the details of the procurement have already been published in the Annual Procurement Plan and have been available for 30 days, when agencies procure commercial property or services, or when there is a genuine sense of urgency. At the time this research was conducted, the amount of time vendors are given to submit bids on projects ranged anywhere from 3 to 6 weeks with an average of approximately 4 weeks. On two occasions, vendors were given less than two weeks to prepare their bids and on one occasion were given almost six months. Overall, however, there is substantial time for interested parties to prepare and submit proposals.
Another useful resource on Procurement webpage is the document entitled Selling to the Australian Government: A Guide for Business. This document is designed to assist suppliers of goods and services in identifying opportunities and consequently competing for government business by submitting competitive tenders. In addition, the publication offers links to a variety of useful institutions designed to inform and assist suppliers. Yet a third resource of utility is a link to a page entitled Other Business Opportunities with Governments. This page contains a wide array of electronic tender services not only at the local and state levels in Australia but also similar services with the OECD, WTO, European Union, Singapore, New Zealand, Japan, and the United States.
Protests
The Purchasing Advisory and Complaints Service (PACS) is the first point of contact for those who wish to protest an agency’s decision regarding a tender although due to the nature of the procurement process the individual filing the complaint is usually redirected by the PACS to the original agency. When contestations arise, the CPG’s require that agencies engage in fair and equitable procedures in which all parties involved have a clear understanding of the process. The CPG’s also require that senior management and officials independent of the process be involved when necessary. Protests should be in writing and all parties must be given no less than 10 days to respond to developments.
Statistics
To gain a better understanding of the procurement process in Australia, it might be of utility to look at some relevant statistics regarding contracts. The following data presents aggregated information that has been extracted from AusTender - Contracts Reported. It reflects contractual information reported during the relevant financial year in accordance with the Guidance on Procurement Publishing Obligations, and does not represent actual expenditure. These figures are made publicly available on the government’s procurement webpage. The tables below offer a humble breakdown of contracts by sector and then by agency. From the data in the first table, one can see that the service sector is the favored one when awarding contracts followed by the manufacturing and primary sectors. By 2005, the value of service contracts was over twice that of its 1999 level.
NUMBER AND VALUE OF CONTRACTS BY SECTOR
Industry Sector1 / Primary / Manufacturing / Services / Total2004-05 / Value $m / 132.8 / 6,746.6 / 16,593.8 / 23,473.2
Number of Contracts / 860 / 52,236 / 100,416 / 153,512
2003-04 / Value $m / 69.0 / 4,500.6 / 12,795.2 / 17,364.8
Number of Contracts / 951 / 63,529 / 122,225 / 186,705
2002-03 / Value $m / 100.4 / 6,088.8 / 15,912.7 / 22,101.9
Number of Contracts / 1,244 / 77,546 / 137,800 / 216,590
2001-02 / Value $m / 101.5 / 4,764.1 / 10,358.3 / 15,223.9
Number of Contracts / 1,398 / 65,396 / 117,627 / 184,421
2000-01 / Value $m / 327.4 / 6,338.2 / 9,673.9 / 16,339.5
Number of Contracts / 2,541 / 54,347 / 105,717 / 162,605
1999-00 / Value $m / 178.8 / 2,601.9 / 7,122.3 / 9,903.0
Number of Contracts / 2,775 / 43,651 / 82,531 / 128,957
Source: AUSTENDER
As well, one can see from the second table that the Department of Defence (DOD) is the dominant agency with the value of all contracts surpassing USD 12 billion and comprising over half of the total value of all contracts.
CONTRACTS NOTIFIED BY THE TOP 10 FMA AGENCIES
2004 – 05 / RankAgency / Value $M / % of Total Value / 2004-05 / 2003-04
Dept. of Defence / 12,374 / 52.7 / 1 / 1
Nat. Blood Authority / 1932 / 8.2 / 2 / N/A
Veterans Affairs / 1932 / 8.2 / 3 / 2
Dept. of Immigration & Multicultural and Indigenous Affairs / 1357 / 5.8 / 4 / 3
Centrelink / 846 / 3.6 / 5 / 4
Australian Taxation Office / 833 / 3.6 / 6 / 5
Australian Customs Service / 486 / 2.1 / 7 / 18
Dept. of Finance and Admin. / 480 / 2.0 / 8 / 11
Dept. of Health and Aging / 420 / 1.8 / 9 / 9
Dept. of Transport & Regional Services / 382 / 1.6 / 10 / 17
Other / 2,428 / 10.3
Total of Top 10 Agencies / 21,044 / 89.7
Total of Other Agencies / 2,428 / 10.3
Total of All Agencies / 23,473 / 100
Source: AUSTENDER
Unfortunately, statistical information concerning procurement is somewhat limited. In an effort to obtain more comprehensive statistics, an email was sent to the Procurement Policy Branch at the Australian Department of Finance and Administration. I was informed that each Australian Government agency is responsible for its own procurement processes and as such there is no central information repository. As the DOD dominates in contracts by value, a visit was paid to the DOD procurement webpage in an effort to acquire further data. While some information on current requests for tenders was available, any attempt to obtain more detailed information ultimately resulted in a return to the AusTender homepage. Although published annual reports do provide some material, visiting agency homepages proved to be a less than fruitful endeavor overall.