Effective date: 1 July 2021
Information to be disclosed - key details of contracts
Disclose the information required by the applicable form on the website or system nominated by the Secretary for contracts for Works or Construction Services.
Information to be disclosed - contracts subject to full disclosure
Where an Agency holds the right to publish full contract information, disclose full contract information for contracts for Works or Construction Services, in addition to disclosing the information required by the applicable form on the website or system nominated by the Secretary:
- where the estimated value of the contract exceeds $10 million (inclusive of GST);
- where Financial Reporting Direction 12B (Disclosure of major contracts) applies; and
- subject to grounds to withhold certain information from disclosure.
Special provisions apply when disclosing the following documents forming part of a contract:
- plans or drawings; and
- where an Agency does not hold the right to publish all or part of a contract due to third party intellectual property rights.
Plans or drawings forming part of a contract
Agencies are not required to publish online plans or drawings that form part of a contract.
Agencies must make plans or drawings that form part of the contract documents available for inspection on request, subject to any grounds to withhold certain information from disclosure.
Agencies must state that plans or drawings are available for inspection on request as part of the contract disclosure.
Where an Agency does not hold the right to publish the terms and conditions of contract
Where an Agency does not hold the right publish the terms and conditions of a contract on the website or system nominated by the Secretary due to third party intellectual property rights, the Agency must:
- disclose key details of the contract;
- make full contract information available for inspection on request, subject to any grounds to withhold certain information;
- state, as part of the key details of the contract, that the full contract information is available for inspection on request; and
- state, as part of the key details of the contract, that it is not possible to disclose the full contract information due to third party intellectual property rights.
For clarity, when an Agency cannot publish the terms and conditions of a contract, full contract information includes the terms and conditions of contracts and documents attached to the contract.
Where an Agency does not hold the right to publish a document attached to a contract
Where an Agency does not hold the right to publish a document attached to a contract on a website or system nominated by the Secretary due to third party intellectual property rights, Agencies must:
- publish those parts of the contract for which it holds intellectual property rights (for clarity, this may include the terms and conditions of contract);
- make the documents that are not published available for inspection on request, subject to any grounds to withhold certain information;
- state, as part of the key details of the contract, which contract documents are not included in the disclosure; and
- state, as part of the key details of the contract, that it is not possible to disclose those contract documents due to third party intellectual property rights.
Examples of contract documents where an Agency may not hold the right to publish on a website include:
- specifications prepared by a designer;
- site investigation reports; and
- technical reports.
Withholding certain information from contracts subject to full disclosure
Only trade secrets or genuinely confidential business information can be withheld from voluntary disclosure, along with material that, if disclosed, would seriously harm the public interest. Agencies will be guided by the criteria established in the Freedom of Information Act 1982 (Vic).
A decision to withhold certain information or documents may be justified in certain circumstances to maintain confidentiality or privacy (including, for example, where confidentiality is a contractual requirement, or under specific legislation). Confidentiality and commercial in confidence clauses should only be included where there is strong justification for confidentiality.
Any decision to withhold certain information should be made on the basis of withholding the minimum amount of information and disclosing the balance of the information.
Agencies must state when a partial disclosure is made as part of the contract disclosure. Where appropriate, Agencies should state when the information that is withheld will be disclosed.
Redacting information from contracts subject to full disclosure
Any decision to redact information from a contract document should be made on the basis of redacting the minimum amount of information and disclosing the balance of the information.
Agencies must state when a contract document is redacted and must describe the scope of the redaction within the document that is redacted.
Special provisions apply when redacting commercial business information presented in schedules to a contract:
- describing personnel;
- rates for works, services or personnel;
- Bill of Quantities;
- proprietary work method; and
- time schedule with related resource allocations.
Schedule to a contract describing personnel
Agencies must keep the schedule within the disclosed document and:
- redact the names of personnel;
- redact resume information that allows personnel to be identified; and
- provide a list of the classifications of personnel subject to the redaction.
Schedule to a contract describing rates for works, services or personnel
Agencies must keep the schedule including the description of the items to which the rates apply within the disclosed document and:
- redact the rate applied to the works or services; and
- disclose the total value of works or services subject to the rates.
Schedule to a contract containing a Bill of Quantities
Agencies must keep the schedule including the list of bill items and bill quantities within the disclosed document and:
- redact the rate applied to each item;
- redact the value applied to the item; and
- disclose the total value of items listed in the Bill of Quantities.
Schedule to a contract containing a proprietary work method
Agencies must keep the schedule within the disclosed document and:
- redact those elements of the work method that are proprietary; and
- disclose other parts of the work method that are general to the industry.
Schedule to a contract containing a time schedule with related resource allocations
Agencies must keep the schedule within the disclosed document and:
- redact the resource allocations to the extent that this may expose a rate; and
- disclose the description of items and the time periods that apply.
Disclosing contract variations
Agencies must update the contract disclosure record if variations or amendments are made to a contract for Works or Construction Services. Variations or amendments to contracts must be disclosed on the contract record to which the variation relates.
Variations to contracts must be disclosed, at the latest, when:
- for contracts for Works (when the Works are substantially complete at practical completion) - the contract reaches practical completion;
- for contracts for Works (when there are ancillary Works outstanding at practical completion) – the contract reaches practical completion for those Works completed up to practical completion, with additional variation disclosures, as needed, as the ancillary Works are completed; or
- for contracts for Construction Services – the contract ends.
Where a variation to a contract is subject to an unresolved claim at practical completion, disclose the variation subject to the claim as an additional variation disclosure when the claim is settled.
Amendments to contracts that follow from taking up options under the contract must be disclosed within 30 days of exercising the option.
A summary variation representing all the variations must be disclosed on the contract record. The summary variation must describe:
- the total value of all of the variations; and
- individually describe each variation with a value greater than the higher of either $100,000 (inclusive of GST) or more than 10% of the contract value. To avoid doubt, the value of each variation does not need to be disclosed.
The following table describes how to disclose changes under contracts for Works or Construction Services.
| Contract contains | Initial disclosure | Revised disclosure |
|---|---|---|
| Contingency allowances | Contract description, contract duration and contract value of the initial scope as agreed to by the supplier, without disclosing the contingency allowance |
Adjust the contract period and contract value as required Treat the additional works or services as one of the variations within the summary variation. The variation that arose via the contingency allowance does not need to be individually identified |
| Time period extension options | Contract description, contract period and contract value over the initial term as agreed with the supplier |
Adjust the contract period and value as required Describe each time period extension as if it was a variation, noting that it arose from a time period extension option under the contract |
| Options for additional Works or Construction Services | Contract description, contract duration and contract value of the initial scope as agreed with the supplier |
Adjust the contract description, period and value as required Describe each additional work or service as if it was a variation, noting that it arose from an option under the contract |
| Schedule of rates |
Describe that the contract is a schedule of rates contract Advise that periodic updates to the disclosure will be made to reflect the actual scope of the works or services undertaken Describe the frequency when updates to the disclosure will be made Disclose the initial scope of works and initial estimated contract value as instructed to the supplier |
Adjust the contract description, period and value as required Describe each additional component as if it was a variation, noting that it arose as a periodic disclosure under a schedule of rates contract |
The following table describes how to disclose Works or Construction Services undertaken in stages.
| Form of contract stage | Initial disclosure | Revised disclosure |
|---|---|---|
| Project undertaken in stages, where separate contracts are awarded for each stage |
Disclose each stage contract as a separate disclosure Refer to the other stage contracts by describing the other stage contracts and the applicable contract numbers |
Update the disclosure for the first stage to refer to later stage contracts, by describing the other stage contracts and the applicable contract numbers |
| Single contract with provision for staged implementation | Contract description, contract duration and contract value of the first stage as agreed with the supplier |
Adjust the contract description, period and value as additional stages are implemented Describe each additional stage as if it was a variation, noting that it arose from staged implementation under the contract |
| Revision | Date | Reference | Details |
|---|---|---|---|
| 1/7/2018 | First release | ||
| 1 | 30/12/2018 | Disclosing contract variations |
In the paragraph ‘Variations to contracts must be disclosed, at the latest’, clarify when to disclose contract variations when there are ancillary Works outstanding at practical completion. Following the paragraph ‘Variations to contracts must be disclosed, at the latest’, insert new paragraph that clarifies when to disclose a variation to a contract that is subject to an unresolved claim at practical completion. |
| 2 | 1/07/2021 | Information to be disclosed – contracts subject to full disclosure | Clarify that this requirement applies where an Agency holds the right to publish full contract information. |
| 2 | 1/07/2021 | Where an Agency does not hold the right to publish the terms and conditions of contract | Insert new section setting out requirements that apply when an Agency does not hold the intellectual property rights to publish the terms and conditions of contract. |
| 2 | 1/07/2021 | Where an Agency does not hold the right to publish a contract document |
Amend heading to read: Where an Agency does not hold the right to publish a document attached to a contract. Insert amendments that set out requirements that apply when an Agency does not hold the intellectual property rights to publish a document attached to a contract. |
Tools and support
The Contracts module on the Victorian Government tender system Buying for Victoria Supplier Portal (formerly Tenders VIC) is the nominated system for the disclosure of the outcome of tender processes.
The Practitioners Toolkit includes key documents, guidance and information relating to the Ministerial Directions and Instructions.
For further information about the Ministerial Directions and Instruction for public construction procurement, please contact the Construction Policy Team.