Preference
to Australian Goods (Commonwealth Authorities) Act 1980
No.
113 of 1980
An
Act to give preference, in the procurement of goods for Commonwealth
authorities, to goods of Australian origin or having an Australian content
[Assented to 8 September 1980]
BE IT ENACTED by the Queen, and the Senate
and the House of Representatives of the Commonwealth of Australia, as follows:
Short title
1. This Act may be
cited as the Preference to Australian
Goods (Commonwealth Authorities) Act 1980.
Commencement
2. This Act shall
come into operation on a date to be fixed by Proclamation.
Interpretation
3. (1) In this Act, unless the contrary
intention appears—
“Commonwealth authority” means an authority or body
(including a body corporate and a corporation sole) established for a public
purpose by, or in accordance with the provisions of, a law of the Commonwealth
or of the Australian Capital Territory, but does not include an
intergovernmental body that is prescribed for the purposes of this definition;
“goods” includes ships, aircraft, vehicles,
machinery and equipment;
“inter-governmental body” means a body corporate or
an unincorporated body established by, or in accordance with the provisions of,
an agreement between the Commonwealth and a State or States or between the
Commonwealth and the Government of another country or the Governments of other
countries;
“list of registered tenderers”, in relation to a
Commonwealth authority, means a list maintained by the authority in accordance
with section 6;
“procurement”, in relation to goods, includes
identifying a requirement for the goods (including preparing any necessary
specifications);
“tender price”, in relation to goods the subject of
a tender or quotation, means—
(a) the duty-paid price of the goods included in the
tender or quotation, as the case may be, in accordance with section 8; or
(b) if there is no such duty-paid price of the
goods—the price at which, in accordance with the tender or quotation, as the
case may be, the supplier is willing to supply the goods.
(2) Where a
specification of a requirement for goods for a Commonwealth authority includes
related services, this Act applies in relation to those goods and related
services as if a reference in this Act to goods were a reference to goods and
related services.
Specification of requirement
4. (1) A Commonwealth
authority, in preparing a specification of a requirement for goods for the
authority, shall ensure that the specification is not drawn up so as to exclude
goods of Australian origin or goods having an Australian content, being, in
either case, goods that are suitable, or reasonably capable of being adapted,
for meeting that requirement.
(2) The Minister
may, by instrument in writing, issue guidelines to assist Commonwealth
authorities to comply with sub-section (1).
Tenders or quotations to be invited
5. (1) Subject to sub-section (2), where a
Commonwealth authority has a requirement for goods, the authority shall
publicly invite, or shall invite from a list of registered tenderers maintained
by the authority, in such manner as is prescribed, tenders for the supply of
those goods.
(2) Where a
Commonwealth authority has a requirement for goods the estimated cost of which
does not exceed such amount as is prescribed for the purposes of this
sub-section, the authority, at its option, may—
(a) invite tenders, in accordance with sub-section
(1), for the supply of those goods;
(b) obtain representative quotations, in such manner
as is prescribed, for the supply of those goods; or
(c) if—
(i) the Commonwealth authority does not wish to
invite tenders for the supply of those goods; and
(ii) it is not practicable to obtain representative
quotations for the supply of those goods,
obtain those goods in such manner as the authority thinks appropriate.
(3) Where the
Secretary certifies, in writing, that compliance with this section in respect
of goods of a kind specified in the certificate is impracticable or inexpedient
having regard to the nature of goods of that kind and to the established practices
in a profession, business, trade or industry connected with the supply of goods
of that kind, this section does not apply in relation to a requirement for
goods of that kind.
(4) Where the
Secretary certifies, in writing, with respect to a particular requirement for
goods, that compliance with this section is impracticable or inexpedient—
(a) by reason of the urgency with which those goods
are required;
(b) by reason of the sources from which those goods
are to be obtained; or
(c) for any other reason,
this section does
not apply in relation to that requirement.
(5) Where the
Secretary certifies, in writing, that the law under which, or in accordance
with which, a Commonwealth authority is established, or any regulations in
force under that law, makes, or make, provision with respect to that authority
that is analogous to the provision made by regulations in force under the Audit Act 1901 for inviting tenders or
quotations for the supply of goods, this section does not apply in relation to
any requirement for goods by that authority.
(6) The Secretary
may, either generally or as otherwise provided by the instrument of delegation,
by writing signed by him, delegate to a person any of his powers under this
section, other than this power of delegation.
(7) A power so
delegated, when exercised by the delegate, shall, for the purposes of this
section, be deemed to have been exercised by the Secretary.
(8) A delegation
under sub-section (6) does not prevent the exercise of a power by the
Secretary.
(9) In this section—
“Commonwealth authority” does not include an
authority in relation to which the provisions of regulations in force under the
Audit Act 1901 for inviting tenders
or quotations for the supply of goods are applicable;
“Secretary” means the Secretary to the Department of
Administrative Services.
List of registered tenderers
6. (1) A Commonwealth
authority may, in such manner as is prescribed, issue a public invitation to
persons who wish to be invited, from time to time, to furnish tenders for the
supply of goods to the authority.
(2) Subject to
sub-section (5), a Commonwealth authority shall maintain a list of names of
persons who have responded to an invitation referred to in sub-section (1) and
shall, in such manner as is, and at such times as are, prescribed, issue a
public invitation to persons who wish to have their names added to that list.
(3) A person may, at
any time, make application to a Commonwealth authority to have his name added
to a list of registered tenderers maintained by that authority.
(4) A Commonwealth
authority may, if it thinks it desirable to do so, remove the name of a person
from a list of registered tenderers maintained by that authority.
(5) Where a
Commonwealth authority wishes to cease to maintain a list of registered
tenderers, the authority may serve by post on each person whose name is on the
list a notice that the authority intends to cease to maintain the list on a
date specified in the notice.
Postponement or cessation of action on tenders
7. Where a
Commonwealth authority invites tenders for the supply of goods, the Minister,
at any time after the issue of that invitation and before the acceptance of the
successful tender, may, if he is satisfied that the circumstances of the case
require it, by instrument in writing, direct the Commonwealth authority—
(a) to postpone any further action by it with
respect to any tenders received in accordance with that invitation until the
direction is revoked or a further direction is given under this section; or
(b) to withdraw the invitation for tenders or, if
the date for lodgement of tenders has passed, to inform each of the tenderers
that no tender will be accepted.
Duty-paid price of goods
8. (1) A person who furnishes to a
Commonwealth authority a tender, or a quotation, for the supply of goods (in
this section referred to as “goods to be supplied”) that consist of, or
include, goods, or parts of goods, that, if the tender is accepted—
(a) are to be imported into Australia by the person
on behalf of the authority for the purposes of the relevant contract; and
(b) by reason of having been so imported, will be
exempt from duties of customs,
shall include in
the tender or quotation, as the case may be, in addition to the price at which
he is willing to supply the goods to be supplied, a duty-paid price for the
goods to be supplied.
(2) Where a
Commonwealth authority is satisfied that—
(a) a duty-paid price set out in a tender or
quotation furnished to it is incorrect for any reason; or
(b) a duty-paid price set out in a tender or
quotation furnished to it is no longer appropriate by reason of a change in the
rate of the duty of customs applicable to the goods concerned,
the Commonwealth
authority may, by notice in writing served on the person who furnished the
tender or quotation, inform him of the fact that the duty-paid price is
incorrect or is no longer appropriate, as the case may be, and request him to
notify the authority, within a period specified in the notice—
(c) where the duty-paid price set out in the tender
or quotation is incorrect—of the correct duty-paid price in relation to the
goods concerned; or
(d) where the duty-paid price set out in the tender
or quotation is no longer appropriate by reason of a change in the rate of the
duty of customs applicable to the goods concerned—of the duty-paid price in
relation to the goods concerned calculated on the assumption that the date on
which the goods are to be imported into Australia is the date of the notice.
(3) Where a notice
has been served on a person under sub-section (2), the Commonwealth authority
concerned shall not accept any of the tenders or quotations received for the
supply of the goods concerned until the expiration of the period specified in
the notice and, after the expiration of that period, the Commonwealth authority
shall exclude the tender or quotation to which the notice relates from any
further consideration unless the person on whom the notice was served has
complied with the notice.
(4) In this section,
“duty-paid price”, in relation to goods to be supplied that consist of, or
include, goods, or parts of goods, that are to be imported into Australia by
the supplier on behalf of the Commonwealth authority concerned, means the price
equal to the price at which the supplier is willing to supply the goods to be
supplied plus an amount equal to the duty of customs that would be payable on
the goods to be supplied, or on such of those goods, or such parts of those
goods, as are to be so imported into Australia, if they were to be imported
into Australia by, and on behalf of, the supplier at the time when the tender
or quotation is furnished.
Method of calculation of Australian content of goods
9. (1) The regulations may make provision
for the method of calculation of the value of the Australian content of goods.
(2) In this Act
(other than this section), a reference to the Australian content of goods shall
be read as a reference to the proportion (expressed as a percentage) that the
value, calculated in accordance with the method prescribed in the regulations,
of the Australian content of the goods bears to the tender price of the goods.
Method of determination of origin of goods
10. (1) The regulations may make provision
for the determination of the origin (whether Australian origin or otherwise) of
goods.
(2) Where the
regulations make provision for the determination of the origin of goods of a
particular kind, a reference in this Act (other than this section) to the
origin of goods shall, in relation to goods of that kind, be read as a
reference to the origin of the goods as determined in accordance with the
regulations.
Australian content of goods or the origin of goods
to be set out in tenders or quotations
11. (1) Where—
(a) a Commonwealth authority invites tenders for the
supply of goods; and
(b) the estimated cost of the goods exceeds such
amount as is prescribed,
the Commonwealth
authority shall require that there be set out in the tender the Australian
content of the goods.
(2) Subject to
sub-section (1), where a Commonwealth authority requests tenders or
representative quotations for the supply of goods, the Commonwealth authority
shall, at its option—
(a) require that there be set out in the tender or
quotation the Australian content of the goods; or
(b) require that there be set out in the tender or
quotation the origin of the goods.
(3) The Commonwealth
authority concerned may, by notice in writing served on a person who has
furnished a tender or quotation to the authority, require that person to
furnish to the authority, within a period specified in the notice, such further
information (including copies or summaries of relevant books or accounts or
other documents) as is specified in the notice, being information with respect
to the Australian content, or the origin, of goods that is set out in the
tender or quotation, and, if that notice is not complied with, the tender or
quotation may be excluded from further consideration.
(4) The Minister may
direct a Commonwealth authority to exercise its power under sub-section (3) in
a particular case.
Method of adjustment of tender price
12. (1) Where a call for tenders or
quotations requires that there be set out in each tender or quotation the
Australian content of the goods, the tender price of goods the subject of a
tender or quotation submitted in response to that call, being goods having an
Australian content, shall be adjusted, for the purposes of section 13, by
subtracting from that price an amount equal to 20%, or such other percentage as
is prescribed, of the value of the Australian content of the goods, being that
value calculated in accordance with the method prescribed in the regulations in
force under sub-section 9(1).
(2) Where a call for
tenders or quotations requires that there be set out in each tender or
quotation the origin of the goods, the tender price of goods the subject of a
tender or quotation submitted in response to that call, being goods the origin
of which is a country other than Australia, shall be adjusted, for the purposes
of section 13, by adding to that price an amount equal to 20%, or such other
percentage as is prescribed, of that price.
Acceptance of tenders or quotations
13. (1) For the purposes
of this section—
(a) tender prices shall be adjusted in accordance
with the provisions of section 12; and
(b) where a tender price in relation to goods is so
adjusted—that price, as so adjusted, shall be deemed to be the tender price of
the goods as set out in the tender.
(2) Subject to this
section, the lowest suitable tender of the tenders received for the supply of
goods for a Commonwealth authority shall be accepted.
(3) A Commonwealth
authority may refer to the Minister for his direction the question whether a
tender should be treated as unsuitable for further consideration, and shall do
so in any case where the regulations so provide.
(4) For the purpose
of ascertaining the lowest tender of the suitable tenders received for the
supply of goods for a Commonwealth authority, regard shall be had to the tender
prices of the goods as set out in those tenders.
(5) A Commonwealth
authority may refer to the Minister for his direction the tenders received for
the supply of goods (being tenders in which the Australian content of the goods
concerned is required to be set out) and shall
do so if—
(a) the tender price of the goods as set out in the
lowest suitable tender equals or exceeds $100,000 or such other amount as is
prescribed for the purposes of this sub-section; and
(b) the percentage figure representing the
Australian content of goods set out in the lowest suitable tender is less than
the percentage figure representing the Australian content of goods set out in
any of the other suitable tenders.
(6) For the purposes
of sub-section (5), where the percentage figure representing the Australian
content of goods set out in a tender is less by not more than 10 than the
percentage figure representing the Australian content of goods set out in
another tender, the 2 percentage figures shall be deemed to be equal.
(7) A reference
under sub-section (3) or (5) shall be supported by such related documents as
are prescribed.
(8) A Commonwealth
authority shall furnish to the Minister such further information relating to a
reference under sub-section (3) or (5) as the Minister requires.
(9) In considering a
reference under sub-section (5), the Minister shall take into account all the
circumstances of the case and may have regard to the national interest and may,
by instrument in writing—
(a) direct the acceptance of that one of the tenders
received for the supply of the goods that, in his view, is the appropriate
tender;
(b) direct the Commonwealth authority concerned to
inform each of the tenderers that no tender will be accepted; or
(c) where in the call for tenders the Commonwealth
reserves the right to accept separate tenders for each or any item, or any part
of an item, to which the call relates—direct the acceptance of 2 or more
tenders that, in his view, are the appropriate tenders.
(10) Where a
reference of a question is made to the Minister under sub-section (3) or (5),
the question shall be resolved in accordance with the direction, in writing, of
the Minister.
(11) In this section,
“tender” includes any quotation for the supply of goods.
Section 13 not to apply in relation to certain
tenders
14. (1) Unless the Minister otherwise
directs in a particular case, section 13 does not apply in relation to tenders
received for the supply of goods for a Commonwealth authority if the tenders
set out the Australian content of the goods concerned and—
(a) all the percentage figures representing
Australian content of goods that are set out in such of those tenders as are
suitable tenders are equal; or
(b) the lowest of those percentage figures is less
by not more than 10 than the highest of those percentage figures.
(2) A Commonwealth
authority may refer to the Minister for his direction the question whether a
tender should be treated as unsuitable for further consideration, and shall do
so in any case where the regulations so provide.
(3) In this section,
“tender” includes any quotation for the supply of goods.
Commonwealth authority not to form company
15. Except with the
approval of the Minister, a Commonwealth authority shall not—
(a) form, or participate with another person in the
formation of, a company; or
(b) acquire a controlling interest in a company,
with the object
(whether the principal object or a subsidiary object) of empowering the company
to engage in the procurement, or in any step in the procurement, of goods for
the authority.
Publication of Australian content of goods
16. (1) Where a tender for the supply of
goods for a Commonwealth authority has been accepted, the Australian content of
the goods, if set out in the tender, may be published to such persons, and in
such circumstances, as are prescribed.
(2) In this section, “tender”
includes any quotation for the supply of goods.
Exemption
17. (1) Where the Minister is satisfied
that the application of this Act to a Commonwealth authority would have the
effect of affecting adversely—
(a) the commercial viability of any business carried
on by the authority; or
(b) the ability of the authority to perform its
functions or to comply with any financial requirement applicable to it,
the Minister
shall, by instrument in writing, declare that this Act does not apply to that
authority.
(2) Where the
Minister is satisfied that the application of this Act to the procurement for a
Commonwealth authority of—
(a) particular goods;
(b) goods of a particular kind or particular kinds;
or
(c) goods other than goods of a particular kind or
particular kinds,
would have the
effect of affecting adversely—
(d) the commercial viability of any business carried
on by the authority; or
(e) the ability of the authority to perform its
functions or to comply with any financial requirement applicable to it,